HC Deb 17 August 1857 vol 147 cc1736-66

Order for Committee read.

House in Committee; Mr. FITZROY in the Chair.

Clause 30.

MR. HENLEY

said, that in Clause 16, provision was made that in all suits other than for a dissolution of marriage, the Court should proceed on the principle now acted on in the Ecclesiastical Court, and so grant alimony and the means of carrying on a suit to a wife pendente lite; but he did not find in this clause any provision of that kind applicable to divorce a vinculo.

LORD LOVAINE

said, he should move, in the first line of Clause 30, to substitute the word "shall" for the words "may if it shall think fit," the effect of which would be to render it obligatory instead of discretionary in the new Court, on pronouncing a decree dissolving a marriage at the instance of the wife, to make it a condition that the husband should secure the payment of alimony to her, either in a gross sum or an annual one.

Amendment proposed, To leave out the words "may if it shall think fit" in order to insert the word "shall."

THE ATTORNEY GENERAL

said, that in Divorce Bills hitherto, the House of Commons had always been in the prac- tice of awarding some means of maintenance to the wife when the husband only was concerned. He thought, however, for the future that the power to grant alimony had better be discretionary in the Court, as the clause as it now stood provided it should be, for otherwise it might operate very inconveniently in many cases where the wife might not be entitled to such consideration from the Court. He would say, in reply to the right hon. Gentleman (Mr. Henley), that it was undoubtedly true that the Bill as at present worded, would not, in a suit for a dissolution of marriage, throw on the Court the obligation of adopting the practice of the Ecclesiastical Courts. In a suit for judicial separation the practice of the Ecclesiastical Courts might possibly be adopted by the new Court; but it was a matter for grave consideration whether that practice, which was extremely anomalous, was or was not a desirable thing to maintain. He thought where a wife applied for a divorce a vinculo it would be desirable to leave the Court unfettered, because otherwise there might be, as at present, many cases where the wife might fall into the hands of an extortionate legal adviser, who would subject the husband to a grievous amount of expense.

MR. HENLEY

said, he would remind the hon. and learned Attorney General that, according to Clause 16, the Committee had already decided in effect that the Court should be guided by the rules and principles of the Ecclesiastical Courts; and he thought it was not asking too much that in a suit for dissolution of marriage the wife should not be left without reasonable means of carrying on that suit, which might otherwise be denied her by a profligate husband.

THE ATTORNEY GENERAL

said, it was a common law liability on the husband to maintain the wife; but it was a rule peculiar to the Ecclesiastical Courts to make him liable to assist her in carrying on a legal proceeding against him. He should, however, take the point suggested by the right hon. Gentleman into consideration, and endeavour to provide for it.

LORD LOVAINE

said, he thought some consideration should be given to the fact that the wife might be abandoned by the husband and left without any resources at all, even in cases where she had brought him a fortune on their marriage.

MR. MALINS

said, as the clause proposed to take away the property of the husband for the wife, he thought it was only fair that there should be also a power given to the husband to take away the property of the wife in order to prevent the adulterer having the advantage of it, and that it should be settled on the children.

LORD JOHN MANNERS

suggested, that the clause should be altered to meet the views put forward by the hon. and learned Member behind him (Mr. Malins), inasmuch as he believed that such cases had really occurred.

Question, That the words "may if it think fit," put, and agreed to.

MR. BUTT

said, such cases as those alluded to had been actually provided for by the 47th clause. The case, however, brought forward by the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) was not provided for by the Bill. The House of Lords was always in the habit, when a husband petitioned for a divorce Bill, of ordering a sum of money to be set aside for the wife, to enable her, if she could, to defend herself. The point, however, could be more conveniently raised on the 32nd clause. He had given notice of an Amendment, which he thought was but justice to the parties concerned. It would be observed that the clause provided that "the Court may, if it shall think fit, make it a condition that the husband" should secure alimony to the wife. He thought these words would be inadequate to insure a provision for the wife, and he would propose a substitution of the words "absolutely order" for the words "make it a condition."

Amendment proposed, Before the word "that" to insert the words "or in the case of a divorce obtained on the petition of the wife may absolutely order."

Question proposed, That those words be there inserted.

THE ATTORNEY GENERAL

said, he was willing to consent to the substitution of the simple word "order" for the words "make it a condition."

Amendment by leave withdrawn, and an Amendment, in accordance with the suggestion of the Attorney General, agreed to.

Clause agreed to.

Clause 31 (Power to Court to impose a fine upon the adulterer).

MR. PULLER

said, he had given notice of his intention to move that instead of the words "whenever in any such petition presented by a husband the alleged adul- terer shall have been made a co-respondent and the adultery shall have been established," the words "whenever in any such petition presented for the dissolution of a marriage, of for a decree of judicial separation on the ground of adultery" be inserted in the clause. It would be necessary, as a preliminary Amendment, that he should move the substitution of the word "on" for the word "in." Up to the present time adultery had not been treated as a crime by the law of this country, but had been dealt with as a sin by the Ecclesiastical Courts. This clause, however, proposed to abolish the action of crim. con. and give the Court the power of imposing a fine upon the adulterer, and also of ordering him to pay the whole or any part of the costs of the proceedings. It appeared to him that this was a most inadequate mode of dealing with adultery. The Bill did not call adultery a crime or a misdemeanour, and he thought that was quite right, because, if adultery had been so described in the Bill, offenders might have been indicted by discarded servants, or by utter strangers, without the consent of the injured husband or wife. Substantially, however, adultery was constituted a crime by the Bill, and it was for the Committee to determine whether the mere imposition of a fine upon the adulterer was a satisfactory mode of treating such a crime, the offending wife being left wholly untouched. With the view of giving the Committee an opportunity of expressing their opinion upon that point, he intended subsequently to move the insertion of words which would enable the Court "to order the respondent, and also the co-respondent, if any, to be punished by fine or imprisonment, or by fine and imprisonment, as if convicted of a misdemeanour." Having stated reasons last Friday why this change should be made, be would not now repeat them, but would move his first Amendment in line 20 to insert the word "on" instead of "in."

Amendment proposed in p. 8, 1. 20, To leave out the word "in" in order to substitute the word "on."

Question proposed, That the word "in" stand part of the clause.

THE ATTORNEY GENERAL

said, that the clause, besides the question raised by the hon. Member for Hertfordshire (Mr. Puller), involved another very important consideration, whether in these proceedings it should be competent for the Court to impose on the adulterer any pecuniary penalty to be applied for the benefit of the husband or the children of the marriage, or as provision for the unfortunate wife. The present Amendment proposed by the hon. Member for Hertfordshire involved the question, if question it ought now to be considered, whether adultery should be criminally punished. He did not mean now to go into the question at any length, because he believed that the testimony of all persons, who had directed their attention to the subject, combined in condemnation of the principle of making adultery criminally punishable, and history showed that that principle, when attempted to be put in practice, had signally failed. On the occasion of different divorce Bills passing the Legislature the principle had, more or less, been brought under discussion, and there were three solemn debates, which took place in the House of Lords and in the House of Commons on the subject, and which were reported in the Parliamentary Journals. They occurred, he believed, Jin 1781, in 1800, and again in 1812; and on all occasions it had been the opinion of that House that to treat and punish adultery as an offence against the State, would not tend to advance the interests of morality, and that to do so, was not required by the principles of criminal legislation, but rather overstepped the limits of criminal jurisdiction. He did not intend to detain the Committee by a repetition of the arguments drawn from those sources, where every argument which could be brought to bear on the subject was urged, because he believed that the distinction between those things, the repression of which must be left to religious and moral education, and what properly belonged to the laws of offended society to punish, must be obvious to every one who bad considered the question. He trusted that the Committee would adhere to that which on every occasion was recognized as the true principle, that it was not by any law, making an offence like adultery a crime, that it could be repressed, for it was not by such means that people could be made more religious or moral. He should, therefore, oppose the proposed Amendment. It would no doubt be observed that the Bill, as brought down from the House of Lords, did embody in a limited form, the principle of criminal punishment, so far as the imposition of a fine upon the adulterer went. That was not, however, the provision of the Government, and he had given notice of Amendments to alter altogether the character of that Enactment; and in the discussion on those Amendments the question would arise whether it was right and fit, under any circumstances, to permit the injured husband either to recover from the adulterer pecuniary damages, or to make the adulterer amenable in money to be applied for the benefit of the husband, the protection of the children, or as a provision for the wife. When these Amendments came under consideration he should endeavour to explain his views, but, at present, confining himself to the immediate Amendment of the hon. Member for Hertfordshire, he must, on the part of the Government, state that he was prepared to resist altogether any attempt to make adultery the subject of criminal punishment, and to add it to the list of offences amenable to the criminal law.

LORD JOHN MANNERS

said, that so far as he had studied the question, it appeared to him that the universal testimony of history was rather against than in favour of the view taken by the hon. and learned Attorney General. The homily against adultery contained a list of the different nations which, in different parts of the world, and at different epochs, had treated adultery as a heinous offence against society. From the statement there contained, it appeared that the Jews, the Egyptians, the Arabs, the inhabitants of the north of Germany, had all treated it in the same manner, that is, punished it with death; and the laws of Scotland were nearly as severe. In no part of the world had the law in this respect been more considered than in France; and what, he asked, was the state of the law there? There the guilty persons were subject to imprisonment extending from three months to two years. He did not say that the object of the Bill was to encourage and reward the commission of the crime of adultery, but he must say that that would be the effect of the measure, when he found that adultery would not be punished as an offence against social order, and that permission was given to the adulterer to marry the guilty woman as soon as she should be divorced. He did not understand whether or not the hon. and learned Attorney General intended to leave in the Bill that provision—he could hardly call it punishment—which would impose a fine on the adulterer. But even if the hon. and learned Gentleman consented to retain that provision, he contended that without some such Amendment, as the one under discussion, the tendency of the Bill would be to encourage, and not to discourage, the adulterer and adultress. It was said that until the time of the Commonwealth the idea never occurred of making this great crime a subject of punishment. Now, on other occasions they had heard a great deal about the Reformatio Legum, and the opinions of Cranmer and his associates, on the subject of divorce. Did Cranmer look upon adultery as a private injury with which the public law ought have no concern? On the contrary, the Reformatio Legum condemned the adulterer or adultress either to perpetual banishment or perpetual imprisonment, thus not only inflicting a most severe punishment, but rendering intermarriage impossible. The present Bill, as sanctioned by the hon. and learned Attorney General, however, treated this great question with a lightness, a favour, and an encouragement which you would search the records of history for in vain, and would not find imported into any code either in ancient or modern times. Let them see how this clause would operate on the different classes of society. With regard to the pecuniary fine, it was quite clear that the wealthy seducer of his neighbour's wife, if he only paid the money, might marry or discard the woman as he chose, and then nothing more would be said about it; while the poor man would be sent to prison, not because he had committed a great offence, but because he had not the money wherewith to condone it. They were told that this was a Bill to put the poor and the rich on an equality; but where was the equality in this case? It appeared to him a mere mockery of justice to imprison the poor man while the rich adulterer escaped on payment of a fine. The Committee should remember that Lord Lyndhurst and other high authorities declared that adultery ought to be regarded as a crime, and to be punished as such. Could any offence be conceived which struck more at the peace of families and at the welfare of society? And he augured the worst social consequences from a system of law which would teach the rich that the payment of a sum of money, not larger perhaps than the fee payable for taking out a patent, would allow them to commit this offence with perfect impunity, so far as the law was concerned. If the Committee desired to discourage the commission of adultery in this country, he entreated them to support the Amendment of the hon. Member for Hertfordshire (Mr. Puller).

MR. BUTT

said, that the Committee would involve themselves in considerable difficulty if they attempted on the present clause to discuss the question whether adultery should be made a criminal offence. Nothing would be more objectionable or unprecedented in English law than to allow a man to be convicted and punished for a criminal offence upon a civil suit. The mixture of civil and criminal process, as proposed by this Amendment, would be a mongrel kind of proceeding, the only effect of which, he believed, would be to introduce endless confusion. Did the hon. and learned Gentleman mean that if, as was quite possible, the act of adultery was committed in ignorance, the party should be visited with imprisonment, though in such a case he might be civilly liable, and the sentence of divorce would follow? So much was he (Mr. Butt) opposed to a proceeding of this kind that he even intended to object to the words imposing a fine on the adulterer. It was said that this fine was a substitute for the action for criminal proceedings. He might be uttering a very unpopular sentiment, but he must say that he thought it a very inefficient substitute. The fine imposed was only given to the person who possessed the means of instituting proceedings for a divorce in this high court, while the Bill abolished an action which might have its faults and its scandals (though these, he believed, had been exaggerated), but which certainly had been and now was the means of protecting the poor man. If, however, adultery was a high criminal offence, he objected to their deciding that question at all upon a clause of this sort. Then again, was the possibility of punishment to depend upon the accident of proceedings being taken in a civil court? Suppose husband and wife to be both guilty, the remedy given by this Bill was taken away, and no suit could he instituted. It would be productive of bad effects to say the adulterer ought to be punished with imprisonment, but at the same time to throw a shield, so to speak, around him by declaring that he can only be punished provided a suit for divorce were instituted. He contended that if adultery was a criminal offence it ought to be dealt with by the proper criminal tribunals of the country, with such safeguards as the wisdom of Parliament might see fit to enact, and not by a civil court; and such a question would best be raised by the introduction of a distinct clause containing a provision of that kind.

MR. M'MAHON

said, he thought it was better to reserve this question until they reached the 54th Section. He would observe, however, that inasmuch as the Bill would put an end to actions of crim. con., it would almost induce parties to commit adultery unless it were made a misdemeanour. In so doing they would merely follow the example of other countries. In Scotland adultery was still punishable as a crime. The law of France punished both adulterer and adultress by fine and imprisonment. In nearly every American State adultery was punishable as a misdemeanour. The hon. and learned Attorney General said, that in 1800 the Legislature repudiated the idea of treating adultery as a crime. But in that year the House of Lords agreed, with the sanction of Lord Eldon, to a Bill rendering adultery a crime; and when this Bill came to that House it had the support of Mr. Pitt and Mr. Erskine. It passed the second reading by a large majority, and was eventually rejected on account of a provision being added preventing the guilty parties marrying. Were they then to encourage adultery by taking away the action of crim. con., at the same time abstaining from imposing any criminal punishment upon the offence? They did not even leave the matter as it stood at common law, by which he thought it was very doubtful if adultery was not an indictable offence.

MR. WIGRAM

said, he would suggest to the hon. Member for Hertfordshire (Mr. Puller) that a division merely upon the question whether "on" should be substituted for "in" would not accomplish his object, and that he had better withdraw his Amendment, with the view of taking a division upon an Amendment to the effect that imprisonment should be inflicted for adultery.

MR. PULLER

submitted that the question of imprisonment of the adulterer was fairly raised by this clause. He was, however, quite willing to take any course the Committee might think fit; and if they thought the object he had in view could be better accomplished by his bringing in a new clause than by amending this, he would do so.

MR. HENLEY

said, he was afraid that the mere substitution of "on" for "in" would not enable the Committee to get rid of the difficulties connected with the clause. It was quite plain that the hon. and learned Attorney General had completely thrown over the whole clause, at which he was not surprised. The Amendment suggested by the hon. and learned Attorney General changed altogether the object and aspect of the clause. The clause would in its new shape introduce a very anomalous state of things, for it would enable a Court to impose a fine without any crime having been proved. It would be impossible to know for what the adulterer had been fined. The hon. and learned Attorney General argued that it was alike at variance with history and with social advantage to make this a crime, and that hon. and learned Gentleman had given notice of an Amendment declaring that the fine should be applied in the discretion of the Judge for the benefit of the husband, of the children, or of the divorced wife. If, however, there was to be an inoculation of the compensation principle in the Bill, all the analogies of our law required that the amount should be fixed by the jury, not by the Court. None of the Amendments which stood in the name of the hon. Member for Hertfordshire would exactly raise the question intended to be raised—namely, whether adultery should be made punishable by fine and imprisonment. If the Court was to impose a fine the offence ought to be constituted a misdemeanour. On the other hand, if the mulct was to take the shape of compensation they would be re-enacting the scandal attached to the odious action of crim. con., by which a man put the wages of his own dishonour into his pocket. The hon. and learned Attorney General would perhaps favour them with some explanation on these points.

THE ATTORNEY GENERAL

said, he understood that the question to be decided by the hon. Member's verbal Amendment was whether they should introduce into the Bill a clause making adultery punishable by fine and imprisonment. If in any case they determined to impose on the adulterer the obligation of paying a fine, in his opinion it ought to be assessed by a jury—not by the Court; and the money should be applicable either to the relief of the husband, if he claimed it and the tribunal deemed him entitled to it, or as a provision for the children who had sustained irreparable loss in the cessation of maternal protection; or for the support of the wife herself. In the meantime, however, they had first to determine whether adultery should be punishable as a crime.

LORD JOHN MANNERS

said, this was a most inconvenient form of raising such a question, and he would suggest that it would be more intelligible if the hon. Member for Hertfordshire were to take the sense of the Committee on another of his Amendments.

MR. WIGRAM

suggested that the Committee should at once decide whether they should insert such words as "order the adulterer to be punished by fine or imprisonment."

MR. MALINS

said, before they decided; on the question "in" or "on," he would wish to know how the numerous body of hon. Gentlemen who would be sure to come in when the division bell rang were to be guided in arriving at a conclusion on that very nice point?

SIR GEORGE GREY

recommended the hon. Gentleman not to raise his issue on the word "in."

MR. PULLER

said he would withdraw his Amendment.

MR. BUTT

said, his objection to the Amendment now before the House was, that the hon. and learned Gentleman was not raising the question whether adultery was a crime which ought to be punished by fine or imprisonment, but whether it ought to be punished by the operation of this particular clause. He (Mr. Butt) was satisfied that adultery ought to be punished by fine or imprisonment; but he should vote against the Amendment now before the Committee, because he could not allow the guilt of the party to be decided by such an anomalous tribunal as that contemplated by this clause. The hon. and learned Gentleman (the Attorney General) thought that the fine ought to be imposed by the jury; and he (Mr. Butt) considered that the adulterer ought to be made to pay the whole cost of the proceeding. He should, therefore, presently move to strike out the words giving power to the Court to impose a fine, and leave in those giving it power to impose on the adulterer the whole or any part of the costs.

Amendment, by leave, withdrawn.

MR. BUTT

said, in accordance with his promise he now rose to move the omission of the words empowering the Court to impose a fine upon the adulterer.

THE ATTORNEY GENERAL

said, he entirely agreed in the Amendment proposed by the hon. and learned Member for Youghal.

Amendment agreed to; Words struck out.

LORD JOHN MANNERS

observed, that he trusted the Committee would bear in mind that the Amendment of the hon. and learned Member for Youghal (Mr. Butt) would be the first step towards restoring the condemned action for criminal conversation. If it were the intention of the Government to make that restoration it would be well that the Committee were at once acquainted with the fact. He begged to move that after the word "order" there be inserted the words "the adulterer be punished by fine or imprisonment, or fine and imprisonment."

Amendment proposed in p. 8, 1. 23; after the word "order" to insert the words "That the adulterer be punished by fine and imprisonment, or fine or imprisonment."

MR. BUTT

said, he must again protest against the noble Lord raising in a most inconvenient form the question whether adultery was to be made a criminal offence. He (Mr. Butt) was not saying that it should not be made so; but he objected to a man being pronounced a criminal by such a tribunal as this without conviction by a jury. In an incidental proceeding—one mixed up with several other things—it would be very objectionable to give a Court the power of ordering fine and imprisonment.

MR. WIGRAM

said, that the main question the Committee had to consider was, whether a disgraceful offence, when proved, ought not to be visited with some punishment or the other. Pillory was unfortunately abolished, and whipping was out of fashion, and he saw no other means of punishing the offence except by the means proposed by the noble Lord. He could see no impropriety in the course of procedure, as the accused would have the benefit of a trial by jury. He should, therefore, support the clause.

SIR GEORGE GREY

said, he fully concurred with the remarks of the hon. and learned Member for Youghal (Mr. Butt). If adultery was to be made a criminal offence it should be done by an alteration of the criminal law, so that the person charged might be proceeded against by indictment and tried by a jury. Let the criminal enjoy at least the same safeguards which every other person in this country enjoys when charged with a criminal offence. Having done that, power might then be given to the Court to direct a prosecution. The question was one of great importance and ought not to be hastily decided, because a variety of questions would arise in reference to it that would require serious consideration, and amongst others whether seduction should not be treated in the same manner. The question before the Committee was not whether adultery should be made a crime, but whether under this Bill the Court, without the intervention of a jury, and the ordinary process of a criminal court, should pass sentence on a man for an offence of which he had not been convicted according to the forms of our criminal law.

SIR WILLIAM HEATHCOTE

said, he would quite admit that the subject was one full of difficulty. He thought, however, that the difficulties were incidental to the nature of the proceedings, for, put it as hon. Gentlemen would, there must be something criminal in these proceedings. This mixture of civil and quasi criminal procedure was not altogether unprecedented in the law; the two sometimes ran into each other, as in the case of the law of insolvency. He saw nothing unreasonable in proposing that the Court should not be obliged to confine the punishment to the weaker party, but that it should have the power of extending that punishment to the adulterer, who would otherwise escape scot free; and he should, therefore, support the Amendment.

MR. PULLER

said, he begged to offer a remark in reply to what had fallen from the right hon. Baronet (Sir George Grey). He quite agreed in the importance of not too hastily making this offence the subject of criminal jurisdiction. If this offence were called a crime, it would sometimes be in the power of a discharged servant to bring to public trial a case of the kind, no matter how long ago it had happened, or whether it had been condoned or not. There must in all cases be a compromise between public justice and private feelings. The offence should be made discreditable for the sake of public morals, yet there were cases in which it would be intolerable to drag to light the private affairs of individuals. But when safeguards were spoken of, it was desirable that the Committee should know what these safeguards really were. The right hon. Baronet had spoken of trials by jury and indictment; yet a trial by jury was provided by this Bill; and what was an indictment but a setting forth of the nature and particulars of the offence charged against the prisoner? Now this Bill provided that every petition was to set forth the circumstances as fully as the nature of the case would admit, and adultery must be proved—that was essen- tial. Therefore they already had before them the only safeguards that had been mentioned. He thought, moreover, they should not hesitate to compromise in some degree their prejudice in favour of established customs, when the object in view was to punish a violation of public morals.

MR. LYGON

said, he would beg to remind the Committee that one of the principal objects of the Bill was to consolidate the jurisdiction of three separate Courts, and to substitute one inquiry for the three which at present must precede a divorce. That object, however, would be defeated if there must be a criminal trial as well as the inquiry before the Court.

MR. BUTT

observed, that it was an essential ingredient in the crime of adultery that the man should have knowledge of the fact that his partner in guilt was married. Now, what protection would a jury be, in the case of a man's ignorance of this fact? The only question the jury would have to try would be whether the act of adultery had been committed or not. This would reduce the Amendment, if not to an absurdity, at least to a nullity.

MR. HENLEY

said, that every step they took showed the difficulty of proceeding in the course recommended by his noble Friend (Lord J. Manners); for he (Mr. Henley) thought the mere accident that a man happened to have a suit brought against him for a divorce should not afford a reason why he was to be punished by fine or imprisonment for that which no party was liable to be punished for, except such suit had been instituted against him. If parties wished that adultery should be punished by fine or imprisonment they should raise the major proposition first—namely, that adultery was a crime, and that all parties who committed it should be punished for the offence whether a divorce were attached to the proceeding against them or not. The hon. and learned Gentleman (Mr. Puller) had spoken of the hardship of allowing a servant to commence a prosecution for matters which had been condoned; but did not that show that adultery was a private wrong? They must also recollect that by the law of England it was not competent for a private person to compound a private offence.

LORD JOHN MANNERS

said, he did not think there was any force in the objection that a third party—say a discarded servant—might raise a case against offenders long after the adultery had been com- mitted. The case could only be raised by the parties themselves. A person aggrieved would seek the remedy provided by the Bill, and then the penalty for the adultery would follow as a consequence. He saw no incongruity in this. Such at least was the case in France and other countries.

MR. ADAMS

said, he should vote against the Amendment of the noble Lord, because he did not think that the time or place to enact that adultery should be a crime. If the Committee were of opinion that it should be, the most consistent and best course would be to make a direct addition to our criminal law, and not interpolate a criminal proceeding in such a clause as that now before them. In saying this, he wished not to be understood as saying that adultery ought not to be dealt with as a criminal offence.

Question, "That those words be there inserted," put, and negatived.

MR. M'MAHON

said, he should now move that the clause be struck out altogether, as it was inconsistent with Clause 48, which enacted that the Court might order any costs it thought proper.

MR. BUTT

said, it was far better to leave the law clear as stated by the clause.

Clause agreed to.

Clause 32 (Custody of Children).

LORD LOVAINE

said, that by the common law the father had always the guardianship of his children vested in him, except under circumstances where it was absolutely necessary to deprive him of it. But in order that the clause should not leave this point in doubt, he would move to add a proviso to that effect to the end of the clause.

Amendment proposed at the end of the clause to add the words:— Provided always that the custody of the children shall be given to the parent promoting such suit or proceeding where the Court shall be of opinion that the conduct of such parent has been free from cruelty or criminality.

THE ATTORNEY GENERAL

said, the introduction of those words would be most inconvenient. Generally speaking, the Court of Chancery would give the custody of the children to the innocent parent; but there might be cases where the wife, being the innocent party, could not exercise the power of protecting the children. Consequently, if the proviso of the noble Lord were adopted, the Court would be bound by an inflexible rule, and then be deprived of the power of consulting the interests of the children.

Question, "that those words be there added," put, and negatived.

MR. BUTT moved the insertion of the following words in the clause:— And upon any petition for dissolution of a marriage it shall be lawful for the Court to make such interim orders for payment of money to the wife by way of alimony or otherwise, as it might do in a suit or proceeding for a judicial separation.

THE ATTORNEY GENERAL

promised to consider the point before bringing up the Report.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 33 (Questions of fact may be tried before the Court).

MR. M'MAHON

said, he rose to move an Amendment, the effect of which was to provide that in all cases, unless the Court shall otherwise order, the contested fact shall be tried in the county in which the alleged offence is committed.

Amendment proposed, at the end of the clause to add the words:— Provided always, that unless the Court shall otherwise order, the contested facts shall be tried in the county where the adultery is alleged to have been committed.

MR. ADAMS

said, he thought that before the proviso would be applicable the clause itself should be altered. It had already been decided by the Committee that there should be other tribunals for granting judicial separations besides the one Court then proposed to be established; and it seemed to him that the clause as it now stood, as well as the proviso of the hon. Member, would apply only to proceedings as they were intended to be taken with only one Court in existence.

THE ATTORNEY GENERAL

said, that it was now too late to make any Amendment in the language of this Section, but when they came to discuss the clauses with respect to the local jurisdictions of which he had given notice, it would be open to the hon. and learned Member to introduce words which would attain the object that he had in view. The proviso moved by the hon. and learned Member for the county of Wexford (Mr. M'Mahon) he thought both unnecessary and objectionable. It was objectionable, because, while the questions of fact referred to in the clause might be with respect either to cruelty, desertion, or misconduct, as well as to adultery, the words of the proviso would limit them to the latter offence. It was unnecessary, because the 37th section of the Bill the Court would have power to direct one or more issues to be tried in a court of common law, and in the exercise of this power it would, unless there were good reason to the contrary, act in accordance with the usual practice of Courts having such powers—namely, have the issue tried where the offence or cause of action was alleged to have arisen.

MR. M'MAHON

said, he was satisfied with this explanation, and hoped that the Court would act upon it.

Question, That those words be there added, put, and negatived.

Clause agreed to, as were also Clauses 34 to 38 inclusive.

Clause 39 (Service of Petition).

THE ATTORNEY GENERAL moved the insertion of certain words conferring upon the new Court the same power which was possessed by the Court of Chancery with regard to serving notices upon persons not within the jurisdiction.

Amendment agreed to, as was also the clause as amended.

Clause 40 (Examination of Petitioner).

MR. M'MAHON

said, that when a petitioner came into court, and was asked whether he himself had been guilty of adultery, it would be unfair to allow him to refuse to answer the question. He thought that this clause should be postponed until the Committee had decided whether adultery should or not be considered a misdemeanour.

SIR WILLIAM HEATHCOTE

said, he should move the omission of the latter part of the clause; as in point of fact, the Bill did deal with adultery as a criminal matter.

Amendment proposed in p. 10, 1. 16. To leave out all the words after the word "petition" to the end of the clause.

THE ATTORNEY GENERAL

said, the hon. Baronet had not present to his mind the circumstance that by the law of evidence established in this country, and under a very recent statute, an exception had always been made, and still existed, that in actions in which an issue touching adultery was raised the husband and wife should not be examined one against the other. The proviso had nothing to do with the ordinary rule adopted in the criminal law, that no man or woman should be compelled to criminate himself or herself; but it was framed with reference to the special law of evidence, which had always been deemed applicable to the case of the husband and wife.

SIR WILLIAM HEATHCOTE

But did not the clause introduce the petitioner to be examined, notwithstanding that law? He understood the Attorney General to say that the law of evidence, as settled by Parliament, prevented the husband or wife being examined in actions of civil procedure affecting the other. But this clause stepped in and said, that the petitioner should be examined; it was therefore, taken out of that rule. [The ATTORNEY GENERAL: With that qualification.] Precisely so; and if the husband or wife were introduced as a witness at all there seemed to be some absurdity in excluding from his or her evidence that particular answer which was most vital to the subject in reference to which he or she was examined.

MR. AYRTON

said, that at present in matrimonial causes in the Ecclesiastical Courts the husband and wife were examined, but they were not called upon to answer upon oath as to the act of adultery. The present proviso, therefore, proceeded upon the same principle, as its only intention was to get rid of the documentary evidence upon which those Courts proceeded.

MR. BUTT

said, that if the petitioner were allowed to be questioned as to his having committed adultery he would be put under the strongest possible temptation to commit perjury. He (Mr. Butt) thought it a wise principle of the law.

MR. M'MAHON

said, the principle was settled by the Act of Geo. III., which rendered it obligatory to answer, even if penalties and forfeiture were in question, with the exception of criminal indictment.

MR. JOHN LOCKE

said, that no person was bound to answer a question which might subject him to ecclesiastical censure, which would be the case if he were compelled to acknowledge that he had been guilty of adultery. The penalties and forfeitures referred to were the consequences of qui tam actions or indictments.

MR. M'MAHON

said, that no legal penalty attached now-a-days to adultery, and therefore there were no grounds for a refusal to answer.

MR. HENLEY

said, he wished to learn from the hon. and learned Attorney General whether, in his opinion, the clause vent far enough. Let him suppose, for instance, that a man were to bring a petition against a woman upon the ground of adultery, and that she should plead as a counter charge that the husband had been guilty of bigamy, would the latter, he should like to know, be obliged under the operation of the clause to answer that question?

THE ATTORNEY GENERAL

said, that the clause was intended simply to provide that when a husband or wife was a petitioner for a divorce a vinculo either party should be subject to be examined by the Court as to all those facts which it was the duty of the Court to ascertain for its own information before it could come to a decision in uncontested cases. In giving that power, however, it had been deemed advisable to place a guard upon its exercise by not conferring upon the Court authority to institute an inquisitorial examination into the fact of adultery. It did, however, express a general rule. With respect to the question of the right hon. Member for Oxfordshire (Mr. Henley) he need not only say that bigamy in the ordinary interpretation of that word would always be found to include adultery.

Question, That the words "but no such petitioner" stand part of the clause, put and agreed to.

Clause agreed to; as was also Clause 41.

Clause 42, Court, in any case in which it shall pronounce a Divorce for Adultery, to order such a settlement as it may think reasonable of any property in possession or reversion to which the wife may be entitled to be made for the benefit of the innocent party, or of the children of the dissolved marriage.

MR. BUTT moved that the words "for adultery" should be struck out.

THE ATTORNEY GENERAL

said, he should not object to the omission of the words in question, but for an opposite reason to that assigned by the hon. and learned gentleman. The clause was intended only to apply to cases where the husband was an applicant, but as it was worded it gave rise to a doubt whether it was limited to cases where the husband applied for the dissolution of the marriage. He could imagine a case where the husband applied for a judicial separation, and it might be right in such a case that the property of the wife, or some portion of it, should be applied for the benefit of the husband and for the maintenance of the children.

Amendment agreed to.

Words struck out.

MR. MALINS moved that the words "judicial separation" should be inserted after the word divorce.

Amendment agreed to.

Words inserted.

MR. MALINS

then proposed that the word "divorce" should be omitted.

Amendment negatived without a division.

MR. MALINS moved the omission of the word "dissolve."

MR. BUTT

said, he thought the effect of the clause would be to preserve the settlement made on the wife even in the case of reconcilement subsequent to judicial separation.

THE ATTORNEY GENERAL

said, that there was no difficulty. The Court would only authorise such an arrangement of the property as would meet the case, whether of divorce or separation.

Amendment negatived.

MR. HENLEY

said, a serious question was involved in this clause. Suppose the case of a woman whose property was settled on herself to her own use; it seemed rather a violation of justice that her husband should be able to make an ill-used wife of her, and thereby obtain the use of a large portion of her property as guardian for their children, in the event of her being compelled by his had treatment to sue for a separation or divorce.

Clause agreed to.

Clause 43 (Mode of taking evidence).

MR. MALINS

said, he should move to leave out the whole proviso. The affidavits on one side might contradict those of the other, and then recourse could be had to examining the witnesses vivâ voce. He was counsel lately in a case in which, after affidavits had been taken at a great expense, they were so contradictory that no less than six days were subsequently occupied in examining the witnesses vivâ voce.

THE CHAIRMAN

decided that the hon. and learned Gentleman could not move the omission of the proviso.

MR. SOTHERON ESTCOURT

said, he thought that the Court should have the discretion of compelling the witnesses to appear in court, and that it should not be left in the power of the opposite party.

THE ATTORNEY GENERAL

remarked that it was highly desirable that in these matters the witnesses should appear personally.

MR. WIGRAM

said, he thought there was nothing more pernicious to public morals than the publication of the proceedings in actions of criminal conversation and in cases of divorce before the House of Lords, and he would therefore ask the hon. and learned Attorney General to consider whether it might not be left in the power of the Court, with the consent of the parties, to order that the proceedings under this Bill should take place in private.

THE ATTORNEY GENERAL

said, there was a clause giving the Court such a discretion.

MR. BUTT

said, that as he believed this clause would entail great expense and occasion some confusion, he would recommend its omission. As he understood its operation the parties would be at liberty to verify their respective cases by affidavit, but either party would have the right of requiring that the deponents on the opposite side should be brought up from a considerable distance to London to be examined orally in court, and, after all, the question might be submitted to trial by a jury. It would be more advisable to leave it to the Court to regulate the procedure.

MR. JOHN LOCKE

said, he thought it advisable that the proviso should be omitted.

MR. GLADSTONE

said, the mode of proceeding proposed by the clause certainly appeared to be exceedingly complicated, and he was anxious to hear from his hon. and learned Friend whether the hon. and learned Gentleman was correct in his view of the effect of the clause.

THE ATTORNEY GENERAL

observed, that if the Court directed a trial by jury, the 45th clause provided that at such trial the rules of evidence acted upon by the Courts at Westminster Hall should be observed; but there might be many questions which need not necessarily go to a jury, and this clause provided that in such cases evidence might be taken by affidavit, the attendance of the deponents to be cross-examined orally in open court being only required on the demand of the opposite party. He thought the proviso was sufficiently guarded.

MR. BUTT

said, that the fact of the adultery would not be tried by a jury, unless either of the respondents demanded it; and they would have that power even after the petitioner had verified his case by affidavit, and been cross-examined in court.

MR. GLADSTONE

said, that according to the clause the parties might verify their respective cases in whole or in part by affidavit, but subject to cross-examination on the application of the opposite party, and in another part of the Bill there was a provision that contested matters might be referred, at the instance of either party, to be tried by a jury. What he wanted to know was whether both these processes could be applied under the Bill to the same matter?

THE ATTORNEY GENERAL

said, that no one acquainted with the ordinary procedure in Courts of Justice could entertain any doubt on the point. The Court would inquire whether it was intended to have the matter tried by a jury, and, if so, would not then permit the deponent to be cross-examined in open court.

MR. BUTT

observed, that he thought words should be inserted, declaring that a discretion was left to the Judge on this point.

Clause agreed to; as were also Clauses 44 to 47 inclusive.

Clause 48 (The Court may make such order as to costs as to the Court may seem just).

MR. M'MAHON

said, he wished to propose a proviso, to the effect that where contested matters of fact were tried by a jury the costs should abide the event of the verdict, unless such verdict should be set aside by the Court. A man might be acquitted of adultery, but ruined by costs at the caprice of the Court.

THE ATTORNEY GENERAL

remarked that he could not assent to the proviso. The question tried by the jury might be only one part of the contested matter, and that might be found in favour of one party, while another matter might be decided against him. It would, therefore, be wrong to make the costs go in one direction, while the real merits of the case might be in another.

Amendment negatived. Clause agreed to.

Clause 49 (Enforcement of Orders and Decrees).

LORD LOVAINE

said, it would be necessary to alter the clause if a provision was to be brought up by the hon. and learned Attorney General constituting any Court of Assize or Sessions a Court for making decrees in any proceeding under the Bill; therefore, instead of the words "by the said Court," he proposed the words "by the Court before which any cause under the Act might be brought."

THE ATTORNEY GENERAL

said, he thought, that, with a little alteration in the wording the Amendment might prove a very useful addition to the Bill; but it was an addition contingent upon the House hereafter adopting the principle of investing local Courts with jurisdiction under the Bill. The only difficulty he had in acceding to some Amendment of the sort now was that, should the House hereafter not adopt that principle, then there would be nothing to which the words could apply. He would, therefore, recommend the noble Lord to withdraw his Amendment for the present, upon the understanding that he quite assented to its principle.

Amendment by leave withdrawn. Clause agreed to.

Clause 50 (Power to make Rules and Orders for Procedure).

MR. WIGRAM

said, he rose to move the insertion of words for the purpose of rendering more clear the authority of the Court to hear any proceedings under the Act in private. Cases occasionally occurred where the publication of the proceedings was productive of such injury to public morals that it was most advisable to empower the Court to hear them privately.

Amendment proposed, in page 12, line 20, After the word "expedient," to insert the words "including any rules and regulations for enabling the said Court to hear any proceedings under this Act in private.'

MR. MALINS

said, he would submit that the words proposed were unnecessary, because the new Court, like the Court of Chancery, would possess an inherent jurisdiction to determine whether a case should be heard in public or in private. But though he admitted that there were occasional advantages in private hearings, very great disadvantages also attended them. Justice was never so well administered in private as it was in public, and therefore he should be reluctant to introduce any words into the Act which should give a legislative sanction to private hearings. Although there were great objections to the publication of the disgusting details which occasionally appeared in print, still it must be remembered that the liability to have these matters thus brought before the public served as a great check upon those who were inclined to conduct themselves improperly.

MR. WIGRAM

said, he wished to point out that by the 43rd clause it was provided that all the evidence should be taken in open Court, so that unless specific words were inserted in the Bill it was quite plain that the proceedings must be in public. He agreed that public policy was in favour of trial in open court; but if the parties agreed he could see no objection to the power being given. He should not object to the provision being limited to the case of parties agreeing to such course.

LORD LOVAINE

said, he should support the Amendment. It appeared to him that they could not secure the advantage which might be derived from the abolition of crim. con. actions if they did not provide that the proposed new Court should have the power to hear causes in private.

Question put, "That those words be there inserted."

The Committee divided:—Ayes 23; Noes 131: Majority 108.

MR. HENLEY

said, it had been attempted to get into the four corners of this Bill the greatest curse of the Court of Chancery and the greatest curse of the Ecclesiastical Courts—that of the form of procedure. He trusted that the Court should be allowed to decide upon its own power of procedure, and he should move as an Amendment to strike out from the clause all the words which related to that subject.

Amendment proposed to omit from the clause all the words after the word "same" in the twenty-first line.

The ATTORNEY-GENERAL

said, that the words in question had been added to the Bill at the suggestion of what might fairly be considered the right hon. Gentleman's own side of the House of Lords. He (the Attorney General) had no objection to make a sacrifice of those words.

Amendment agreed to. Words struck out. Clause, as amended, ordered to stand part of the Bill.

Clause 51, (Appeal from the Judge Ordinary to the full Court).

MR. MALINS

said, he thought a provision ought to be inserted in the clause, to the effect that the Judge who had first heard the case should not be a member of the Court to which the appeal from his own decision was made.

MR. M'MAHON

said, it appeared to him that the time within which the appeal might be brought ought to be extended beyond the proposed period of three months. An appeal could not be made from our most distant colonies within that time.

THE ATTORNEY GENERAL

said, he could not adopt either of the suggestions made by the hon. and learned Gentleman.

Clause agreed to.

Clause 52 (Appeal to the House of Lords in case of a Petition for Dissolution of Marriage).

MR. WALPOLE

said, that all these cases of divorce for adultery turned mainly upon questions of fact, and yet the clause proposed to confine the appeal to questions of law. The whole status of the woman was thus liable to be taken away without her having the opportunity, as a matter of right, to carry the case to a higher tribunal. The question to come before this Court included, besides the mere fact of adultery, the facts connected with connivance, recrimination, and other pleas in bar of the petition for a divorce. Moreover, a previous clause in the Bill enabled the Court to deprive a married woman of her property, though settled upon her for her separate use, and to dispose of it for the benefit of the husband or the children. Thus, in a question affecting not merely the personal status, but also the property of the wife, she would have no right of appeal, however much she might deem herself aggrieved. He would therefore move the omission of the words of limitation contained in the clause—namely, "but no such appeal to the House of Lords shall be had on any matter except on a question of law, to be stated m a case to be prepared by the party appealing, and approved by the said Court."

MR. BOVILL

said, upon matters of law there could scarcely be any appeal; and upon matters of fact appeals now formed a regular feature of our jurisprudence. Still appeals could not be allowed from decisions of a jury. Perhaps it would be best to shape the clause so as to allow of no appeals except upon questions decided by the Court.

THE ATTORNEY GENERAL

said, he entirely concurred in the Amendment of the right hon. Gentleman, who had anticipated him in the observations that he had just made. In conceding the right of appeal it was very difficult to draw the line between questions of law and questions of fact. The process of reasoning, by which conclusions as to the facts were arrived at was the most frequent source of error, and therefore questions of fact ought, above all others, to be submitted to appeal. The provision requiring the approval of the Court, from whom the appeal went up to be previously obtained, was also vicious in principle.

Amendment agreed to; words struck out. Clause as amended to stand part of the Bill.

Clause 53 (Liberty to parties to marry again.)

MR. ROLT

said, he now proposed to take the opinion of the Committee on the question, whether the guilty parties should have the right to re-marry. Upon the decision come to on this clause it depended whether the Bill should be known hereafter for good or for ill. Merely harmless the measure could not be. Potent it must be, either to elevate or to depress the sanctity of the marriage obligation. He could not agree that the principle of the Bill was merely to maintain the existing law, and to create a new Court for its administration. On the contrary, yielding to the principle affirmed by the House on the second reading, the true end and aim of the Bill might yet be taken to be to sustain and promote the sanctity of that obligation in the minds of the many, and, at the same time, to afford, as far as was consistent with that end, but no further, redress to the few, in whose case that sanctity had been violated. To enable the guilty parties to marry as freely as if the first union had been dissolved by death was incompatible with either of those objects. The result of so doing would be to give relief and encouragement to those by whom the sanctity of marriage had been outraged. It was idle to say that adultery was to be regarded only as a sin against the Divine law, and to be left for its redress to religious sanctions merely. They were clearly entitled, in legislation like the present, to deal with it as an offence against the law of the country. The right to remarry was treated by the Bill as a privilege and a boon, and adultery as an offence giving that privilege by way of redress to the injured party. But this clause as it now stands with monstrous inconsistency confers the privilege also upon the wrongdoer. Let the House apply the clause to those cases in which, from defects of temper and other causes not criminal, mutual unhappiness had followed marriage. At present there was no remedy except in mutual sacrifices of temper. But this clause, taken with the rest of the Bill, would teach these persons that if one of them would add to their defects of temper the guilt of adultery, it would be open to the innocent party to apply for a divorce, and when it was obtained they would both be relieved from their unhappiness and might marry again. The commission of the offence of adultery certainly did not give the adulterer the right of divorce, but the guilty party would calculate upon the other obtaining a divorce, and then they were on an equal footing. The result would be that the Bill by giving the right of remarriage to both parties would hold out a reward and an inducement to the guilt of adultery. It might be said that you could scarcely adopt any legislation which would be free from anomalies. No doubt that was true; but let them not carry anomalies further than was necessary. It was also said that considerations of justice, morality, policy, and expediency required that the right of remarriage should be given to those who had committed adultery. He took issue upon this assertion. If the punishment of the offender were necessary to prevent the spreading of the offence, then no consideration of expediency could be alleged against his punishment. When the Committee remembered that our whole social system was built up on the maintenance of the marriage contract, and when they considered how few incurred the guilt and how many were tainted by the consequences, they would agree with him, he hoped, in denying that any considerations of justice, morality, or policy could be alleged in defence of such a clause. The justice to be thought of was justice to the public. The morality to be regarded was the morality of the thousands and millions who might be tainted with the guilt of the few, and not especially or exclusively the morality of those whose conduct rendered legislation necessary. He contended that Parliament ought to protect the many, and not sacrifice them to the few who fell into crime. Far be it from him to arrogate to himself any peculiar sanctity or morality, or to show himself deficient in pity or sympathy for the weaknesses of our nature; but he thought that if men erred they should bear the consequences as they might, and reconcile themselves to their God as they could. Parliament, at least, must leave the consequences of guilt upon the wrongdoer. If they examined the law of other countries they would find that it had never yet been positively enacted in the written law of any country that divorce should be granted by reason of adultery, and that the adulterer should be at liberty to marry again. These results might have been unwittingly the consequence of legislation, but to pass such an enactment was unheard of. Mr. Macqueen's abridgment of the codes of other countries referred to France, Sweden, and Scotland. In France the law distinctly prohibited the adulterer from marrying the woman with whom he had committed adultery. The hon. and learned Member for Cambridge (Mr. Wigram) proposed this exact remedy, and he should be glad if that hon. and learned Member's Amendment were adopted, and his own proposition which went further be rejected. In Scotland the law was the same as in France. In Sweden the law forbade the adulterer to marry at all, except with the consent of the spouse and the King. What had been our own law? It had been said that the result of our special legislation had practically been to allow the adulterer or adultress upon divorce to marry again. It should be recollected, however, that they were trying an experiment, for this clause introduced to the mass of the people for the first time the proposition that the party against whom a divorce was obtained for adultery was to be at liberty to marry again. The special Acts of Parliament that had hitherto been passed had all, without exception, referred to cases drawn from a small portion of the community. The middle and lower classes had hitherto supplied no instances of such legislation. The Legislature had been lulled to sleep by the bringing forward of isolated cases from time to time, and they all knew the influences that had been brought to bear in many individual instances. If they established local tribunals and if within a year it became known through the length and breadth of the land that persons dissatisfied with one another, though perhaps not having fixed their affections elsewhere, might both be at liberty to marry again, upon either party committing adultery, the result must be to sap and weaken the notions of conjugal fidelity to an extent which could not be calculated, but which, judging from experience of human nature, would certainly be very large. In a debate in the House of Lords, Lord Erskine said that thirty years' practice at the bar convinced him that the inter-marriage of offenders tended to the commission of the offence. In 1809, in a debate upon a Standing Order, the Bishop of Durham and the Bishop of Rochester gave the same evidence. If they were about to leave the lessons of experience and enter the field of experiment and speculation, those who advocated the clause were bound at least to demonstrate to a certainty that the change would not be open to the objections which he had stated. In private divorce Acts care was taken to enact that the innocent party should be at liberty to marry again, but they had never yet dared to say that the guilty party should be al liberty to marry again. It might be that the law enabled the guilty party to marry again, but Parliament had never given its solemn sanction to such a proposition by a declaration to that effect. Though attempts to prohibit such marriages had failed, yet when they were called upon to pass a law which was to extend over the whole community there was no reason why the subject should not be reviewed and that course taken which would best maintain the sanctity of the conjugal relation. He would now call attention to the various modes in which the clause might be altered, and to the several propositions before the House on this subject. He should hereafter move absolutely to prohibit the party against whom the divorce was obtained from marrying again during the life of the person obtaining the divorce. The hon. and learned Member for the University of Cambridge (Mr. Wigram) had given notice of an Amendment to prevent the guilty parties intermarrying. His right hon. and learned Friend the Member for the University of Dublin (Mr. Napier) had given notice of another Amendment to leave the law exactly as it was in private divorce Acts; but this could not be conveniently moved after his own Amendment had been submitted to the Committee. He would, therefore, first submit the Amendment of the right hon. Member (who was unfortunately absent) by moving to omit the words "the respective parties thereto," and insert "the party on whose petition the marriage shall have been dissolved."

Amendment proposed, in line 15, to leave out the words "the respective parties, and insert the words "the party on whose Petition the marriage shall have been dissolved."

SIR GEORGE GREY

said, the hon. and learned Member intended to follow up the Amendment of the right hon. Member for the University of Dublin, (Mr. Napier) which he had now moved, by the Amendment of which he had himself given notice. The Motion of the hon. and learned Member for the University of Cambridge (Mr. Wygram) to prevent the remarriage of the guilty parties, raised a distinct question., What he should deal with now was the substantial proposition of the hon. and learned Member for West Gloucestershire, (Mr. Rolt) that the guilty person should ever after be debarred from remarriage. It was altogether a new principle to establish a kind of penal celibacy.

MR. ROLT

said, he wished to explain that he would have moved his own proposition first if the rules of the House would not then have prevented the consideration of the Motion, of the right hon. Gen- tleman the Member for the University of Dublin.

SIR GEORGE GREY

said, the Amendment of the right hon. Gentleman would leave the law in precisely the same state as if the clause were not altered. It was admitted that in ordinary divorce Acts, though permission only was given to the innocent party, there was no prohibition of the marriage of the guilty party, and such marriages were valid in law. It was therefore a mere matter of form whether they adopted the Amendment or left the Bill as it now stood. The Amendment of the hon. and learned Gentleman was tantamount to a sentence of penal celibacy. Let them take the case of a woman who had been guilty of a breach of the marriage vow. Was that woman, if divorced, never to have an opportunity of reformation or repentance? Her husband having married again, the band of matrimony being entirely dissolved, she being in the eye of the law a single woman, was she to be condemned to a life of what the hon. and learned Gentleman had himself called degraded celibacy? He hoped that such a proposition would not meet with the approval of the Committee.

MR. SOTHERON ESTCOURT

said, he would confine himself to the Motion which stood first—namely, that of which the right hon. and learned Gentleman (Mr. Napier) had given notice. The advantage of adopting that Motion would be, that by so doing they would really be keeping the law as it at present stood. Now that, he thought, was the great principle of the Bill. Suppose that a woman had violated her marriage vow, and that a divorce ensued, what was likely to be the feeling of the great mass of her neighbours on the subject? She would, no doubt, be exposed for a little time to their just indignation; but he maintained that the general feeling of the neighbours would be that it was a great pity the man should not be enabled to offer to the woman the only reparation which he had then in his power to render. They would be acting wrongly if they attempted to make this Bill a reflection of the Divine law. No doubt it became them to bear that law in their consciences; but they must remember that they were then exercising their legislative functions with regard to a civil right. On the one hand, they ought not to give to guilty parties a right to claim religious sanctions to a second marriage; but, on the other, it did not become them to take away from a guilty woman a locus penitentiœ. He thought it most desirable that the Bill should be made to correspond as far as possible with the existing law, and this object would be in a great measure gained by adopting the Amendment of the right hon. and learned Gentleman (Mr. Napier.)

MR. BERESFORD HOPE

observed, that he did not understand the hon. and learned Member for West Gloucestershire to wish to reduce the guilty party to compulsory celibacy through life. What he believed the hon. and learned Gentleman meant to say was, that the adultress should be compelled to remain single during the life of her former husband.

MR. GRIFFITHS

said, he thought that if they prevented the intermarriage of the guilty parties, so far from promoting morality, they would simply encourage seduction, by freeing the seducer from the obligation which society imposed upon him of compensating by marriage the woman whom he had wronged.

Question put, "That the words the respective parties, stand part of the clause."

The Committee divided:—Ayes 110; Noes 50: Majority 60.

MR. ROLT

said, as the Amendment of which he had given notice had been virtually negatived by the division just taken, he did not feel justified in pressing it upon the Committee.

Mr. GLADSTONE

said, he had an Amendment to propose which would require him to make a statement of some length. He should therefore desire not to commence it at that late hour) half-past twelve.)

VISCOUNT PALMERSTON

observed, that the objection of the right hon. Gentleman was reasonable, and he would therefore consent that the Chairman should report progress.

The House resumed.

Committee report progress; to sit again To-morrow at Twelve o'clock,