§ The House went into a committee on the Roseberry Divorce Bill. Mr. Topping and Mr. Jones appeared before the committee as counsel in support of the Bill, and were heard. There was no counsel in attendance on the part of lady Roseberry. The witnesses necessary to support the case were then called in and examined. After which the counsel withdrew. The clauses of the Bill were then read. Upon the clause for making provision for the countess of Roseberry, and allowing her 300l. per annum for her life, being read,
§ Mr. M. A. Taylorrose and said, he did not think the sum proposed in this clause sufficient to provide lady Roseberry with the common necessaries of life. He was one of those who could not accede to the opinion of the late lord Thurlow—an opinion which seemed, indeed, to have crept into the minds of many individuals, that after a woman has committed an act of adultery, she ought to be turned naked into the streets, without the means of sustaining existence. He had opposed many divorce bills which had been framed upon this principle, and therefore the less surprise would be felt at the course which he conceived it his duty take on the present occasion. He would appeal to the feelings of the House, whether it was; possible for lady Roseberry, after the splendour in which she had been accustomed to live, to support herself upon the miserable pittance of 300l. per annum. It might be said, that this limited income must be considered as a part of the punishment of her crime. He was as little in- 787 clined as any man to become the apologist of lady Roseberry; yet he thought the punishment she had already encountered, in being driven from society, and shut out from all those domestic joys, as well as social comforts, to which she had heretofore been accustomed, was punishment sufficient, without casting her upon the world to starve. Entertaining these feelings, he thought the House would think it but justice, if an addition of 200l. was made to the sum which this clause proposed. An income of 500l. per annum would then be given to this unfortunate lady, which would at least preserve her from the necessity of contracting an improper alliance, and enable her to pursue the paths of virtue and integrity. The means of lord Roseberry were ample, and he conceived his lordship would feel no reluctance in making this additional provision. To a succeeding clause he had also strong objections, but he should reserve himself upon that subject till the present clause was disposed of. The hon. and learned gentleman then moved the addition of 200l. per annum to the 300l. already proposed in the Bill, as the allowance to lady Roseberry.—On the question being put,
The Attorney-Generalsuggested the propriety, as his hon. and learned friend had intimated an intention to oppose another clause of the Bill, which he had no hesitation in anticipating to be the clause interdicting the marriage of lady Roseberry and sir Henry Mildmay, of postponing the consideration of the present clause until that question was disposed of; as, if the House, permitted the marriage to take place, which he trusted would not be the case, the clause allowing maintenance would come in a very different shape.
§ Mr. Tayloragreed to postpone the clause. On the clause for forbidding the marriage of the countess of Roseberry with sir Henry Mildmay being read,
§ Mr. M. A. Tayloragain rose, and declared his hostility to this clause. Many attempts, he said, had been made to introduce a general law applicable to offences and cases of this description, all of which had hitherto failed in their progress through the legislature. In 1771, and in 1779, the same effort had been equally fruitless. In 1800, the Bill commonly called Lord Auckland's Bill was introduced, and met in that House with a like fate. That measure had two purposes 788 in view, the first to render the adulterer amenable to the criminal law, by constituting his offence a legal misdemeanor; and the other to prevent marriages between the offending parties. So far, however, was this measure from meeting the approbation of the first civilians of that day, and so adverse was it to the general feeling of that House, that it was at length, abandoned, and had never since been resumed. He knew that the consequence of this refusal on their part to pass the Bill had been, that the Lords had made a standing order against agreeing to any Bill of Divorce, which should not contain a clause to the same import and effect, as far as related to the interdiction of marriage. This standing order had, however, already been dispensed with in several cases, and he apprehended ought to have no weight on any occasion in the deliberations of that House. His own opinion decidedly was, that looking at the present case with all its attributes, and in its deepest colours of aggravation, there was nothing to induce Parliament to legislate on the principle, that this was a new case, or one that required a particular enactment. As far as it stood distinguished from other offences of criminal conversation, the distinction arose from the institutions of the canon law and the relationship between the parties. But there were degrees of consanguinity prohibited by the canon law, which did not impede the act of marriage under the ordinary administration of the common law. He believed, that of every hundred marriages which were solemnized in this country, three were contrary to the express ordinances of the ecclesiastical canons. There were old canons, indeed, which prohibited marriages not likely to take place, such as marriage with a grandmother: but there were also prohibited cases which, in his own knowledge, were constantly recurring, such as marriage between cousins, and marriage with a brother's widow. Why, then, he wished to know, if there would have been no impropriety, or departure from the usages of society, had marriage taken place between lady Roseberry and sir Henry Mildmay, supposing no obstacles to have stood in the way, and no crime to have been committed, was this circumstance of relationship now to be converted into an objection to that marriage, or into a heightening feature in their offence? He trusted he was too well known to be supposed indifferent to 789 the interests of morality, or the importance of public decorum. He was not aware that he was subjecting himself to such misrepresentations; and he could assure the House that he had no acquaintance with either of the parties in this unfortunate transaction. What he considered was, that as the canon law did not avail as a general rule, it was not necessary, either in common sense or common justice, that the offender in this instance should be driven an outcast from society, without any chance or means of returning to character and respectability.
The Attorney-Generalprotested against the doctrine, apparently assumed by his hon. and learned friend, that all those who opposed the Bill of lord Auckland in 1800, were bound by that vote to give the same opposition to the present clause. As little did he think his hon. and learned friend justified in supposing, that any enactment of mere privilege in the other House ought to influence the deliberations of the House of Commons, or provoke them to a belief that their own privileges or legislative authority had been infringed. It was with perfect astonishment he had listened to the statement, that of every hundred marriages celebrated in this country, three at least were contrary to the canon law. His own observation led him to a conclusion very different indeed from any belief, that incestuous marriages were thus frequent, or that the injunctions of the spiritual code were thus daily violated. The first plain question for the House to consider was—what was the nature of the crime itself, stripped of its adventitious deformity, of all its peculiar and more odious characteristics? It was the crime of depriving a worthy and innocent man of what was most consoling and valuable to him in this life; it was the crime of depriving four young children of the care and attentions of their maternal parent. But, said his hon. and learned friend, this is an ordinary offence; why lake this out of the disgraceful catalogue, and stigmatise it with any marked or, added severity? Was there, then, no incest in this crime—was there no blood in it—was there in all its circumstances nothing beyond the impropriety of an individual seducing his friend's wife? It could not be meant that there had been no affinity, no trust nor confidence arising from affinity, beyond the common intercourse of friendship, or the ordinary civilities of society, in the case now under considera- 790 tion. It was impossible that this should be contended. In this country, happily, men felt secure under the guardianship of public law and public morals. It was not necessary that their vigilance should be ever awake, lest their domicile, or their chamber itself, should be insulted and profaned. Much did he believe the sanctity of morals, and the purity of domestic life, to be interested in the conduct of that House in cases like the present. His hon. and learned friend had, he did not know whether ludicrously or not, alluded to the prohibitions of the canon law, and the illegality of a man intermarrying with, his grandmother: but his hon. and learned friend would not deny, that the evil existing in the world must be increased to an indefinite extent, if it was allowed to increase in the same proportion as the trust and hospitalities of consanguinity should establish an intercourse without suspicion or reserve. It had been well said—Admit such a principle, and it will behove you to take care of your nurseries. His hon. and learned friend had described it as a common case; he solemnly declared, that, in his own experience, he had not met with one equally atrocious. To him it appeared that it would have been more natural and excusable in sir Henry Mildmay, to have poisoned the mind and debauched the body of his own sister, born of the same womb, and trained by the same band, than to have, planned, conducted, and consummated the ruin of lord Roseberry's family, under all the circumstances by which that ruin was accomplished and attended. Let the House suppose for a moment that lord Roseberry had entertained some apprehensions, and expressed to his hon. and learned friend, or any other person, a wish that sir Henry Mildmay would not repeat his visits; what would, what must have been the observation of his hon. and learned friend? Would he not have said, Good God! how can you receive such an apprehension into your mind; was he not the husband of your wife's sister recently deceased? is it strange that he should find a willing audience, that they should find a mutual consolation for their common loss in retracing those ties and affections which had bound them to so near a relative? Was not this the man, he would ask, to whom the doors of a confiding friend would naturally fly open? Was it a common case for a man so situated to destroy the happiness of an af- 791 fectionate husband, and deprive children of a mother, bearing a resemblance to his own deceased wife, and whom he was by the same act plunging into infamy and dishonour? The House, he trusted, would not proclaim to the people of England, that they must no longer trust to the habits of society, to the feelings of mankind, to the principles of morals, lest the individuals whom they were the last to suspect should betray their quiet for ever. By the law, as it stood at present, if the intermarriage of these parties was permitted, all that the omission of this clause could do, would be to legitimatize the future offspring to the prejudice of the offspring born before marriage. He doubted, indeed, if such a marriage was likely to take place, even if not prohibited. Those who triumphed over female chastity soon became tired and disgusted with their victims. Frail and treacherous was the hope that rested on the faith and fidelity of an adulterer. Claims in law or in public justice lady Roseberry had none; what she had on the justice of sir Henry Mildmay he should not pretend to describe: but what he wished to impress on the House was, that the purity and sanctity of social and domestic life were immediately involved on this occasion; that the sentiments and securities of family honour, and that the dignity and solace of private life, all that secured the paternal home, and the relation of brother and sister from pollution, were in a great degree at stake, and had been all outraged and violated by the libertinism of sir Henry Mildmay.
§ Mr. M. A. Taylorthought, that the commmittee should be on its guard against the eloquence of the right hon. and learned gentleman, whose argument appeared to him in the nature of an address to a jury to obtain large damages. He considered that the case had been much exaggerated, by terming it an incestuous intercourse. He believed that there were numberless marriages in this country which might be void by the strict application of the canon law. He knew many men, of the most respectable character in other retpects, who had married their first wife's sister. If there was already a law upon the subject, why should not the present case be left to the operation of that law? It had been said, that it was probable that lady Roseberry would be ultimately deserted by sir Henry Mildmay. Much, however, as he condemned the 792 crime which sir Henry Mildmay had committed, he did not believe that he would desert her, or that any gentleman would desert a woman in those circumstances. He could not conceive that it would be any disgrace to the House to strike out that clause, or even to permit the parties to live together in an honest way. If there was at present any law against their marrying, a process might be instituted in Doctors' Commons to prevent it, and there was no occasion for the special interference of the House upon the subject. He did not require the eloquence of the hon. and learned gentleman to make him feel that it was a great crime to go into the house of a brother-in-law, and seduce his wife. Bad as the thing was, he conceived that it had been much exaggerated in the description.
§ Mr. Lockhartthought, that his hon. and learned friend need not complain of the eloquence of the Attorney-general, as it appeared to have made so little impression on him. His argument, however, had been bottomed on the opinions of all the best writers upon the subject. They all described the crime as most peculiarly destructive to public morals, when committed by persons to whom affinity or propinquity afforded the most unrestrained intercourse. They therefore conceived, that the strongest prohibitions were necessary to prevent the crime from being committed under those circumstances. The canon law had determined that such marriages were incestuous, and he saw no reason to contend against that interpretation which the English law had adopted. As to the question of privilege as between the two Houses, he conceived that every case stood upon its own merits, and that this was a peculiar case, which ought to be excepted from the common rule; Here it was evident, that the canon law was not hostile, but auxiliary to public morals. He should, therefore, vote for the adoption of the clause, on the ground of the peculiarity of the case.
Mr. Wynnsaid, that the insertion of the clause in the present instance did not bind the House to the adoption of a similar clause in other cases, because a divorce bill was at all times a special interference of the Legislature, which they might fashion according to their discretion. There had been a precedent for the admission of a similar clause in Campbell's Divorce Bill in 1801, in which it was specially inserted to meet the objections 793 of some members, that the forbidden marriage would have been incestuous—such a declaration might be inserted in the present Bill.
§ Mr. W. Smithwas ready to vote for the clause, as he considered the present case a very aggravated one. He could not vote for it, however, if there was any statement of the connexion being incestuous, as he did not consider it to be so. If it was declared incestuous, it would exceedingly hurt the feelings of many very respectable people who were now married to the sisters of their former wife.
§ The Committee then divided: For the clause, 111; Against it, 20:—Majority 91.
§ Mr. M. A. Taylorcould not avoid bowing to the decision of so large a majority, although he had felt it his duty to urge those arguments which pressed upon his mind. He now came before the committee in another capacity, and must intreat them to consider whether, if lady Roseberry should still have virtue enough left (as he hoped she had) to quit the connexion with sir Henry Mildmay, it would be right that she should be reduced to the miserable pittance of 300l. a year, which would be totally insufficient to support her in that sphere of life to which she had been always accustomed. It would be insufficient for her existence in any kind of comfort, even although she were always to live as an exile in a foreign land. He concluded by moving as an amendment to the clause, that an additional 200l. per annum should be allowed for her maintenance.
§ Mr. Prestonsupported the amendment, as lady Roseberry had lost the benefit of the jointure of 1,500l. a year, which had been settled upon her at the marriage.
§ Mr. Lockhartwished, that the hon. gentleman could inform the committee what was the fortune which the lady brought?
§ Mr. Taylorsaid, that he was not acquainted with either of the parties, but he understood that her fortune was 6,000l. which in the 3 per cents. gave 10,000l. stock.
§ Mr. Bathurstcould not agree with the hon. gentleman (Mr. Taylor), that the fund for producing the moral effect which he had anticipated should be taken out of the fortune of lord Roseberry. This would be leaving no discretion at all to the husband to improve her circumstances, if she reformed her conduct, but would be directly carving out of his fortune that which ought to be left entirely to his ge- 794 nerosity. The interest of the fortune which the lady brought was now to be given up to her; and he saw no reason to compel the husband to provide out of his fortune for her future morality. He thought that the House had no right to dictate to him what he should give to lady Roseberry, in case of her repentance and reformation. This should he left entirely to his own feelings. The argument of the hon. gentleman would go to this extent, that if any woman was elevated above her rank in life by a marriage, she immediately became entitled to be supported out of the fortune of her husband in that rank, however she might forsake her duties as a wife. If the interest of lady Roseberry's fortune, 300l. a year, was stated to be quite incompetent to her support, he could not see upon what principle the House could undertake to carve out of the fortune of lord Roseberry such an income for her as would satisfy the hon. gentleman.
§ Mr. Serjeant Bestcould not conceive how it could be contended, that a lady who had conducted herself as lady Roseberry had done, was as fully entitled to the jointure settled on her at the marriage, as if she had lived with her husband in the performance of her duties. He could not see what claim the lady possessed, upon any principle of justice, upon the noble lord. If she had any claim on him, it was merely on his humanity; and from the character of the noble lord, he had no doubt, that whatever claims of that sort she might have, would be attended to as much as they deserved. It was not for that House to regulate the feelings or the bounty of the noble lord.
§ Lord A. Hamiltonspoke in favour of the amendment.
Mr. Abercrombiethought, that when lady Roseberry came to that House to demand a favour, it was for them to consider on what terms it should be granted. It was, then, competent for the House to judge whether 300l. per annum was sufficient provision for her. As to the opinion expressed by an hon. and learned Serjeant, as to what lord Roseberry's feelings would probably induce him to do, this would have great weight with him if he conceived it as coming from any person authorized by his lordship to make such a statement; but as a mere opinion expressed in debate, it should not prevent him from voting for what he thought would be a proper provision for the lady.
The Committee then divided upon the 795 Amendment:—For it, 69; Against it, 16;—Majority 53.