§ Order for Committee read.
§ House in Committee.
§ Consideration of the 25th clause resumed.
LORD JOHN MANNERSsaid, he rose to move the insertion, after the word "adultery," of the words "or of adultery committed in the conjugal residence." He had to complain that the Government had ignored the existence of the codes collated by Mr. M'Queen in his valuable paper, which seemed to have been collated for the guidance of the House of Lords, but not for the guidance of the House of Commons. He had not been able in the short time which had been allowed to consider the blue-book to make a critical analysis of all these foreign codes, but it was clear that with regard to France, which was the most matured law, and the result of the opinions of Napoleon and some of the ablest men of his day, the wife had a right of demanding separation a mensà et there, where the husband had committed adultery in the conjugal residence. He had adopted those words in the French code as translated by Mr. M'Queen. In Sweden the wife was permitted to claim a divorce on the ground of adultery alone on the part of her husband. In Bavaria divorce a mensá et thoro, was granted indiscriminately to the wife and to the husband; Sardinia and the Two Sicilies, he believed, followed the rule of France. It was obvious that many of the most heartrending, most aggravated, and most cruel cases of adultery would not be met by the words as they stood in the clause. If they were about to change the law of England with respect to divorce, and to give the wife a right to claim divorce under certain circumstances, they would do well to consider the provisions of the law in other countries, and, in his opinion, the decision arrived at by the French jurists was more in accordance with good sense and with the kindness and respect which they ought to show to the female sex than the extraordinary provisions of the clause as it stood. He therefore moved the insertion of these words.
§ MR. GLADSTONEsaid, he must beg leave to take objection to the speech of the hon. and learned Attorney General 1535 alike as a statement of facts and an enunciation of principle. The further they advanced in the discussion of this Bill the more obvious did it become that it was most essential it should be subjected to an examination and scrutiny which had not been given either by the House of Lords who passed, or by Her Majesty's Government who were responsible for it. Let them try the statement of his hon. and learned Friend first as a matter of fact, and next as a matter of principle. The Attorney General said they were only going to embody in the present Bill the expression of the administration of the existing law. Was that true in point of fact, or was it not? In the first place he must remind the Committee that the Government invited them, and if they should so decide they were about to abolish the action of criminal conversation. Was that an expression of the existing law, or was it not a change of enormous importance, if joined with no other, and was it not a change which of itself required the maturest and most careful discussion? They were also going to constitute adultery a criminal offence, or something like it, or, if not a criminal offence, a nondescript transaction, neither criminally nor civilly punishable. Was that embodied in the existing law? Was that the expression of the existing law? His hon. and learned Friend said he declined to admit the Amendment on the ground that the Bill made no change in the law. Would his hon. and learned Friend have the kindness to acquaint him in what case a woman had obtained in the House of Lords a divorce from her husband on the ground of desertion during two years and upwards? He should like to have a reply to this question before proceeding further upon the consideration of the subject.
§ SIR GEORGE GREYsaid, that if every hon. Member who addressed the Committee were to put a specific question in the middle of his speech, and then wait for a reply, the result would be great waste of time and considerable inconvenience.
§ Mr. GLADSTONEsaid, the object of his question was not to create delay, but to prevent it. He believed there was no case in which divorce had been given for adultery, coupled with, desertion for two years and upwards; but before proceeding to comment on the speech of the Attorney General in that sense, he had thought it fair to his hon. and learned Friend, as he was not himself minutely conversant 1536 with the history of proceedings in the House of Lords, to put a question to him upon a matter of fact, which, if it were capable of answer at all, might have been answered in three words. Such had been his purpose, and he was in the judgment of the Committee whether it would not have tended to shorten debate rather than to prolong it. However, there was no answer forthcoming, and he was therefore driven to the alternative of supposing that there was no such case as divorce for adultery coupled with desertion. That being so, what became of the statements of the hon. and learned Attorney General, and what confidence could be reposed in his accuracy in describing matters of fact? The hon. and learned Attorney General had told them distinctly that he refused to entertain a proposition which he admitted had much reason in it, because it was making an alteration in our law of divorce. Well, according to facts, judged by the silence of the Attorney General, the Bill already made an alteration in what his hon. and learned Friend called our law of divorce a vinculo. The Bill provided for an entirely new category of divorces a vinculo, and therefore he called upon the Attorney General on his own principles either to strike out of the Bill divorce a vinculo for adultery coupled with desertion for two years and upwards, or else not to attempt to stifle discussion upon the important Amendment of the noble Lord the Member for Leicestershire. He now came to that part of the speech of the hon. and learned Attorney General in which he dealt with this question as one of principle. The hon. and learned Gentleman had told the Committee that it was their business to embody in the Bill an expression of the administration of the existing law, and not to change it in any respect whatever. He ventured to say that a more preposterous proposition never was submitted to Parliament. The Attorney General had spoken of the administration of the existing law as if it had been something fixed and systematized upon a principle; whereas, on the contrary, it had been in a constant state of growth and development from generation to generation. The House of Lords, acting like wise and prudent men, had dealt with cases according to circumstances, and when new cases had come forward of sufficient gravity to induce them to think that they ought to be included by parity of reasoning within the principles upon which they had formerly granted 1537 divorce Bills they had made fresh admission of such cases accordingly. That was a rational principle; and not only with regard to those new cases, but with respect to the remarriage of the guilty person, and the intermarriage of the two guilty parties the practice of the House of Lords had also been in a stale of growth and development. To represent, therefore, that the administration of the existing law was somewhat consistent, systematized, and fixed, constituting of itself a firm standing ground, so that we had nothing else to do but to place our feet there, he must say was a proposition entirely unworthy of the Attorney General. More; he ventured to say it was a proposition which the hon. and learned Attorney General would never have made if it had not been for the extraordinary circumstances under which this Bill was being pressed through Parliament, and which rendered it absolutely necessary to stop discussion and prevent that consideration which the subject required. Such was the true reason for saying that the Bill was merely an expression of the administration of the existing law. Nor was this all that the extraordinary speech of the Attorney General opened to the Committee. He had understood that the real object of the Bill was to get rid of the quasi-judicial proceedings before the House of Lords, and to substitute for them a real judicial proceeding in a Court; but the hon. and learned Attorney General now called upon the Committee to pass the Bill upon the ground that it was merely an expression of the existing law, and then for the improvement and extension of that law to trust to the new precedents which would from time to time be established by private Bills of divorce brought before the House of Lords, and receiving their affirmation, thereby becoming equivalent to judgments upon appeals. If the Attorney General really contemplated that the law of divorce was still to remain exactly in the same fluent and uncertain state, subject to modification, relaxation, and addition by successive private Bills, he could only say that he cut from under his feet whatever little narrow shred or strip of ground yet remained for him to stand upon, and again supplied a conclusive proof of the crudity and precipitancy of the Bill and the scarcely decent haste with which it was being pressed through Parliament. Differing entirely from the Attorney General in regard to his facts and principles, he likewise differed from him in the 1538 practical result which would arise from his speech. He thought there were very strong grounds for entertaining the proposal of the noble Lord the Member for Leicestershire, or something equivalent to it, and if the noble Lord had not brought forward this Amendment, he should have done so himself. The noble Lord proposed that they should introduce into the Bill a provision by which not only bigamous adultery, adultery with cruelty, adultery with incest, and adultery with desertion should supply a wife with grounds for a divorce, but likewise adultery committed in the conjugal residence. They were going to give divorce to a woman for adultery with cruelty. Now, adultery with cruelty was at present a thing almost unknown in the higher classes of society, because the cruelty mentioned in the clause did not mean moral cruelty, but cruelty attended with the effect of producing bodily fear. He was afraid that in the lower classes the consequence of their giving a remedy for adultery with cruelty, and not for adultery alone, would be in a multitude of instances to induce the husband to add cruelty to adultery, with a view to divorce. That which in the higher classes bore an analogy to adultery with cruelty in the lower was adultery with insult—adultery paraded under the roof and in the view of the suffering wife,—adultery with moral cruelty; in short cases of that kind were common in the upper ranks of society. They were not likely to find among those classes adultery with desertion, adultery with incest, or adultery with bigamy, but he was afraid there were many examples of that sort of adultery which was attended with the greatest amount of convenience and luxury to the profligate husband, and which consisted in his converting his own house into the scene of his infamy, while at the same time he complied with the demands of society by maintaining outwardly peaceful relations with his wife. That was the form which the temptation took in the higher classes, and that was exactly what the Government had omitted from their Bill. He hoped, therefore, that the Committee would adopt the Amendment of the noble Lord the Member for Leicestershire, or something equivalent to it in its spirit and its effect.
§ MR. DRUMMONDsaid, he should proceed upon the same principle with regard to the noble Lord's Amendment as he would with his own, namely, to support any proposition having for its object the establishment of perfect equality between 1539 the sexes. The clause as brought in by the Government would permit a man to turn his house into a brothel, while he could discard his wife for a single act of adultery. Grosser and more horrible systematic cruelty could scarcely be devised, and to the shame of English gentlemen be it said, that this was the only country where such a law was tolerated.
§ MR. KNATCHBULL-HUGESSENsaid, that as one of the majority who voted for the second reading of the Bill, he would beg to state that he had not done so upon the grounds assigned by the hon. and learned Attorney General. When he voted for the second reading he had not carefully considered all the details of the measure, but, believing that the present state of the law of divorce was not satisfactory, he had confidence in Her Majesty's Government that they would propose a suitable measure for the amendment of that law. But he had the strongest objections to the clause now before the Committee, and should vote for every Amendment that would tend to better the unfair position in which a wife was now placed. It was proposed that a sin which, by whomsoever committed, was equal in the sight of God, should be permitted in one case but not in the other. He demurred to that principle, believing that the sanctity of home would be best maintained by perfect equality existing between husband and wife. The clause proposed to protect the lust of the man from the scandal attendant upon an application for divorce, and to pour out the vials of legislative wrath upon the woman alone. Women's sins generally arose from the weakness of their nature—men's from the strength of their passions. Men also had, in reality, fewer excuses for a crime to which a woman was often led by her finer feelings in seeking some one to love and cling to when her affections had been driven from their legitimate channel by the cruelty or desertion of him who had vowed at the altar to cherish and protect her. It was said that the sin of a woman led to greater social evil than that of a man, but was it not a great social evil that a man should be permitted repeatedly and with impunity to indulge in sin, and would not such a state of the law hold out strong temptations to men to indulge in vice? He believed the clause as it stood was founded in injustice, that it was opposed to morality and to the Christian religion; and, though he was desirous of supporting the Government, 1540 he could not allow that feeling to interfere with his duty to society at large, and therefore he should vote deliberately and conscientiously for the Amendment of the noble Lord (Lord J. Manners), as well as for every Amendment which would lead to the establishment of principles of equality between the sexes.
MR. NAPIERsaid, he fully concurred in every observation that had fallen from the hon. Gentleman who had just spoken. As the Lord Advocate was now in his place he (Mr. Napier) would remind the House that in Scotland husband and wife were placed upon a footing of perfect equality. In this country there was no law governing such matters, which were left to be dealt with by private legislation. In cases of adultery the Legislature had declared that there was no scriptural objection to granting divorces under special circumstances, but that they should be dealt with as public policy might suggest. When a wife applied for a divorce the Legislature had decided not as a matter of law but of public policy not to grant it. It should be remembered, however, that the present clause as it stood limited the power of obtaining divorce by the wife to one or two cases, and as the Amendment introduced a fresh case, in which he thought it ought to be granted, he should vote for it. He had already voted for a perfect equality between husband and wife, and he could not see that there would be any danger likely to arise from adopting the Amendment, because wives would not be likely to apply for divorces on account of simple adultery alone, but would do so only in cases where the husband's adultery was accompanied by circumstances which rendered continued cohabitation impossible.
§ MR. AYRTONsaid, he should support the Amendment as in accordance with the spirit of the clause as introduced by the Government. The objection started by the hon. and learned Attorney General was entirely untenable, for the principle of divorce for desertion was not in accordance with the old principle either of the House of Lords or of the Ecclesiastical law. Therefore they adopted a new principle as regards both forms of the law. The clause already recognised desertion in one form as a reason for divorce, but cohabitation in the same House was really desertion in the spirit, if not in the terms, of the proposition. The husband in cases of adultery scarcely ever deserted the wife. It was the wife who was compelled to 1541 leave her husband when a guilty woman was brought into it; and she had at present no remedy for this grievous wrong. They were now amending the law, and before passing any Bill for that purpose they were bound to see that it was made conformable to the principle of justice, and was likely to afford a remedy for a most aggravated form of suffering and injustice.
§ MR. HENLEYsaid, he must express his great surprise at the course which had been taken by the Attorney General on this Amendment. The hon. and learned Gentleman did not condescend to say a word against the Amendment, but with an aplomb possessed certainly by no other man in the House he refused to take it into consideration, because he said Parliament was not now engaged in altering the law of divorce. But was that the case? In the very clause under consideration, there were four cases for which a divorce might be obtained by the wife, and two out of those were new. The Royal Commissioners stated that only four divorces a vinculo had ever been granted to a wife, two of which were for incestuous adultery, and in the other two there was the element of bigamy. There was no one in the House, then, with the exception of the Attorney General, who would have the hardihood to say that they were not altering the law in this clause. The Committee, too, had just as much right to complain of the conduct of the Home Secretary. The right hon. Gentleman, when a plain question was put, got up and objected to its being answered because it would lead to delay. That was the right hon. Gentleman's idea of the manner in which this Bill was to be discussed. Again, the Committee had a right to hear the Lord Advocate's views upon this Amendment which was in accordance with the law of Scotland, where he believed it had worked well. What was the reason that the law was to be different in the two countries? If the law was wrong in Scotland the Lord Advocate ought to bring in a Bill to amend it. If it were right, why should it not be right for England? It was absurd to say that Parliament was not enacting a new law with regard to divorce, for there had been no law at all before in which the House of Commons had concurred. The House of Lords alone had laid down the condition's under which divorces could he obtained. In establishing a new law of divorce the wife ought to have the same rights as the husband. Nobody had denied 1542 that the sin of adultery was the same in the husband as in the wife, and the remedy ought to be the same. But one Member in the House—the hon. Member for Newport—had had the boldness to admit that the only reason for making this difference was the difference between the social effects of the crime in the two sexes. The Amendment of the noble Lord was a good Amendment; it was a step towards that perfect equality which he would get if he could, but as he could not he would get what he could. It would be easy to show that the argument based on the danger of collusive divorce was totally without foundation.
§ THE LORD ADVOCATEsaid, he had listened to the discussion with the deepest interest, and he was glad to find that the right hon. Gentleman had altered his mind as to the convenience of assimilating the laws of the two countries with respect to marriage. The law of Scotland proceeded upon the principle that the two sexes should be on a footing of equality, and that that principle was a correct one was proved by the result of social experience. No doubt there was a difference between the social effects of the guilt of the two parties. It was a difference which was recognised by society and by public opinion, and it was so plain and so elementary that it was unnecessary to point it out. Even the other sex at once admitted it, and condonation on the part of one sex might be amicable, while on the part of the other it would be degrading. But, notwithstanding that, he was of opinion that the rights of the two parties ought to be equal, because there was this countervailing balance, that nothing but absolute extremity would induce the wife to apply for the remedy. This was not merely a theoretical reason, for it was borne out completely by Scotch experience. In Scotland it was found that the proportion was as three to two. Out of seventeen cases in a year in a population of 2,000,000, seven were applications from wives, and ten from husbands. Out of 175 cases of divorce, seventy-three were at the instance of the wife and 102 at the instance of the husband. It was a mistake to suppose that divorces were only available for persons residing in and about Edinburgh. He had made inquiry, and he had found, on analysing the cases, that petitions proceeded from all parts of the country; but it might appear that they came mostly from Edinburgh because many of the parties would come to reside in Edinburgh while they 1543 were suing out a divorce. He bad agreed in the principle of the Amendment proposed by the hon. Member for Surrey the other evening with regard to the omission of the word "incestuous," but he had not voted for it for fear that it would entail the rejection of the Bill by the other House.
§ MR. HENLEYsaid, he wished to explain that he had never expressed any opinion Other than that marriage was dissoluble.
LORD JOHN MANNERSsaid, that the speech of the learned Lord, which did him infinite credit, demanded the serious consideration of the Committee, because it had been announced that it would be necessary hereafter to introduce fresh laws applicable to the cases of the Colonies and Ireland and Scotland. [The ATTORNEY GENERAL: Not as to Scotland.]—applicable then to Ireland, India, and the Colonies. Were these laws to be founded upon what the Lord Advocate had properly described as the principles of immutable justice, or upon those of this Bill? The hon. and learned Gentleman the Attorney General had altogether mistaken his own position as well as the spirit of the House, in the manner he had ventured to deal with the question. The argument of the Attorney General proceeded upon two assumptions. The first was that four cases which had been decided by private Acts of Parliament in the House of Lords were to be regarded as settling and establishing the law of the country; and the second was, that this clause in no way altered the law as laid down in those four cases. Now there was in the first place no law in England which authorised a divorce a vinculo; but admitting the first of these assumptions for the sake of argument, the other could not be supported, because it was proved by the report of the Commissioners that divorce a vinculo at the suit of the wife was never allowed by Parliament, except under two cases, that of adultery. coupled with incest and bigamy. But the present clause authorised two new cases—of adultery with cruelty, and adultery with desertion for two years. The Lord Advocate did not stand alone in the opinion which he had expressed. It was the universal opinion of Scotch lawyers that, if a divorce were allowed to the husband on account of the wife's adultery, the same remedy ought to be given to the wife on account of the husband's offence. What would be the practical effect of this clause if the Amendment were rejected? As a divorce was to be granted for adultery 1544 coupled with desertion for two years, a husband who showed so much respect and regard for the feelings of his injured wife as not to commit this great sin and crime in her presence, or under her roof, would be visited with the penalties of the law; but the man who flagrantly and shamelessly dishonoured the marriage bed, who kept his concubine in the house to the daily and hourly torture of his wife's feelings, would be sanctioned and upheld by the law in the violation of his marriage vows. Truly it seemed to him that justice, the principles of religion, and social expediency, all combined to condemn the clause as it stood.
THE ATTORNEY GENERALsaid, I think that I have a certain right to complain of some of the remarks which have been made with regard to myself in connection with this Bill in quarters where I should least have expected them, but I am sure that upon cool consideration the Committee will see that those attacks which have been made upon me are without the slightest foundation. This Bill was committed to my charge as being based upon the limited principle of embodying the existing law with regard to divorce, and I presented it to the House as being based upon that principle, and I explained upon the second reading of the Bill the course which we proposed to adopt in order to carry out that principle. It is undoubtedly true that divorce on account of desertion for two years and adultery has not in that specified form been embodied in any Bill which has passed the House of Lords, but, although the statement which I made may be carped at, as it has been, it was substantially correct. Well, then, I am now, such being the principle upon which the Bill was introduced, invited to enter into the consideration of a question, no doubt of great importance, and one which it would be most fitting, if not most material, to consider if we were proposing to place the law of marriage on a new foundation; but that is not the function which we are now called upon to perform. I made no such representation when I introduced the Bill into the House, nor was it upon any such principle that the majority of this House voted for the second reading of the measure. I think, therefore, that I have some right to complain of the language which has been adopted by the noble Lord and by the right hon. Gentleman the Member for the University of Oxford with regard to myself 1545 —namely, that I have disdained to consider this subject. If we were about to enter into the consideration of the whole subject of the law of divorce at large it would be a most important subject for our careful attention, and I think that the Committee will do me the justice to remember that I stated that the principle of giving equal facility for divorce to the woman and the man was recognised, not only by the laws of France, but by laws anterior to the law of France. Was that disdaining the question, or treating it with contempt? It would, however, have been beyond my functions, and beyond what I had undertaken, to have entered into the consideration of that subject on the second reading of the Bill, because it did not come within the scope of that principle which I was commissioned to invite the House to accede to. I think that the person who has charge of this Bill ought to be treated with some consideration, and it is not just to impute to me an insensibility with regard to the great question of giving equal facilities of divorce to the woman and the man. I am perfectly aware of the importance of that subject, and is it fit or right to taunt me with insensibility or indifference with regard to it, because, having proposed to the House a limited field of inquiry, I decline to enter into the consideration of other points not yet embodied in any existing principle of the law of divorce in this country? I hope, therefore, that the Committee will do me the favour to distinguish between any feeling which I might entertain if the whole subject of the law of marriage were being entered into, and what I feel it my duty to do when the inquiry is limited as it is at present, and to believe that I am not actuated by any feeling of disdain or contempt for a principle which I admit under other circumstances would be entitled to the utmost consideration. The duty which we have now, however, to discharge is a limited one. It is merely to embody the law of divorce which at present exists, and I know of no private Bill ever having been granted which has embodied the principle which I am now blamed for refusing to discuss. If this Bill were once thrown aside, and the whole law of marriage and divorce made the subject of inquiry, then I should be the last man to limit the field of discussion, or to refuse to consider a state of law which inflicts injustice upon the woman most wrongfully and without cause, and which may be considered opprobrious and 1546 wicked. We are now, however, limited to the performance of that duty which this Bill imposes upon us—namely, to erect a new tribunal and to embody the principles of law which already exist. As regards the question of equal facility of divorce being given to both sexes I certainly think myself entitled to ask, how is it that some hon. Gentleman who, like the right hon. Member for the University of Oxford, or the right hon. Gentleman opposite, has been aware that injustice has been perpetrated year after year and century after century, has not brought the subject under the consideration of the House? Those hon. Gentlemen had, on the contrary, allowed her to remain in the position in which she was, and now, when the Government were taking some steps in her favour, they suddenly found out that in one particular point, which the measure did not touch, she is a perfect martyr. The subject, however, is one of the greatest importance, and this present Bill need not be the end-all of legislation upon the subject. By this Bill we shall create a tribunal which may hereafter have to I administer other laws made under happier auspices. I hope that some hon. Gentlemen will in a following Session perceive the inconsistency which has marked their conduct throughout this discussion. In what way do those hon. Gentlemen think that they have presented themselves to the country? Do they suppose that after having recorded on the Minutes of this House their intention of advocating in every way the principle of the indissolubility of marriage they will be listened to with credit when they come forward and move Amendments which not only recognise the principle of the dissolubility of marriage, but which propose to afford further facilities for obtaining divorces a vinculo matrimonii? Do they suppose that such proposals as they bring forward will be received by the people of England as coming from sincere advocates? No; such proposals cannot be sincere. An hon. Gentleman cannot be supposed to be sincere, nor will the people of England look upon him as sincere, who, after advocating the principle of indissolubility of marriage, brings forward Amendments based upon a diametrically opposite principle.
§ MR. GLADSTONEIf I, Sir, had been a mere spectator of this debate, and had heard the speech which the hon. and learned Attorney General has just delivered upon an Amendment to a clause of 1547 the Bill, and had noticed what a wide range he has taken, both in general discussion and in personal attack, and if I had been ignorant of all that has taken place in this House, with regard to this Bill, I should have thought that there was an intention to defeat the Bill by delay, and that that design was nurtured by the Attorney General. The hon. and learned Attorney General thinks himself entitled to charge hon. Members of this House, in so many words, not only with inconsistency—with which he has a perfect right to charge them—but with insincerity, in that they have brought forward and supported a proposition with which he says, they know well nobody can believe them to he sincere. Now, it appears to me, that my hon. and learned Friend the Attorney General himself, if he has not crossed the line, has trodden very close to the line, where it would have been the duty of the right hon. Gentleman who presides over the deliberations of the Committee to interrupt him, as a disorderly Member of Parliament who abuses the privilege of speech; for I say, it is not usual with hon. Members of this House to challenge the sincerity of an hon. Member, in reference to any proposition he may think it his duty to advance. Now, if I had the intention of defeating this Bill by delay, my hon. and learned Friend the Attorney General has given me the best handle in the world for taking that course. After the charges, not of inconsistency only, but of insincerity also, which have not only proceeded from his mouth, but gleamed from those eloquent eyes of his, which have been turned continuously on me for the last ten minutes, instead of being addressed to the Chairman, I should have been justified in entering on a personal defence of myself. But I shall do no such thing. I give my hon. and learned Friend all the benefit of all his imputations of inconsistency and insincerity. Let them go for what they are worth. I will not occupy the time of the Committee by replying to them. But this I shall tell my hon. and learned Friend, that those charges, multiply and reduplicate them as he may, will not stand between me and the performance of my duty, or go to absolve me from the obligation of canvassing and criticising a measure which has now, perhaps more than ever, assumed a position that renders it totally unfit to be submitted for discussion in this House. What are the statements of my hon. and learned Friend the Attorney General himself, 1548 and of my hon. and learned Friend the Lord Advocate? Are those statements really compatible with the course which Her Majesty's Government are pursuing? Can it be justified—I don't say out of the mouths of the opponents, but out of the mouths of the friends and champions, and out of the mouths of those who are responsible for the Bill. The Lord Advocate says, I have misinterpreted the reports on the Scotch divorces. On the contrary, I contend I have analysed them with the utmost care, to the extent to which the information goes. I have appealed to him for more information, but he has not had time to procure it. But, if you will refer to the 73rd page of the Divorce Commission, you will see that the operation of the law of Divorce in Scotland is, in the main, to make it a local law, and, almost, to confine it to Edinburgh and Leith and their immediate neighbourhood, and to some other great towns which are in easy communication with them. But that is a matter comparatively unimportant, except when we match it with other admissions made by my hon. and learned Friend the Lord Advocate. He has been fairly challenged as to the merits of the question now in issue, and what were the memorable words of the Lord Advocate? I think he said that the law of Scotland, which gives perfect parity of divorce to a woman, was well founded, both in principle and experience. He used, I think other pretty strong words on the subject. He said, he concurred in the principle of the Amendment of my hon. Friend the Member for West Surrey; and these admissions have been followed by the admissions of my hon. and learned Friend the Attorney General. The Attorney General distinguished between the advocates of the Bill and those who had the charge of it, and it appears from my hon. and learned Friend, that those who have the charge of the Bill are not the advocates of it. The Bill is pushed by him through this House as a ministerial duty. He receives it from the Cabinet, for whom he considers it his business to hew wood and draw water. [The ATTORNEY GENERAL was understood to say, "That is true."] It is true? Well, that is important. My hon. and learned Friend expounds to us the principles of this great measure of policy, and dilates, not only on history, but, also, on theology, and the Scripture arguments. He must always recollect, however, that he does not appear 1549 before us here, simply as an English Gentleman, speaking from his own breast and his own conscience, but as the organ and minister of commands issued to him from above: but, notwithstanding that, that is the principle which my hon. and learned Friend has laid down, he has, himself, however, entirely broken the shackles that surround him, for he has fairly given tongue on this Bill, and has told us that the English law of divorce is "opprobrious and wicked," that that law, to which he now asks us to give legislative expression, is "opprobrious and wicked," and places women in an inferior and unjust position. I may question the prudence and policy of the declaration which my hon. and learned Friend has made, in his capacity of Attorney General, but I must say, I think it does him honour as a man. My hon. and learned Friend says he is going to propose to us a Bill which is to leave women in an inferior and unjust position, and which is to give statutory form and fixity to the law of divorce, which is "opprobrious and wicked;" and my hon. and learned Friend the Lord Advocate, the other official and legal adviser of the Government says, the law of Scotland, which asserts a contrary principle, is well founded in principle and experience; but he invites us to pass a Bill ill founded in principle, and condemned by experience, and his reason for that is the fear that the measure should not pass during the present Session. Let us translate this matter into plain language. They demand of us to pass a bad Bill; for, if we attempt to make it a good Bill, it is impossible to pass it at all. Why, that is the original ground on which a difference of opinion arose with respect to this Bill. It is a total mistake to suppose that my right hon. Friend asserted the doctrine of the indissolubility of marriage. Some hon. Members may hold that doctrine, but there are many others who do no such thing; and I hold myself open to consider the legislative question of the dissolubility of marriage, and of the conditions on which it should be granted. But is that a reason that we should pass a Bill under the circumstances in which this is laid before us? My hon. and learned Friend the Attorney General wonders why he has been taunted so much for the course he has pursued with reference to this question, and he repays those taunts with interest. My hon. and learned Friend must' clearly observe the actual position of affairs. My noble Friend opposite (Lord J. 1550 Manners) proposed an Amendment which is conformable to the precedents of other laws, which Amendment he thought it his duty to submit to the House, and the principle of which has received the approbation of every hon. Gentleman who has spoken upon it. The hon. and learned Attorney General, however, says, "I cannot consider your Amendment, because this Bill is a mere and pure expression of the present legislative practice of the House of Lords." But does the hon. and learned Attorney General say that this is a case in which "an inch is as good as an ell," and that if, by an inch, you depart from the present law of divorce, in order to admit propositions which you view with favour, a man is to be found fault with, who wants to digress by two inches? After the Attorney General had, on the part of the Government, said, they would not discuss the proposition of my noble Friend (Lord John Manners), the Lord Advocate, on the other hand, in the frankest and clearest manner, proceeded to give his opinion upon it, and he, too, is in favour of the Amendment of my noble Frend, in principle. Why, then, is it not to be admitted into the Bill? I could understand your proposition if you were taking this imperfect, fluent, uncertain, and continually growing and altering, practice of the House of Lords, and arbitrarily founding a statute upon it, though that would be a bad ground for legislation. But you are not doing that: you are altering the law of divorce a vinculo; you are giving to it new chapters and new heads. My noble Friend (Lord J. Manners) asks you to give it another new chapter; and, again, I ask on what principle it is that the Government can ask the Committee to negative the proposition of my noble Friend? But I cannot pass by the remarkable admissions of the legal advisers of the Government. They admit that the principles upon which the Bill is fixed are founded in injustice and condemned by experience, that they leave the woman in an inferior and unjust condition, and that such a law is opprobrious and wicked. It is impossible to pass by those admissions without seeing that those who make them are not justified in asking the House to assent to a Bill so framed. It would be far better to wait until we can, with deliberation, deal with a subject of this vast and immeasurable importance, than now to proceed, with haste and precipitancy, to give our sanction to a measure with regard to which its own advocates make admissions 1551 more damning than any charge which can be brought by those who are opposed to it.
§ VISCOUNT PALMERSTON:My right hon. Friend who has just sat down has accused my hon. and learned Friend the Attorney General of dealing severe taunts on those to whom he is opposed. The right hon. Gentleman the Member for the University of Oxford, with that great kindness which distinguishes him, has dealt, as I think, and as he himself must feel, an undeserved taunt, not on his opponents, but on other parts of the House. The right hon. Gentleman has accused my hon. and learned Friend of being a hewer of wood and drawer of water. No doubt in the course of the arguments which have taken place on the present Bill, it has been necessary for my hon. and learned Friend—and ably has he acted up to the necessities of the case—to "hew" in one or two directions, and in so doing has cut most severely right and left; but it has been reserved for the right hon. Gentleman the Member for the University of Oxford to describe the persons on whom those cuts were inflicted as composed of that material of which he says my hon. and learned Friend is a hewer. Whether, as a drawer of water he has drawn tears of repentance from the eyes of those who have abandoned their opinions, it is not for me to say. This Amendment undoubtedly will be recommended to our adoption by the reflection that those who vote for it must have given or are giving a public, formal, and deliberate recantation of the principle which they have hitherto maintained of the indissolubility of marriage, because the object and direct effect of this Amendment are to extend to a greater range the principle of dissolubility, which the right hon. Gentleman the Member for the University of Oxford and others have denied. We shall certainly be disposed to look with favour upon an Amendment which draws into our camp, from the adverse camp, all those who have hitherto opposed the fundamental principle of this Bill. The right hon. Gentleman opposite, and some who have taken part in this debate, support this Amendment upon the broad principle that with regard to divorce there ought to be no difference between husband and wife. I cannot admit the extent of that principle, and I think, without explaining more particularly the grounds, no reasonable man who looks to the constitution of society and the results of marriage can fail 1552 to see that whatever may be the quality of the moral offence, the consequences of adultery are utterly different in the case of the woman. As far as regards the interests of society it is not true that the woman ought invariably to be placed on the same footing in this respect as the man. The Lord Advocate, with that national feeling which I trust every Scotchman will always cherish, and with that natural regard which is instilled into the mind in early youth for the institutions of his country, would have all distinctions between English and Scotch law abolished, by the extension to England of everything peculiarly belonging to Scotland, and that, I understand, is the opinion of some of those who sit on the other side of the House. Do they mean to say that the law of marriage is the same in the two countries? Do they mean to introduce into this country the extreme facility of contracting marriage which has been brought to light in a recent trial in Scotland, and formed part of the defence of one of the parties—namely, that the writing a letter to a woman by a man, or by a woman to a man, claiming the other as husband or wife, constitutes a marriage? They do not. Therefore it is quite preposterous to argue this question upon the ground that because there is a difference between the law of Scotland, and the law of England, that difference must be removed by adapting to England everything which may be found in the law of Scotland. If my Scotch friends will permit me to say it without offence, I would rather attain similarity in an opposite direction, by extending to Scotland the law of England; but I am well content to leave the laws as they are, except upon matters where common interests require that legislation should be uniform. The great objection to the Amendment proposed by the noble Lord is that it gives rise to great opportunities and means of collusion between the parties. I think it is evident that it would very much assist a husband and a wife who wished to get rid of each other by legal process, and it is obvious how much more easy that process would be under this Amendment than under the Bill as it now stands. One great argument of the right hon. Gentleman the Member for the University of Oxford is that we ought to make this Bill as perfect as possible—that we ought to correct every evil which may exist in the law of marriage. That is a stereotyped objection to every measure the opponents 1553 of which desire to prevent its passing. It is an old, standard, set-up form, for the purpose of objecting to any improvement to say that it does not carry out all the improvements of which the matter in hand is susceptible, and if we admit that to be a valid reason there is hardly any improvement in the law which ever can be made, because it always can be said that we have not done everything which might be done. It is the same argument which for years has delayed the improvement of the Ecclesiastical Courts. When measures with that object were brought before the House those who wished to perpetuate abuses said that they did not accomplish everything which it was desirable they should accomplish. I do not go so far as my hon. and learned Friend the Attorney General and others who have spoken in thinking that in regard to the dissolubility of marriage we ought to place the wife on the same footing as the husband in all and every respect, but I frankly admit there is some force in the argument which has been alleged in favour of the particular condition of the Amendment. I cannot but admit that the argument of the right hon. Gentleman has some force, that by the Bill, as it stands, marriage may be broken by the wife for a less violation of her rights than that which this Amendment would contemplate; and, although I think with the Attorney General, that it would be much better that the House should pass the Bill, adopting in it the law as it stands with trifling omissions, nevertheless, anxious as I am to promote the passing of the measure as it is, and balancing the merits against the evils of the Amendment, I am not disposed to press to extremity the objection which I have stated. I only protest against the concession on one point being made the ground for demanding other concessions more objectionable, and with that explanation I do not intend to divide the Committee.
§ MR. HENLEYsaid, that by accepting this Amendment the noble Lord repudiated the doctrine of the hon. and learned Attorney General that they were not to amend the Bill. The noble Lord admitted that they ought to take as good a measure as they could when they could not get a perfect one, and thereby conceded that the Committee should endeavour to amend the Bill as much as possible. This was an important concession. The local courts were another important concession, and neither 1554 of these objects was included in the Bill. The noble Lord had no right to make the charge general, that a majority of the opponents of the Bill were against the dissolubility of marriage, because many of them objected only to the conditions and form in which the Bill for divorce was presented. The noble Lord knew that they were only beginning to get into the difficulties of the question, and yet he asked the Committee to import into it the whole subject of Scotch marriages. He thought the noble Lord had exercised a wise discretion in accepting the Amendment, but regretted that he had not consented at once to place the wife in the same position as the husband. The vast inconvenience to a woman of having her home destroyed was a security that she would not abuse her power of applying for a divorce.
§ LORD JOHN RUSSELLI am glad that my noble Friend at the head of the Government has agreed to the proposal of the noble Lord the Member for North Leicestershire (Lord J. Manners), because I think that the ground which has been taken by the hon. and learned Attorney General, that we were doing no more than carrying into effect the existing law, having undoubedly failed, the Amendment of the noble Lord opposite is necessary for the improvement of this Bill. It was shown clearly enough by the noble Lord and by others that, in effect, if the Bill were to pass in its present shape you would impose upon the wife greater hardships than she may now sustain, because, instead of deserting his wife and living with a mistress at some distance, a profligate husband would have only to introduce the woman into his house in order to drive his wife away, thus placing her in a worse position than at present. But I should not have thought it necessary to rise now, my noble Friend having given way, if I had not believed that the tone adopted by some who have taken part in this debate called for a few remarks. I thought we were discussing one of the nearest and dearest relations of life—that on which not political events or the changes of Ministries, but the happiness of married life depends; but from the tone assumed by members of the Government I should have imagined that we were engaged in some party debate, in which all those paramount considerations which the subject of divorce naturally suggested were to be thrown aside in order that taunts might be cast at some hon. Gentlemen who are 1555 said to be inconsistent. I think that taunt in itself is of little value, because I have always understood that hon. Members of this House were quite at liberty to oppose the principle of any Bill, to declare upon the second reading that that principle was totally adverse to their opinions, and yet when a majority had affirmed it to endeavour in Committee to make the Bill as consonant with justice as it could be made. Upon the subject of the taunt, therefore, there is little to be said; but what I think ought not to be borne by this Committee is, that a mere taunt should be put in the place of all argument against the opposition. A noble Lord or a right hon. Gentleman proposes that marriage should be dissoluble in certain cases, and up gets some member or official of the Government and says, "Oh, but you were of opinion before that marriage should not be dissoluble in any case." What has that to do with the question? If a wife some years hence should be found to complain that she could not get a remedy, that the law was wrong and unjust, what answer would it be to her to say that the House of Commons could not agree to such an Amendment because it was proposed by those who had said or done something inconsistent with it upon some former occasion? We really ought to consider the importance of the subject before us, and not whether a taunt might be well or ill directed against an opponent. I think the hon. and learned Attorney General has a right to be heard when he says this Bill is placed in his hands, and he is asked to expound it to the House; but the Government ought to give greater weight and confidence to the hon. and learned Gentleman, considering his eminence as a lawyer, and the value of his opinion, and they ought not to ask him to support propositions which he declares to be wrong and unjust. I heard with alarm that this Bill was not to be an end-all of legislation on this subject. I am one of those, as I stated the other night, who are willing to come here and attend to this Bill, and who do not think it would be any excuse for a neglect of our duties to say, that we are in the middle of August; but, if we are to consider the Bill, let us do so fairly and fully; and let it not be said after this measure has passed, that it is intended to last for a year only, and that we may expect another Bill next Session. The subject is so important, solemn, and even sacred, that Parliament ought to deal with it in the most careful and deliberate manner 1556 and not allow fresh propositions to be brought forward year after year. It would be intolerable to say to a wife, "It is true you are unjustly treated, but wait a little, marriage will be put upon different conditions, and in a few years hence the law will enable you to obtain a divorce." The effect of that would be to shake the very foundations of married life, and I must say that the adoption of such a course ought not to be permitted to any Government whatever. Let the Government be strong or weak, it ought not to be allowed to tamper with the best interests of society by perpetually unsettling the law of marriage—a law which, above all others, demands the most sacred and inviolable fixity.
THE ATTORNEY GENERALsaid, that the principle of the Amendment having been frankly accepted, he wished dispassionately to call the attention of the noble Lord the Member for North Leicestershire to the very large proposition involved in his form of words, as compared with the authority from which he had derived it. In the book to which the noble Lord had referred the French law was stated thus:—"A wife may demand divorce by reason of the adultery of her husband, when he has kept his concubine in the common residence." It was stated in a note that the French law, though regarding the adultery of the husband in all cases as extremely reprehensible, yet distinguished where his infidelities were occasional and fugitive. The principle of the French law, therefore, was, that a wife should have divorce when she had been insulted in a manner that prevented the hope of reconciliation, by her husband bringing a mistress into the same house, and insisting upon keeping her there; whereas, the words adopted by the noble Lord opposite would include any occasional and fugitive act once committed in the common residence, without the insult offered to the wife of bringing the mistress into the house as a resident. He would suggest, therefore, that they had better adopt the language of the foreign Code referred to rather than the somewhat loose words of the noble Lord, and that the Amendment ought to run thus:— "Adultery committed by the husband with a mistress kept in the same house as the wife."
Amendment proposed to the proposed Amendment,—to leave out the words "in the conjugal residence," in order to add the words, "by the husband with a mistress 1557 kept by him in the same house with his wife."
§ MR. HENLEYsaid, he believed that the words proposed by the hon. and learned Attorney General would be wholly inoperative. In English society it would be hardly possible to find a single man who was sufficiently a villain to outrage all laws so as to bring him within the category laid down by the hon. and learned Gentleman. A man might commit adultery with the housemaid, the lady's maid, or any sort of maid, but that would not fall within the hon. and learned Gentleman's category of a mistress kept in the conjugal residence. He hoped the hon. and learned Gentleman would not attempt to fritter away to nothing that which the noble Lord (Viscount Palmerston) had agreed to on principle.
THE ATTORNEY GENERALsaid, he had not the least desire to evade any decision to which the Committee had arrived. All he wished to point out was the difference between an isolated act and habitual adultery. The principle of the law, as copied from the source to which he had referred, would be to give the wife a right to divorce for habitual adultery on her husband's part, committed with in the conjugal residence. As the right hon. Gentleman seemed to think that he (the Attorney General) wished to evade the decision of the Committee, he should with draw his Amendment.
§ MR. HENLEYsaid, that he did not intend to convey that the hon. and learned Gentleman sought to evade the decision of the Committee, but merely intended to point out what would be the effect of the Amendment he proposed. As to habitual adultery, how was that to be proved? It was difficult enough at present to prove a legally a single instance, and of course it would be still more difficult to prove a series of instances.
§ MR. CLAYsaid, he regretted that he felt bound to speak somewhat in opposition to the generous feeling of the Committee, which seemed to think that there should be a parity of punishment between the man and woman; but to justify that there must be a parity of crime, and that he could not admit to be the case. Those who had listened to the analysis of the right hon. Gentleman the Member for the University of Oxford must have been struck with the idea that, if the crime of adultery was more frequent among men than among women, that arose from the circumstance that with the former it was 1558 regarded as a lesser offence than by the latter; in fact, according to the French axiom, it was in one case a surprise of the senses, and in the other an error of the heart. In order to show the inequality of the crime in man and woman, he would put the case of a father who had a son and daughter both married. If the son complained to him of his wife's infidelity, the father would sympathize with him, and say, "You cannot continue to live with this woman; you cannot entrust the education of your daughters to her, and you must put her away." If his daughter came to him and complained of her husband's infidelity, the father would express his sorrow, but would ask whether the adultery had been combined with cruelty, or with offensive insults, or was it habitual? If he found it was merely a "surprise of the senses," he would recommend his daughter to bear her misery for a time, and to endeavour to bring back her husband for the sake of her own and her children's position. By this illustration the Committee would see how differently the crime is viewed in the two sexes. Divorce might be given to the wife for her husband's habitual adultery, but, for God's sake, let it not be granted for every passing error committed by the husband.
§ MR. GLADSTONEsaid, he thought the hon. Gentleman had only discharged his duty in stating his difference from what he believed to be the general current of opinion in the Committee. As, however, the hon. Gentleman had referred to him (Mr. Gladstone), perhaps he might be permitted to say a few words in answer. The hon. Gentleman had imagined the painful case of a father giving advice to his daughter as to the irregularities of her husband, and had said, would not the father recommend that those irregularities should be borne with if they were not of a deliberate and habitual character? That might be, but it had no bearing upon the present question. In how much better condition would the father be to give that advice if he could show to his daughter that there was a sheathed sword which the law put into her hands, and which she could at the proper moment draw from the scabbard? He would advise her to avoid resorting to the use of that weapon so long as there was any hope of a remedy without it. What they had to do was to provide a remedy upon which the woman could fall back in case of extremity, and they knew from all experience that recourse would 1559 not be had very frequently to that remedy. The knowledge of the existence of such a remedy would give the wife and her friends much influence over the husband, who would have the alternative offered him of a divorce "looming in the distance" in the event of a continuance of his irregularities. The hon. Gentleman said that the crime of adultery was unequal in man and woman, but so were other crimes, in the punishment of which the law did not consider sex. The offence of drunkenness was greater in a woman than in a man, but the difference was not considered in legislating upon the subject. The crime of homicide also was greater in a woman than in a man, but neither in human nor in Divine law was there any difference in the punishment recognised. In the New Testament, although adapted by the highest wisdom to the purposes of human life and human society, there was no specific distinction made between crime in man or in woman. Religion and experience were alike against such a distinction. The Attorney General, however, had now raised a new difficulty. The Amendment of the hon. and learned Gentleman was quite different from that of the noble Lord (Lord J. Manners), for to say that divorces should be granted to the wife only in cases of habitual adultery on the part of the husband was only saying that such divorces should never be granted at all. Habitual adultery of this sort would be of all offences the most difficult to prove. The term "mistress," too, was exceedingly ill-chosen, as it was unknown in the law in this sense. In old times it had an honest meaning, as what was now called "miss" was then called "mistress;" and even now in most ranks of society the term applied to the wife and not to the concubine. In the Roman law, the divorce was granted on proof of any specific act—not on proof of habitual adultery. The words were—Si quis in eâ domo in quâ cum uxore manet, contemnens eam, cum aliâ invenietur.
§ The Amendment to the proposed Amendment by leave withdrawn.
LORD JOHN MANNERSsaid, that as the Government had withdrawn their Amendment and accepted the original Amendment, he had nothing more to say than to deny that he was guilty of inconsistency in endeavouring to introduce Amendments into the Bill, having previously voted against the second reading. It would be rather a dangerous doctrine to lay down 1560 that those who voted against the second reading of a Bill were thereby precluded from endeavouring in Committee to obviate some of the injustice which it would entail.
§ MR. MALINSdeclared that he felt much embarrassment in the position in which he was placed, by the conduct of the Government. The aspect the debate had assumed that morning, had put the Committee in an entirely new position. Great complaints had been made that the opponents of the measure were offering it a factious opposition; but how stood the matter now? He denied that because they attempted to make certain clauses better, they were therefore to be supposed to agree to the principles of the Bill. As far as those principles were concerned, this ought to be a final measure—one not requiring an important and immediate Amendment, as it was highly injudicious to disturb domestic relations by fleeting and continuous legislation. This showed how necessary it was to wait for further information before they legislated on this subject. A document, which had been long before the other House, but which was only just placed in their hands, compiled by Mr. M'Queen, a gentleman well known in the profession, contained information of the highest importance, which they had not had time to read. He had been on the point, at a previous period of the debate, of rising to move that the Chairman leave the chair, in order that the Government might take advantage of the information afforded them by this discussion, and reserve the Bill for another Session. He would now submit the Motion, if he thought he should have any substantial support. It was evident to him that the hon. and learned Gentleman the Attorney General was performing a difficult and laborious task, and not one of love. It was clear he was fully alive to the imperfection of the Bill, as he could not tell the House that he was satisfied with it. Who was it, then, who wished to go on with the Bill? He denied that he abandoned the principles in advocating the Amendment—he was for in-dissolubility, but he was likewise for justice. He trusted that the noble Lord would see that if he proceeded with the Bill there was no knowing when the discussion would cease. Much had been done—susfsrestions of a valuable nature had been made—an important principle had been established, and he trusted that the noble Lord would even then consent to abandon the Bill for the present.
§ MR. STEUARTsaid, he thought the suggestion of the hon. and learned Member was well worthy of consideration. Important information on the subject—the Report as to foreign law on the subject—had not been presented to the House. And under such circumstances the House ought not to be asked to hurry the Bill through in a crude and unsatisfactory state. He should support the proposition to report progress if it were made. He also would beg to ask the learned Lord Advocate if it were not the law of Scotland, that an adulterer was punishable with death.
§ Original Question put, and agreed to.
§ SIR WILLIAM HEATHCOTEsaid, he wished to call the attention of the hon. and learned Attorney General to the effect of the clause as it at present stood. By the clause a wife was allowed to sue for a divorce on the ground of adultery with incest, or cruelty, or desertion, and then it also ran on in a disjunctive manner for bigamy. Now, according to that, a man might marry a second wife and be arrested on his way from the church, where bigamy could no doubt have been committed, but not adultery, and was it intended in that case that a woman should have the power of obtaining a divorce?
§ SIR WILLIAM HEATHCOTEsaid, he had been informed by an eminent ecclesiastical lawyer, that the act of bigamy was complete without cohabitation, but in order that the question should be fully discussed he would move the omission of the word "bigamy" from the clause.
§ Another Amendment proposed in the same line, to leave out the words "or of bigamy."
§ Question proposed, That the words "or of bigamy" stand part of the clause.
§ MR. AYRTONsuggested to the Attorney General to include bigamy among those offences which, coupled with adultery, entitled a woman to sue for a divorce. Bigamy was a statutable offence of which the essence was the intermarriage, and under the Statute there was no provision that cohabitation should be necessary to complete the offence.
§ MR. GLADSTONEsaid, that it appeared to him that they could hardly move an inch without receiving some new illustration of their total unfitness to manage this subject. The hon. and learned Attorney General had laid down that bigamy included cohabitation.
§ MR. GLADSTONEWhat, did his hon. and learned Friend mean that the term should have a sense in this Act different to that which it had according to the general law of the laud? Why, suppose a man were tried for bigamy before a Judge of Assize, did the Judge require proof of cohabitation? No; he only required proof of the first marriage and the second marriage, and the fact that the first wife was living at the time the second marriage was contracted. Now, by the Bill, power of granting divorces à mensâ was conferred upon the Judges of Assize, and were they in dealing with the subject of divorce to attach a different meaning to the word bigamy to which they attached in administering the general law? His noble Friend at the head of the Government had affected to say that a species of credit had been established in favour of the Government; in fact, that, as he had made a concession with regard to the Amendment of the noble Lord opposite, so the opponents of the Bill ought in their turn to concede a little to the Government. Now, he could not agree in that opinion, for he thought that, instead of his noble Friend having made a concession, he had received a great benefit from the noble Lord, for which the advocates of the Bill owed the noble Lord a debt of gratitude. Then, again, but for the hon. Gentleman the Member for the University (Sir W. Heathcote) the House might have been committed to a scandalous and gross blunder. He could not himself recollect such a piece of blundering workmanship, through which a woman would have the power of obtaining a divorce on the ground of bigamy where no adultery had been committed, while in other cases, even where adultery actually had been committed, she had no such power.
THE ATTORNEY GENERALsaid, it was true that it must be bigamy followed by cohabitation. The collocation of the words which came from the House of Lords is such, however, as to make them open to the observations which have been made upon them. He hoped his hon. and learned Friend the Member for Walling ford (Mr. Malins) was not about to treat the Committee to another speech. [Mr. MALINS: I shall not promise you.] He could hardly account for the exultation with which his hon. and learned Friend the Member for Wallingford flapped his 1563 wings at the admission which he (the Attorney General) had made. To return to the point under discussion, bigamy was an offence by the common law, and by the Statute 9 Geo. IV. bigamy was completed as an offence by the solemnization of the marriage, although it was not attended by cohabitation. The intention of the clause was to make bigamy a ground of divorce where it was followed by cohabitation.
§ MR. GLADSTONEThe Attorney General says the intention of the clause is to make bigamy followed by cohabitation a ground of divorce. But why "followed?" Why not also "preceded" by cohabitation? That interpretation given by my hon. and learned Friend will not do.
§ MR. HENLEYsaid, he thought they were being afforded a tolerable illustration of what they had been told over and over again, from the Treasury bench, whenever hon. Members asked the meaning of this part or that part of the Bill—namely, that it was so plain that he who ran might read. The Committee, he thought, ought to be obliged to his hon. Friend near him (Sir W. Heathcote) for having asked the simple question he had done. He (Mr. Henley) had not exactly caught the words proposed by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton), but probably, the hon. and learned Member would bring them up, and let them be read from the Chair.
THE ATTORNEY GENERALsaid, probably, these words would answer the purpose —"adultery and bigamy combined."
§ MR. AYRTONsaid, there would be this difficulty, if the Amendment first suggested by the Attorney General were adopted, that the adultery might be with one person, and the bigamy with another. The Amendment he (Mr. Ayrton) proposed, would run thus,— "be guilty of incestuous adultery, or of adultery coupled with bigamy," and then some words would have to be added to explain that, it was adultery with the person with whom the bigamy was committed. They should be strict in their wording of a clause which involved penal consequences.
§ SIR WILLIAM HEATHCOTEsaid, he would withdraw his Amendment.
§ Amendment, by leave, withdrawn.
THE ATTORNEY GENERALsaid, the difficulty might be surmounted if the words ran thus,—"incestuous adultery, or bigamy and adultery with the same person." Another Amendment proposed in the same line, after the word "bigamy," 1564 to insert the words "and adultery with the same person."
§ Question proposed, "That those words be there inserted."
§ MR. GLADSTONEsaid, that, with all due respect, he must submit that it would be worth while for the hon. and learned Attorney General to consider the words necessary to be inserted a little farther, and that "bigamy and adultery with the same person" would not do. They had advanced thus far, that they had now got this portion of the Bill before them for discussion in an intelligible and grammatical shape, and that, in his opinion, was a great matter. By this Bill, however, they appeared to constitute adultery a criminal offence—in fact, to make it a misdemeanor. Observe what would happen. A married man, who had committed the combined crime of adultery and bigamy, gave his wife a title to present a petition to the Court, praying for a divorce. She presented that petition and obtained that divorce, and the Court, exercising the discretion reposed in it, imposed, as it would be its duty to do, a heavy fine on the adulterer. The adulterous husband would then have to undergo the punishment of a fine, not only for his adultery, but for his adultery together with his bigamy, and his bigamy would constitute a portion of the offence. Now he (Mr. Gladstone) wanted to be sure what would be the effect of that state of the law on the husband's liability to answer for bigamy as a felony under the statute which made bigamy felonious?
THE ATTORNEY GENERALsaid, the only fine imposed by the Bill arose under the petition presented by the husband; but the case they were now considering was the petition presented by the wife. There was no fine where the wife was the complainant, and the husband the respondent; but if it were so, the infliction of a fine would not preclude an indictment for the felony.
§ MR. GLADSTONEsaid, he was not before aware that the Bill contained another case of inequality so gross between the husband and wife, as that the man who corrupted another man's wife was to be subjected to a fine, while the husband who was guilty of the enormous offences stated in the clause under consideration, was to be subject to no such fine, but merely to divorce. He should, certainly, take another opportunity of raising that question before the Committee.
MR. NAPIERsaid, that the effect of the clause would be, that a charge of bigamy 1565 which was one of felony, would be tried by the Court in the first instance, collaterally, and without a jury.
§ MR. MALINSobserved that he thought that the case of adultery with one woman and bigamy with another ought not to be excluded.
§ MR. HENLEYremarked, that he thought that the hon. and learned Attorney General should take time to consider the words. It was a matter which required considerable attention, as a man might be first tried, under this Act, for adultery and bigamy, and then, under an indictment, for bigamy alone; so that he would be tried twice for the same offence.
§ VISCOUNT PALMERSTONsaid, that he could not give way to the appeals made to him to abandon the Bill, and it would be brought on again the first thing in the evening.
§ House resumed. Committee report progress; to sit again this day, at Six o'clock.