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MR. BOWYER moved for leave to bring in a Bill to amend the law regarding actions for Criminal Conversation, and for the protection of women in such actions. He said the social and moral importance of this Motion required a degree of ability and authority in that House which he did not possess. But though he felt the difficulties of the task he had undertaken, he should not shrink from its performance, because he entertained a strong opinion that the subject ought to be brought before Parliament, for the purpose of removing a great blot upon the jurisprudence of this country. The law of England differed with regard to the mode of treating the offence of adultery from the law of every other country in Europe. By the Roman law adultery was punished as a criminal offence; ecclesiastical law also treated it as such; and, in all countries whose jurisprudence was founded upon the civil law, adultery was punished criminally. The law of England in relation to this offence was thus stated by Blackstone:—
Adultery or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts, yet, considered as a civil injury (and surely there can be no greater), the law, gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer. wherein the damages recovered are usually very large and exemplary.
In the year 1650, during, the existence of the Commonwealth, adultery was made a felony; but, upon the Restoration, the laws passed during the Commonwealth were annulled, and this was never subsequently renewed. Consequently, ever since the Commonwealth, adultery had not been a criminal offence. It had been treated only as a civil wrong, to be compensated by damages. Now, he submitted, in the first place, that the fact of the law of England differing on this subject from the law of every other civilised country, including that of the sister kingdom of Scotland, was strong presumptive evidence of its being wrong. We had the opinion of all civilised nations solemnly recorded in their laws, and their opinion was against the state of the law in
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this country. The law of the Established Church and that of the Roman Catholic Church was diametrically opposed to the law of England on this subject, whilst we all knew that actions to recover damages in such cases were continually made the subjects of bitter reproach against this country by foreigners. It really seemed incredible that wrongs of this sort could be brought to the test of pecuniary compensation. Feeling and honour were alike opposed to the practice, for it made the reputation of matrons and the peace of families a matter of nothing more than pounds, shillings, and pence. Indeed, he was confident that such actions would not be brought at all, or only in a very few instances, if they were not by the practice of Parliament made a necessary preliminary to obtaining relief by a preliminary verdict. This practice gave rise to gross and serious evils. Cases, for example, were by no means unfrequent of collusion between the husband and the wife for the purpose of proceeding for a divorce before Parliament; and another abuse, by no means unfrequent, was that of an unprincipled husband availing himself of the degradation of his wife, either for the purpose of obtaining abundant damages, or a consent to a lucrative compromise. The consequence of such a state of the law was that practically these actions were an abomination to honourable men. They were a species of proceeding against which the minds of men of honour revolted; and those men only resorted to it because they were driven and obliged to go through the ordeal for the purpose of obtaining a Parliamentary divorce. In point of fact, they were only voluntarily used by daring unprincipled men. On this subject he need only refer to the authority of Lord Erskine because of all the lawyers which this country had ever produced there never had been one more successful in this species of proceeding. Yet, with all his success, he looked upon these cases with something like abhorrence:—
It is impossible to put the argument in mitigation of damages in plain English, without talking such a language as appears little better than an insult to your understanding, dress it up as you will. But it may be asked—if no money can be an adequate or indeed any compensation, why is Mr. Markham a plaintiff in a civil action? Why does he come here for money? Thank God, Gentlemen, it is not my fault. I take honour to myself that I was one of those who endeavoured to put an end to this species of action, by the adoption of a more salutary course of proceeding. I take honour to myself that I was one of those who
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supported in Parliament the adoption of a law to pursue such outrages with the terrors of criminal justice. I thought then, and I shall always think, that every act malum in se directly injurious to an individual, and most pernicious in its consequences to society, should be considered to be a misdemeanor. Indeed, I know of no other definition of the term. The Legislature, however, thought otherwise, and I bow to its decision; but the business of this day may produce some changes of opinion on the subject.
Lord Erskine, therefore, was clearly of opinion that the state of the law in these cases was greatly to be deprecated; but his clients resorted to it because they had no choice. In devising a remedy for this great defect in the law of England, two courses were open to him. He might have proposed a Bill making the offence a misdemeanor. This course would have been exceedingly consistent, for it would have assimilated the law of England to the law of all other civilised countries—to the Jewish law, to the law of the Established Church, and to the law of the Roman Catholic Church, in countries where that Church was established. But it appeared to him probable that the House would hardly be prepared for so great a change; and therefore, after mature reflection, he had thought it best to propose no greater alteration than was absolutely necessary for the purpose of removing the evils and blots which he had just pointed out. He proposed, then, that in future no damages should be given in any action for criminal conversation, and that, upon a verdict being found for the plaintiff, the Court should be empowered to impose a fine upon the defendant. No doubt it might be objected that this would be mingling a species of criminal with a civil proceeding; but when the Bill came to be considered in Committee, he thought it might be desirable to consider whether, in the place of this civil proceeding, an indictment might not be advisable. If any hon. Member proposed the substitution of an indictment for an action in cases of criminal conversation, it would be for the House to decide; but at present he thought it right to confine his attention to such alterations as appeared to him absolutely necessary for the purpose of remedying that which seemed to him a very great defect. He now came to the second part of the measure, namely, the protection to be given to women in such actions. In all such actions, the defendant was the person charged with having committed the offence; and, although the wife was upon her trial, and its issue might
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involve her utter ruin and destruction, she had no part in the proceeding. She was not heard at all. Between the husband and the defendant the question substantially was a question of money; the husband wished to obtain as high damages as he could, and the defendant, naturally enough, desired to diminish those damages. It was, therefore, between them, a question of money; but with the woman it was one of destruction and ruin. He would not discuss the severity of society in these cases, except so far as to say that in many instances it was carried further than humanity would warrant, and that it rendered the position of a woman, subjected to proceedings of this sort, one of most serious danger. The most abominable charges might be brought against her by witnesses in the action, and enforced by all the eloquence and ingenuity of counsel; she might thus be held up to the world as a being utterly degraded; yet she was neither allowed to produce a single witness, nor to say a single word, either in vindication of her innocence or in mitigation of the imputed guilt. There were many cases in which defendants might be advised that upon the whole the best course was to submit to judgment by default, and attempt to mitigate the damages before the sheriff upon a writ of inquiry. But the woman could have no part in these proceedings. The defendant might not care for the verdict; his habits, character, and associates might be such that a verdict against him would be a trifle; in some cases, indeed, he might be proud of it. But with the woman the case was far different; with her the question was one of life or death; yet she could not be heard. In many cases the interests of the defendant and the woman might be antagonistic, yet she could not be heard. Blackstone mentioned, as one of the circumstances in mitigation of damages, the previous character of the woman. If that previous character were bad, the injury to the husband would be less. Thus, it was the interest of the defendant to run down the character of the woman in order to diminish the amount of damages. His interest was therefore antagonistic to that of the woman, yet she could not be heard. It might be, too, that it was the object of the husband to procure a divorce, and for this purpose he might collude with the defendant. In this way the interests of the woman might be sacrificed, yet she could not be heard. There was a passage on
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this subject in Lord Brougham's speech in 1834, on the Custody of Infants Bill, which deserved attention:—
Adultery was as much a crime in man as in woman; it was denounced by the laws of God in both, and equally reprobated by the laws of the land in principle, though not equally punished. If the wife made a slip, and forfeited the allegiance to her husband which she swore when she took her marriage vow, an action for damages against her paramour was instantly brought, and in that action the character of the woman was at immediate issue, although she was not prosecuted. The consequence not unfrequently was, that the character of the woman was sworn away; instances were known which, by collusion between the husband and a pretended paramour, the character of the wife had been destroyed. All this could take place, and yet the wife had no defence; she was excluded from Westminster Hall, and behind her back, by the principles of our jurisprudence, her character was tried between her husband and the man called her paramour.
This passage established the whole of this portion of his argument. He took his stand, however, not upon particular cases, but upon general principles. The general principles of our jurisprudence was to condemn no one unheard. This, indeed, was a principle of Divine law; and Lord Chief Justice Eyre, making use of a scriptural illustration, said that even Cain was called upon for his defence. Even the Omniscient God said, "Cain, where is thy brother?" and heard his answer. The principle was founded upon Divine justice, and upon this he rested his case. By the present law the woman was condemned unheard; and it was quite astonishing that such an anomaly should have so long existed in the laws of a civilised and Christian country. He would now tell the House the remedy which he proposed to apply to this great and crying evil. First, he proposed that no action for criminal conversation should be brought without notice being given to the wife of the plaintiff; if she could not be found, such notice to be left at her last known place of residence. She should have ten days to decide whether she would appear or not; if she gave notice of her intention to appear, then she was to receive the same notice of all the subsequent proceedings in the suit to which the defendant was now entitled. In fact, she was made substantially a defendant. On the trial she was to be entitled to appear by counsel and to call witnesses, and she would have the same means of enforcing the attendance of witnesses and the production of evidence as the defendant. By such means she would be enabled to make her defence. If the defence
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was not successful, she would at least be able to place her conduct in a more favourable light than if she had been tried behind her back. The case would thus be fairly before the court, the risk of collusion would be diminished, and the woman would be a party to the proceedings. He had now stated the provisions of the Bill, and if the House consented to its being laid upon the table, he should then propose that it be printed, in order to its being fully considered in the forthcoming vacation, and on the understanding that the decision of the House should be taken upon it on the Motion for the second reading. The hon. and learned Gentleman concluded by moving for leave to bring in the Bill.
§ MR. COBDENseconded the Motion.
MR. FITZROYsaid, he wished his noble Friend at the head of the Home Department had been in his place, to explain to the House the views which he entertained on the important subject which had been introduced by the hon. and learned Member for Dundalk (Mr. Bowyer). His noble Friend had been in attendance the greater part of the evening for that purpose; but at that moment, not expecting the Motion of the hon. and learned Gentleman would be brought on just then, was temporarily absent. He (Mr. Fitzroy) could, therefore, simply state, on his behalf, that the change which was now proposed to be introduced was of so very large and important a character that, in agreeing to permit the introduction of the Bill, it was not to be understood that the Government adhered to its principle in any way. At the same time, with regard to a measure of this kind, which was brought forward by a Gentleman of such great legal experience and knowledge as the hon. and learned Member, and on a subject with reference to which the present state of the law was admitted to be unsatisfactory on all hands, the Government did not wish to throw any impediment in the way of reasonable reform; but it was most important that the House should have a full opportunity of considering the provisions of such a Bill. There could be no diversity of opinion whatever with regard to the question of damages in actions for criminal conversation being one which was exceedingly revolting to every honourable mind; and the compensation rendered to wounded feelings being made very often a matter of pounds, shillings, and pence, was very unsatisfactory, whilst it must be odious to 424 every well-regulated mind. Under these circumstances, he had no objection, on the part of the Government, to assent to the introduction of the Bill.
Leave given; Bill ordered to be brought in by Mr. Bowyer and Mr. Cobden.