DIVORCE AND MATRIMONIAL CAUSES BILL.—COMMITTEE. (Hansard, 13 August 1857)

THE ATTORNEY GENERAL
said, that on consideration he thought it would be better that the words should run, "bigamy with adultery with the same person."

§ MR. GLADSTONE
said, he must express a hope that the hon. and learned Gentleman would explain what was the intention of the House of Lords in this clause. Was it meant to give a title to divorce for bigamy and adultery, though they were committed with different parties, or was it meant to give a title to divorce only in cases where bigamy and adultery were with the same person.

§ SIR JOHN PAKINGTON
said, he thought there was a great practical difficulty in mixing up the question of bigamy with adultery, as the former offence was well known to and punishable by the law. He would therefore suggest the omission of the word "bigamy" from the clause.

THE ATTORNEY GENERAL
said, that in a case which had come before the House of Lords, a divorce was granted for adultery with a certain person, followed by bigamy. Accordingly, when their Lordships came to settle this clause, bigamy was inserted as being a ground justifying the granting of a divorce to an injured wife. The House of Lords sent down the Bill with that word alone in the clause, plainly meaning that it should be bigamy consummated, that was, bigamy followed by adultery with the person with whom it had been committed. A doubt having arisen as to whether the words in the clause were sufficient to express this meaning, the Committee that morning addressed itself to the introduction of words which should express the meaning more accurately. Some difficulty was occasioned by his hastily proposing the words "adultery and bigamy." An hon. and learned Gentleman immediately suggested that there might be adultery with one person, and bigamy with another. It did not at the moment suggest itself to 1570 him to propose the words "adultery with bigamy," and he therefore moved those which were now in the hands of the Chairman. Since then it had occurred to him that the words "bigamy and adultery" would meet the case. He should prefer "adultery with bigamy," but it was necessary to move the words in that order, because the word "bigamy" in the clause had been passed. If the Amendment were allowed to be withdrawn he should propose the insertion of those words, which would entirely remove the difficulty started by the hon. Baronet the Member for Oxford University.

§ MR. GLADSTONE
said, he had to complain that the hon. and learned Attorney General had not answered his question. The embarrassment arising from the want of time was shown by the fact that the hasty admission of words that morning had compelled his hon. and learned Friend to suggest the adoption in this clause of words less clear than he thought it desirable to use.

§ MR. PULLER
remarked, that he thought it was unreasonable of the right hon. Gentleman the Member for the University of Oxford to ask the Attorney General what were the intentions of the House of Lords. All that that hon. and learned Gentleman could be expected to state was what were the intentions of the Government. To his mind, the question whether the adultery and bigamy were committed with the same person, or with two different ones, was irrelevant. The Committee was, a few lines afterwards, invited to give the wife a divorce in case of desertion, and in his opinion bigamy, with whomsoever committed, was such a decisive proof of the intention of the husband to desert his wife and take up with another woman, that it ought to be a ground for a divorce.

§ MR. HENLEY
said, he was ready to admit that the hon. and learned Attorney General could not be expected to explain what were the intentions of the House of Lords upon this matter, but he wished to ask the hon. Member for Hertford shire (Mr. Puller) whether, sitting as he did immediately behind the hon. and learned Gentleman, he had been able to discover what had been his mind upon this subject during the last three or four hours? Since 1571 four o'clock the Attorney General had considered this matter, and he now suggested general words instead of such as would apply only to a particular case. Every step that they took with regard to this Bill only increased their difficulty, and led them deeper into the mire. The hon. and learned Gentleman had not yet answered the question as to what would be the effect of a verdict in this court of divorce upon a subsequent indictment for bigamy. That was an important point, and he trusted they would yet have the benefit of his opinion upon it.

§ MR. GLADSTONE
said, he did not think that his question was open to the remarks of the hon. Member for Hertford shire (Mr. Puller). It would, of course, be absurd to suppose that his hon. and learned Friend, from the position which he held as Attorney General, would be able to inform the House as to what was the intention of the House of Lords; but in the present instance, he would beg the Committee to recollect that after all this was not a clause forced upon the Government by the House of Lords; for that all the Amendments to the Bill in that House were finally determined according to the wishes of the Government. Now, his hon. and learned Friend (the Attorney General) had made an Amendment on the clause, and he (Mr. Gladstone) must admit he was most anxious to know what would be the exact judicial construction of that Amendment. At the same time he thought his hon. Friend the Member for Hertfordshire (Mr. Puller) had stated the case with perfect fairness when he said that the question substantially before them was, whether the bigamy was necessarily to be committed with the same person as the adultery, or whether the case referred to in the clause extended to bigamy perpetrated with another person different from the adulterer. He confessed that he thought bigamy with adultery to amount to such an aggravation of the offence as justly to entitle the wife to the relief of divorce.

THE ATTORNEY GENERAL
said, he had answered the question of his right hon. Friend several times already.

§ MR. GLADSTONE
No; pardon m. What I want to know is, whether the Government proposes to give the wife a title to divorce in case of bigamy and adultery—whether the adultery be committed with the same person as the bigamy or with any other person.

THE ATTORNEY GENERAL
said, 1572 that both cases would, he thought, be met by the words "bigamy with adultery."

§ LORD JOHN RUSSELL
said, that they had been informed that, with the exception of the Amendment of the noble Lord opposite (Lord J. Manners), they were proceeding upon the assumption of not altering any principle of law as laid down in private Acts of Parliament; and if that were so, then it was necessary to gather from the cases which had been decided by Parliament what was the real state of the existing law upon the subject. Now, he believed that among the few cases in which relief had been granted to a wife, there was not a case in which a divorce had been granted on the prayer of the wife for adultery and bigamy, where the adultery bad been committed with one person and the bigamy with other persons. If there were such a case, then great care ought to be taken not to deprive the wife of a remedy which at present she could obtain, by making it necessary that the bigamy and adultery should be with the same person. This, however, seemed to him to be the effect of the clause.

THE ATTORNEY GENERAL
said, that in the case referred to by the noble Lord, the bigamy had been completed in the sense in which he had explained it to be intended in the clause. He believed that the words he proposed to introduce would meet both classes of cases—those in which the bigamy and adultery were committed with the same person, and those in which the adultery was committed with one person and the bigamy with another.

MR. NAPIER
said, he could not assent to the Amendment without being better satisfied as to its exact effect. He could not see why a distinction should be made between bigamy and other felonies. Suppose a husband to be transported for life, did not that amount to a complete desertion of his wife? Again, there was no provision in the Bill providing for the trial of these offences criminally. The whole proceeding was civil, and there the matter was allowed to rest. Besides which, under the Bill, as it stood, a party might be tried for an offence in his absence, and without the intervention of a jury. Now, those were anomalies which ought to be remedied. Lord Thurlow laid it down in one of the first applications that came before the House of Lords for a divorce on the part of the wife, "That in all such causes their Lordships ought to govern their conduct by the particular circumstances of 1573 each individual case." Well, when they departed from that rule it was his (Mr. Napier's) belief that they ought to provide specific redress for every case that might arise, otherwise they would be depriving the wife of remedies she at present enjoyed. As he had said he could not give his consent to the Amendment without receiving a clear explanation as to the reasons why it was introduced, and as to the form of procedure by which it would be worked out.

LORD JOHN MANNERS
said, he thought the observations of his hon. and learned Friend the Member for the University of Dublin (Mr. Napier) were well worthy of consideration. Now, he wished to direct the attention of the Committee to a paragraph appearing at page 16 of the Report of the Commission—namely, "that in the case of innocent bigamy, or the like, it might be proper to give power to the wife to institute a suit for divorce a vinculo; but, as a general rule, her remedy should be left to the Legislature, and to the Legislature alone." Well, what interpretation were the Government about to put upon that recommendation of the Commission? Was it the intention of the Government to restrict the redress of the wife to the cases specified in the clause under discussion, or was it intended to permit wives when insulted and aggravated beyond what was provided for by the clause to come to Parliament for redress, and that Parliament was to be at liberty to decide each case on its merits. If so, what became of their cry that they were about to put an end to the scandals of the present system. The opinion of Lord Cottenham and of the House of Lords in 1840, as delivered in the case of Mrs. Battersby, was, that the transportation of a husband for felony, coupled with adultery on his part, was a sufficient ground for divorce on the part of the wife. At all events that was Mr. M'Queen's interpretation of Lord Cottenham's views, and he would beg to ask whether the Government assented to that opinion.

§ SIR DENHAM NORREYS
said, he could not but compassionate the position of the hon. and learned Attorney General, the only use made of whom by the Government was to throw him over when it suited them. Now, he did not profess to understand the Bill in the slightest degree, but he really could not conceive why there should be so much time spent in discussing a point, which was clear to all but legal minds. It struck him that if a husband 1574 was guilty of bigamy, whether he consummated the second marriage or not, he had sufficiently insulted his wife to justify her in looking for a divorce. A husband might commit a rape, and yet the wife need not necessarily be entitled to a divorce; but not so in the case of bigamy. And for this reason—a man might commit rape without any vicious intention. He meant to say circumstances might occur in which a man was induced to commit rape without any premeditation, whereas bigamy was always premeditated. There was no parallel at all between the two cases.

§ MR. GLADSTONE
said, he would ask the Committee whether the speech they had just heard did not afford a very apt illustration of the anomalous position in which they were placed with regard to some of the provisions of this Bill. Here was a most intelligent Member of Parliament expressing his opinion with a candour which they could not but admire; and in what way did he try to clear up the question before the House? He seemed to be possessed with the spirit of a Draco when he spoke on the subject of bigamy, but when he affected a transition to that of rape he exhibited all the tenderness of a woman or an infant. He seemed to think that bigamy was an offence infinitely more atrocious than rape, notwithstanding the marked distinction which our law had ever made between them; for he would remind the hon. Baronet that the law dealt with rape as a capital offence, but had never done so with bigamy. The hon. Member whose mind was evidently in a state of mature preparation for the discussion of this great and important subject, was surprised that anybody should have the least difficulty in coming to a conclusion upon the matter before the House. The hon. Member gave an admirable proof of the exact preparation of mind with which, on the 13th of August, a Member of Parliament could come to the consideration of this question. It was not necessary to discuss the relative guilt of the offences that might be committed by a husband; but the point was, what other criminal offences beyond those stated in the clause ought to be included as giving a wife a title to a divorce against her husband? If one kind of felony superadded to adultery was to constitute a title on the part of the wife to divorce, why should not all other felonies accompanied with adultery give her the same title? Then he would say, irrespective of the question whether all 1575 felonies, when superadded to ought to give a title to a wife for a divorce, there was another question whether that particular class of felonies which had a certain analogy to the crime of bigamy ought not to give that title to a wife, even though the Legislature refused to give it for all felonies. And therein particularly came the felony of rape, and another class of felonies of the highest order to which it was not necessary to advert by name, but which would be generally understood by the Committee. It appeared to him that, as regarded that particular class of felonies which constituted capital offences against the marriage contract, it was in comprehensible that they were not included in the clause under consideration as giving the wife a title to divorce. He did not think they could pass this clause without having those questions distinctly raised.

§ VISCOUNT PALMERSTON
said, he thought that the question of his right hon. Friend had been answered already by his hon. and learned Friend the Attorney General, who pointed out that bigamy was an offence particularly directed against the wife, inasmuch as it was an attempt to contract a fresh engagement in violation of a still existing one between the husband and wife, whereas other felonies were directed: against society in general. That seemed to him (Viscount Palmerston) to be a substantial distinction, and one on which the Committee might fairly assent to the Amendment of his hon. and learned Friend.

§ MR. HENLEY
said, he had already one question before the learned Attorney General, which he had not as yet been good enough to answer; nevertheless he wished to put another question to the hon. and learned Gentleman. In those cases which had been decided in the House of Lords, and upon which, as they had been told, the existing law was founded, he wished to know whether previous convictions for bigamy had taken place? For if so, he should contend that the clause ought to be shaped in accordance with what was said to be the law founded on those cases; and that the matter should not stand over for trial until after the wife had proceeded in a civil court.

THE ATTORNEY GENERAL
said, the right hon. Gentleman having had some experience in criminal proceedings must be well aware, that supposing the question of bigamy came before the civil tribunal for the purpose of divorce, the determination: of that tribunal, or the evidence taken 1576 in order to arrive at that determination, would not be looked at for one moment in a court of criminal judicature. He would take that opportunity of saying, without meaning to give offence, that it was scarcely fair to put questions to him, not for the purpose of eliciting information, but for the purpose of founding some other argument upon his answers.

§ MR. HENLEY
said, the hon. and learned Gentleman had not answered his second question, and at the same time let him observe, that although, as he was quite aware, evidence before a civil tribunal was not available for a criminal proceeding, still a jury would be very likely to be prejudiced by the fact of such a trial having gone against a man.

§ MR. BARROW
said the phrase bigamy with adultery was rather ambiguous. To bring out the meaning of the clause more clearly it should run "adultery coupled with bigamy." He thought that adultery when coupled with bigamy, even if it was not committed with the same person, was a ground of divorce by a wife.

LORD JOHN MANNERS
said, he must beg to reiterate his question, and to ask the Attorney General whether in Battersby's case, in the House of Lords, felony was proved, and whether it would be permitted to a wife to seek a divorce in case of felony followed by transportation? The noble Lord (Viscount Palmerston) said that bigamy was a felony which implied desertion by a husband; but in other felonies there was desertion, which, though not voluntary, was more certain. Was adultery followed by felony, followed by transportation or imprisonment, and so by desertion, to be a ground of divorce for a wife to sue for a divorce.

MR. LYGON
said, that if they took the only six cases mentioned in the reports in, which divorces were applied for by wives against their husbands, they would find that, although adultery by itself was not considered sufficient to entitle the applicants to a remedy, yet adultery coupled with any other offence was regarded as a valid ground of divorce. The Committee had decided that there should be a distinction between the two sexes, but he thought, nevertheless, that adultery combined with I other aggravating circumstances should entitle a wife to a divorce.

§ MR. AYRTON
said, he wished to make a suggestion to the Committee. They were now considering what were to be the consequences of adultery coupled with a 1577 particular offence, but when they arrived at the next line, which provided that adultery coupled with unjustifiable desertion should be a sufficient ground of divorce, they would have to consider the more general question of adultery combined with such a class of acts as caused a permanent or prolonged separation between husband and wife. He suggested, therefore, in order to enable the Committee to get on with the Bill, that the Amendment of the hon. and learned Attorney General relative to adultery with bigamy should be agreed to—supposing they concurred in the proposition, which, for his own part, he deemed a doubtful one, that the bigamy might be committed with one woman and the adultery with another—and that they should discuss the other questions which had been raised in connection with the subsequent part of the clause.

§ MR. GLADSTONE
said, he thought the hon. and learned Gentleman had omitted to advert to one very important point, raised and discussed principally on the other side of the House, and without the consideration of which they could not pass even the limited portion of the clause that related to bigamy. He had heard no answer vouchsafed to the question of the right hon. Gentleman the Member for Oxfordshire (Mr. Henley), whether in the case of a petition for divorce, where the allegation was bigamy with adultery, it was or was not to mean exclusively bigamy which had already been proved in a court of justice, subject to all the forms and safeguards by which the liberty of Englishmen was defended. If they did not interpose that condition, if the felonious act of bigamy was not proved in a criminal court before it came to be put in issue in the Court of Divorce and Matrimonial Causes, they would inflict great injustice upon the party, because, although it might not be competent to produce in evidence the fact of divorce for adultery combined with bigamy, yet the knowledge, which they could not possibly shut out, that he had been divorced for adultery with bigamy would unduly prejudice him in a court of justice. It was to be hoped that the Committee would not be ready to affirm the proposition that bigamy with adultery should be a valid ground of divorce until they knew whether proper provision was to be made for ascertaining that the proof of bigamy should be full and adequate. He wished to refer for a moment to another point. The noble Lord at the head of the Government had 1578 given him a sort of meagre answer to the question why other felonies were not included along with bigamy. Bigamy, replied the noble Lord, was the only felony that necessarily implied desertion. If that were true it would still be most inadequate; but it happened not to be true, because there were other felonies that implied desertion, and because bigamy did not necessarily imply desertion. A man who contracted a bigamous marriage might not intend, and might not de facto desert his first wife, but, on the contrary, might continue to cohabit with her, and only pay occasional visits to the unfortunate person whom he had deluded into an illegal marriage. But the noble Lord did not take the slightest notice of the question put, not with respect to felonies universally, but with regard to that particular class of felonies which imported capital offences against the marriage contract, especially the offence of rape and that other offence which they were unwilling, as long as it was not necessary, to name in that House. If the Committee had no further explanation of the views of the Government than what they had succeeded hitherto in extracting, directly the word "bigamy" had been passed he would proceed to raise a question with respect to other descriptions of offences.

THE SOLICITOR GENERAL
said, he understood the right hon. Gentleman the Member for Oxfordshire to say that it would be extremely unfair to prejudice a man by an inadequate and an incidental inquiry in the divorce court, he being subsequently liable to be tried for the felony of bigamy. That was a hardship which was not only perfectly well known to the law, but which might and actually did frequently occur. Take the case of action for libel, the libel being an accusation of felony, and the plea or justification that the plaintiff had really committed the offence. The defence would be set forth as precisely as if it were an indictment for felony, so that whatever way the verdict might go the plaintiff would really be indicted for a felonious act.

§ MR. HENLEY
observed that the hon. and learned Solicitor General had omitted one important fact in the case he had put. The hon. and learned Gentleman had cited the case of a man who chose to commence proceedings against another for libel, and the defendant justified by setting out proof of a felony committed by the plaintiff; but in that case the party complaining brought the inconvenience upon himself, and there was a law maxim that volenti non fit injuria. 1579 But in the cases which would arise under the Amendment the proceedings would be against a man who was not a willing party to them. The hon. and learned Gentleman had not answered one part of the question, whether or not the House of Lords did try the question of bigamy in the case of Mrs. Hall and in another case, or whether there had been a previous conviction.

THE ATTORNEY GENERAL
said, that question could not be answered without a minute investigation of the Journals of the House of Lords to ascertain whether the record of the previous conviction was tendered and received in evidence. He hoped the Committee would allow the words to stand as they were, for it would be impossible to expect women to seek for divorces if they were required, as a preliminary, to prosecute and to convict their husbands of bigamy.

MR. NAPIER
said, he would also beg to remind the Committee that there was a further answer to the case put by the hon. and learned Solicitor General, and that was that the case he put must be tried by a jury; but in the case under the Bill it could not be tried by a jury, and you had what was unknown to the law, a felony tried without a jury. Then, again, the word "bigamy" was not known to the law as necessarily implying a felonious offence, for according to the definition of Lord Coke, it was said to mean marrying two wives in succession, or marrying a widow. That showed how loosely they were dealing with this important question, and if the words proposed were adopted, they would make the clause clumsy, inconsistent, and, he believed, inoperative.

§ SIR JAMES GRAHAM
said, he was sorry to multiply objections, but he must state one difficulty which occurred to him. The right hon. Gentleman who had just sat down said that bigamy was not known to the common law as a felonious offence. If that were so—if the word "bigamy" was not secundum artem, and was not known to the law, it appeared to him that they were involved in a great scrape, for that word was the only word of the Amendment which stood part of the clause at present. He thought great absurdity, to use the mildest term, would occur if the words proposed should be adopted. He understood the proposition to be that a wife might apply for a divorce to the new tribunal alleging on the part of her husband adultery with bigamy. The Court might be 1580 satisfied that the two crimes had been committed, and the marriage would be dissolved and never could be renewed. If he were not much mistaken, the man whose marriage had been dissolved, because a competent tribunal had declared him guilty of adultery and bigamy, might afterwards be indicted and tried at the assizes, and the jury might return a verdict of not guilty. There would then be the gross absurdity that a marriage had been dissolved upon the ground of bigamy which a jury had decided he had not committed. Unless he should receive some better explanation upon that point than had yet been given be should vote against the Amendment.

THE ATTORNEY GENERAL
said, the word bigamy was perfectly well known to the law as a description of an offence, even if it did not actually occur in an indictment. With respect to the question of the right hon. Baronet, he could only say that in case of any difficulty it would be competent for the Court to suspend the proceedings, and to direct a prosecution against the party accused of bigamy, and in that way make the criminal proceeding subservient to the civil.

§ MR. GLADSTONE
In what part of the Bill is that power to be found?

THE ATTORNEY GENERAL
There was no need for a provision to that effect in the Bill, as it was a power necessarily inherent in the Court. Every Court had power to suspend proceedings and to direct an indictment.

LORD JOHN MANNERS
said, he should wish to know whether the case was really as the hon. and learned Gentleman had stated. Could a Court, without any specific words in the Act of Parliament constituting it, take upon itself to direct the Attorney General to prosecute a man and to stay proceedings until that prosecution was decided?

§ SIR GEORGE GREY
said, that his hon. and learned Friend the Attorney General had stated his view of the law, and the question was put by the noble Lord to the other gentlemen of the Long Robe; no one rose to answer, and yet his right hon. Friend (Mr. Gladstone) complained that the Attorney General had not given an answer.

§ MR. GLADSTONE
hoped that some answer would be given to the question. He would appeal as it were in formâ pauperis to the right hon. Member for Dublin University for information. Did he believe that in the case of a man whose wife pro- 1581 against him in the Matrimonial Causes Court for adultery coupled with bigamy, the Court could direct an indictment without any special words to that effect appearing in the Act.

MR. NAPIER
replied, that any Court where a criminal offence was shown to have been committed might direct the evidence to be laid before the Attorney General.

§ MR. MALINS
said, that if a criminal prosecution were going on the civil Court might suspend its proceedings, but it was not within the power of any Court, for the purposes of a particular suit, to direct a prosecution. It might direct the papers to be laid before the Attorney General.

MR. NAPIER
thought it would be unfair, if it was intended that there should be a prosecution for bigamy, to start it with the prejudice against the accused of the prosecution having been directed by the civil Court.

§ MR. ROLT
said, he was of opinion it was not in the power of the Court to suspend the prosecution, unless in the case of any evidence actually affecting the ends of justice which it had to administer. If a question arose the solution of which was to depend upon the question of felony, he apprehended it was out of the province of the Court to order the papers in question to be laid before the Attorney General, for the purpose of inquiring whether the felony was or was not committed. In a collateral question, he apprehended that the Court had no jurisdiction to set the Attorney General in motion; and the Attorney General would pay no attention whatever to a recommendation made by the Court in such case. Undoubtedly when any offence had been committed against the Court, or any offence which would tend to divert the practice and procedure of the Court from the ends of justice which it had to administer, or, still farther, any offence against any persons or property over whom the Court had any jurisdiction, it would be within the jurisdiction of that Court to direct the necessary documents to be laid before the Attorney General.

§ THE LORD ADVOCATE
said, it was certainly the practice of the Scotch Courts, if anything came out in a case which ought to be the subject of a criminal prosecution, to draw the attention of the Lord Advocate to it. With regard to the point under discussion, nothing was more common than to see a civil Court trying a question which might be made the subject of a criminal indictment.

§ MR. PULLER
said, he thought that it was impossible to attempt to provide for every case which might arise without running the risk of doing injustice to the husband or the wife. Something ought to be left to the discretion of the Court.

§ MR. WIGRAM
remarked that the clause should be so framed as that there should be a previous conviction for bigamy before the prayer of a petition could be granted for dissolution of marriage. He would suggest that the words "evidence by a conviction of the offence" should be added after the word "bigamy."

THE ATTORNEY GENERAL
said, that if a married man went to a foreign country and married another woman, the effect of such an Amendment would be to deny the wife in this country the power of being relieved from the marriage. Impediments would be thrown around the wife which would render her situation so difficult that she would be unable to obtain the benefit of the provision if it should be necessary to establish bigamy by a criminal sentence.

MR. NAPIER
said, that the case of marrying a woman and going away with her came within the category of adultery and desertion.

§ MR. MALINS
said, that, as the clause stood, it was lawful for a wife to proceed for a divorce on the ground that her husband had been guilty of bigamy. Now, bigamy was a felony, and he apprehended that this Court, not being a criminal Court, could not try this. If a petition were presented to the Court of Chancery to do a certain thing on the ground that a party had been guilty of felony, the Court would not try that. If a party came to this Court asking for a divorce on the ground of bigamy, the proper course to be pursued by the Court, acting on the same analogy, would be to insist that the fact of this offence having been committed should be proved by the record of the conviction. That being so, he thought that it was unnecessary to introduce the words proposed by the hon. Gentleman the Member for Cambridge University (Mr. Wigram) because he thought that, as the clause stood, the Court could not grant a divorce upon the ground of bigamy without the record of a previous conviction being put in. He believed that no Member of the bar would controvert this. He might remark, however, that the word "bigamy" was not a proper one to use, because it was a word 1583 not known to either of the statutes which made remarriage during the life of a husband or wife a felony, and one which would not be held to be a sufficient description of the offence in the indictment.

§ MR. BUTT
said, that if the proposition of the hon. Member were correct, there could be no objection to saying, as the hon. Gentleman the Member for Cambridge University proposed, that the Court should not proceed to grant a divorce on the ground of bigamy without proof of a previous conviction. But the fact was that this was not so. Any one who was acquainted with the proceedings in Courts of common law, must know that nothing could be more common than for such a Court to try criminal questions incidentally arising in the course of a civil proceeding; as, for instance, if a newspaper charged the hon. and learned Member for Wallingford with bigamy, and he brought an action for libel, and the defendant pleaded "justification," the Court would at once try the truth of that issue. So it was the case when actions were brought upon bills of exchange where the plea was forgery; the Court would at once inquire into the truth of that issue. In no such case, however, would the Court suspend its proceedings until they had directed an indictment to be preferred and that was tried, as had been suggested by the hon. and learned Attorney General. If this Bill were passed three Judges might, without a jury find a man guilty of bigamy, and upon that ground a sentence of divorce, for the next clause only rendered the verdict of a jury necessary upon the fact of adultery. He objected to that, and thought that the foundation for the exercise of this jurisdiction should be a previous conviction in a criminal Court. They were told that this Bill was to incorporate the present practice of the House of Lords. But he believed they would only grant a divorce, if at all, in such a case as that under discussion on the production of a record of a conviction in a criminal Court. If no other member of the Committee did so, he would move the insertion of words in the clause defining the word "bigamy;" making it only apply to a man who married another woman during the lifetime of his wife, and rendering it necessary in order to obtain a divorce by the wife on such grounds that the record of the conviction in a criminal Court should be produced in support of the petition for divorce.

§ MR. M'MAHON
said, he thought the 1584 clause required amendment, and consequently was induced to support the suggestion of the hon. Member for Cambridge University (Mr. Wigram).

§ MR. GLADSTONE
said, that it was clear that the Committee had agreed to the adoption of a word which in law had no meaning at all, and it was, therefore, most necessary to insert explanatory words defining precisely what the offence of bigamy was.

§ MR. BUTT
said, that he was afraid that having passed it they could not then get rid of the word "bigamy," although it made the Bill stark staring nonsense; but he would propose to add to it these words, "by feloniously intermarrying with any other woman." They need not say "in the lifetime of his wife," because she would be the petitioner.

§ MR. M'MAHON
said, he thought these words were unnecessary. The Amendment of the hon. Member for Cambridge University (Mr. Wigram), namely, "bigamy evidenced by conviction," was sufficient, because conviction could take place only for the criminal offence under the statute.

§ MR. MALINS
said, he begged to refer to a passage from Burn's Justice of the Peace, which defined bigamy to be marrying two successive wives, and polygamy to be married to more than one wife at the same time, He would suggest that as in the case of incestuous adultery there was a proviso explaining the meaning of the word "incestuous," it would be advisable to add a similar proviso defining the offence of bigamy.

THE ATTORNEY GENERAL
remarked that he would not object to the introduction of the words proposed by the hon. Member for Youghal (Mr. Butt) which were perfectly harmless and, he might add, perfectly unnecessary.

§ MR. GLADSTONE
said, he thought this was the proper time to raise the question whether there were any other felonies which ought to be placed on the same footing with adultery, as giving the right of divorce to the wife. There were other offences besides bigamy which so much outraged the marriage tie as to entitle the wife to a divorce on the ground of their being committed. There was, for example, rape, and a certain class of other offences which all would admit ought to be included in the same category with bigamy.

THE ATTORNEY GENERAL
intimated that he would not object to the specification of the offences referred to.

§ MR. GLADSTONE
said, he would, in that case, not detain the House with any further observations, but would propose the insertion of the words "or of rape with adultery." He had inadvertently, it appeared, committed a slight blunder. The Amendment he proposed was the insertion of the words "or of rape."
The words "or of rape" were then inserted in the clause, as giving the wife a right to divorce, as were also, on the Motion of Lord Lovaine, a certain other class of offences.

§ MR. WIGRAM
said, he should now propose to incorporate words in the clause, so as to necessitate the act of bigamy, rape, or other offence being proved by a conviction.
Amendment proposed, in page 7, line 7, to insert the words "such bigamy, rape, or other offence as aforesaid, being proved by conviction."

THE ATTORNEY GENERAL
said, he could not agree to the insertion of these words, on the ground that to make the remedy of the wife depend on a criminal proceeding and conviction would be to limit it in the most unjust manner, by accompanying it with painful and degrading circumstances. There was also another reason. He had known a case of a person of large property who was charged with one of these offences. A large portion of his property was applied to buying off the witnesses and sending them to a foreign country, which prevented his being convicted.

§ MR. GLADSTONE
said, he would admit that there were real and grave difficulties in this case, but they only showed how wisely the Committee would have acted if they had given effect to the real opinion of the Lord Advocate and the Attorney General by adopting the Motion of his hon. Friend the Member for West Surrey, the principle of which those two hon. and learned Friends of his admitted, but opposed on the division. The result was that they had now nothing left but a choice of difficulties. There might be a class of cases of persons absconding, with respect to which the Amendment of his hon. and learned Friend (Mr. Wigram) would be attended with serious objections; but, serious as they would be in themselves, they would be exceptional cases. He would remind the Committee that they 1586 were not now legislating so much for the upper classes, where, in cases of things so infamous, to abscond was a matter of course, and where the means of absconding were always at baud, as they were legislating for the people at large. With respect to the general operation of the enactment, he frankly affirmed that he had not an adequate conception of this question, but he was driven to give a vote upon it under the circumstances in which the Bill was brought before them, and being so compelled to give a judgment, it appeared to him that the Motion of his hon. and learned Friend (Mr. Wigram) ought to be adopted, because it tended to establish a rule which would be sound, fair, and wholesome in the generality of cases. In the clause, as it stood, there was something like a violation of the cardinal and elementary principle of justice in regard to criminal procedure which invariably guided that House, namely, that a man was supposed to be innocent until he was proved to be guilty. The hon. and learned Solicitor General could not imagine that by quoting the case of a court called upon to try a felony charged in a libel he was supporting a real analogy. That was a case in which there were many fundamental differences. In the first place, the man libelled went voluntarily into the Court; in the second place the question of libel and of felony as connected with libel was tried by a jury; and, in the third place, the question at issue was the mere failing of a man in his action, whereas here it was his being divorced from his wife.

§ MR. WIGRAM
was understood to say that in the case suggested by the hon. and learned Attorney General, of a man charged with an unnatural offence absconding from justice, the wife would obtain by his flight all the remedy she desired.

§ LORD LOVAINE
said, he thought it would be extremely unfair to bring an accused person into a court before which he might not have the means of proving his innocence.

§ Mr. PULLER
said, he wished to ask whether it would not serve the purpose of the hon. and learned Member for Cambridge University, instead of requiring that the different offences enumerated in the clause should be established in a Criminal Court, to have them tried by a jury in the Court of Divorce in the same way as the question of adultery was proposed to be decided.

§ MR. HENLEY
said, the Committee had only a choice of difficulties, and, for his own part, he though that the least inconvenient course would be to require a previous conviction in a Criminal Court.

§ MR. COLLINS
said, be would now propose to insert words to allow a wife to obtain a divorce in a case of murder or manslaughter, coupled with adultery, committed by her husband. The offence might be the murder of the man's paramour, and if after conviction for the murder the sentence should be commuted, he thought the wife should be allowed a divorce from such a man.

§ MR. DRUMMOND
said, he rose to propose an Amendment to extend the powers of the Court. He said that the House of Lords, acting in a more enlarged way than the Court now constituted could act, had the power, and on many occasions had exercised it, to judge equitably in respect to the cases brought before it. The word he proposed to introduce into the clause as a ground of divorce was the word "cruelty," unattended by any other circumstance. They must remember that women were not heard in that House, and he believed it was universal throughout a jurisprudence to challenge the Court, where there was any manifest unjust bias, Now, that House was a court of men judging women according to their own estimate and for their own purposes. He now called on them to do justice to a suffering class, whose sufferings they did not know, because, as with those who suffered in the Inquisition, those who knew their sufferings were interested in concealing them. They might think that they had done much in protecting women against the; brutal violence of drunken husbands, but there were much more serious lacerations of heart which took place in the higher regions. When the discussions on the slave trade were going on not one West India planter ever gave his vote in favour of the slaves, nor did any Member for a town—such as Bristol or Liverpool—interested in the slave trade ever do anything but vote against Abolition. So it was in the present case, and the Members of that House were very much in the situation of Turks legislating for the inhabitants of the seraglio. He would not let 1588 the matter, which he had undertaken, rest on empty assertion, but would quote instances drawn, not from the line of life whence, as on former occasions, his examples were drawn, but from Grosvenor Square and Belgravia. Those instances would show what women had to endure, and how the law afforded them redress, and he trusted, therefore, that the powers of this new Court would be extended. The first case was that of a young lady married to a gentleman who was heir to a large fortune, though at first he had a small income. Within a year or two after their marriage he had three mistresses living in three different houses in this town. With one or other of them he generally supped, and often came home intoxicated, when his servant undressed him and carried him into his wife's bedroom. She begged to be allowed to sleep in another room, but he said he would then bring home one of his mistresses to live in the house. For her children's sake she submitted to this treatment for nearly twenty years, when he died. During his life her health was twice injured by her husband's profligacy, and when her sons were about fourteen years of age her husband took them constantly to visit his mistresses. Another instance was that of a lady of a peculiarly meek, timid, and gentle disposition. She was married to a man who for no assignable reason took a dislike to her. Her love was then wholly concentrated on her children, and her husband, knowing that she would endure anything for their sake, treated her with systematic hardship and neglect. He locked her up in her bedroom, kept her destitute of money, and at length drove her mad. Under the kind treatment she experienced in a lunatic asylum she recovered, and being desirous of embracing her children, she returned to her house, was met at the door by her husband, who denied her admission. Her reason again gave way, and next morning her dead body was found in the sedges of a neighbouring pond. The dictum of a namesake of his (Mr. Drummond)—that property had its duties as well as its rights—had passed into a sort of household word; and, if one property more than another had its duties as well as its rights it was the property of power. Everywhere since the world began, power where it had been great and uncontrolled, had been used not for the blessing, but for the curse of mankind. In emperors, from the time of the 1589 Cæsars down to the modern emperors of Russia, Austria, and France. In public bodies, as may be seen in the conduct of the priests throughout the middle ages, in Italy, Spain, and South America; among popular assemblies—witness for example the popular assembly in France—the fact was the same; and now the House of Commons, composed of men, and having the absolute control over women, refused to give to women the right which they claim for themselves. He moved the Amendment which the Chairman had in his hands.
Amendment proposed in the same line. To leave out from the words "or of" to the word "destruction" in line ten in order to insert the words "cruelty or of."

§ SIR GEORGE GREY
said, he would express a hope that the Committee would not agree to the Amendment, because it would introduce an entirely new principle into the law of divorce. The cases which had been cited by the hon. Member for West Surrey were new to him, but certainly one of them was one of flagrant and repeated adultery, which the clause as it stood would meet.

§ MR. GLADSTONE
said, that when this question should be discussed here-after, when this measure should have borne its fruits, and when the public mind should be more enlightened, it would be difficult probably to resist the Amendment of his hon. Friend the Member for West Surrey. The opinion had often been expressed, that if the dissolubility of marriage were once admitted in certain cases it would be impossible to find any broad ground on which they could take their stand against further invasion. That, indeed, was the current opinion, but he had striven to impress upon the mind of the Committee that they ought not to place too much confidence in temporary and local opinion, but that they ought to elevate their vision, and to take less contracted views of the operations of the human mind than they were apt to do from a defect, he feared, inherent in their natural disposition—a defect which prevented their assuming the existence of anything in heaven or earth except that which chanced to be dreamt of in their philosophy, and which made them imagine that what they knew in their sphere comprehended all in God's universe, and that the notions current 1590 among themselves afforded grounds for permanent and durable legislation. Ha protested earnestly against that doctrine. He had warned, and he would again warn, the Committee against the undue confidence which it seemed inclined to repose in the fashionable opinions of the day, and he claimed that they should found there legislation upon the basis of a wide experience. What stronger proof could there be found that we were not in a fit state to legislate on the subject than the fact that when a learned person thought fit to prepare an account of the law in twelve foreign countries, and presented his book to the House of Lords many months ago, that book had not been supplied to Members of the House of Commons, except to a favoured few, and to this moment he believed that no member of the Government had looked into it. Such was the way in which they were dealing with this great question. He did not think that in this instance it would be inconsistent with the principle, upon which he had protested against the second reading, were he to join with his hon. Friend in the introduction of a complete new category of causes for which divorce should be granted. Entertaining, however, gloomy thoughts as to the effect of this Bill he did not wish to accelerate the fulfilment of his predictions; and although he agreed with his hon. Friend that there were causes in which the misconduct of a husband to a wife—tyranny and cruelty, for example —laid the ground for a divorce, such as it was, yet he could not join in the introduction of this new chapter into the history of such cases. He did not think that the principle which his hon. Friend proposed to introduce was called for by the country, and he feared that while appearing to do an act of humanity in particular instances, and grant, relief in a few isolated cases, they would, if they agreed to the Amendment, inflict a new and a deep injury upon the interests of those whose welfare they were so anxious to promote.

MR. BUXTON
said, he wished to explain that on n former occasion, although he had been apparently misunderstood, he had intended to say that the distinction drawn in the Bill was not an arbitrary distinction of the Attorney General's, but a distinction drawn by nature. Without strong ground he should not feel satisfied in drawing an artificial line between the rights of men and the rights of women.

§ MR. HENLEY
said, he wished to ask for a legal definition of the term "desertion."

LORD JOHN MANNERS
asked for a similar definition of the phrase "without reasonable excuse." Would the word desertion include constrained absence under a criminal sentence?

THE CHAIRMAN
said, he must remind the Committee that there was no Motion before the Chair.

§ MR. HENLEY
said, that to put himself in order, he would move as an Amendment the omission of the word "desertion."

THE ATTORNEY GENERAL
said, he should have thought the right hon. Gentleman, who in his capacity of magistrate must have made many orders upon husbands for the support of wives deserted by them, would have been perfectly acquainted with the meaning of the word. The word as used in the Bill admitted in plain intelligible interpretation. When a man had altogether left his wife and children, not simply refusing to cohabit, but quitting his house with no intention of returning—this was desertion. It had, he believed, in a case which had come before the House of Lords been called abandonment. Of course such a construction of the word excluded temporary or constrained absence. With regard to the question of the noble Lord whether constrained absence, under a criminal sentence, involved desertion, his reply would be certainly not. Desertion implied voluntary abandonment.

§ LORD LOVAINE
said, he would beg to ask whether a wife, whose husband, condemned to penal servitude, did not return at the expiration of his sentence, would be allowed to contract a second marriage on the score of desertion?

THE ATTORNEY GENERAL
said that, supposing a man to have been transported, to have completed his sentence, and not to have returned home or been heard of for two years afterwards, the wife would be entitled to marry again.

§ MR. HENLEY
said, that a man might live in Belgrave Square, and keep a mistress in Dorset Square. During the time specified in the Bill he might sleep half a dozen times in his own house. Would that constitute desertion?

THE ATTORNEY GENERAL
said, it would not.

§ MR. AYRTON
said, that no difficulty had existed under the existing law where desertion was regulated by the maintenance of the wife by the husband; but as soon as that rule was altered, and they were remitted to the question of simple desertion he saw no end to the difficulties which would arise in the construction of that word. If desertion, coupled with adultery, was to be a ground for divorce, such desertion should be an absolute separation brought about by the criminal conduct of the husband. He did not think the word "desertion" was clearly defined. For instance—if a husband, still keeping up his house in England, went to live in Paris, and there committed an act of adultery after two years' absence, was this to be considered adultery coupled with desertion?

§ MR. GLADSTONE
said, he believed he could trace in the last answer of the Attorney General that mistrust of the phraseology of the Bill which he exhibited whenever he came to any portion of it which had been drawn up by a noble and learned Lord. He (Mr. Gladstone) thought they were involved in considerable difficulty with regard to this matter of desertion. It had been very pertinently asked what was the use of the words "without reasonable excuse" as they stood connected with the word "desertion"? Surely the word "desertion" of itself was sufficient, for if there were reasonable excuse for the absence of the husband how could there be any desertion? He was doubtful, he owned, not only as to the mode in which the procedure under the Bill would work, but as to the result of that working. His right hon. Friend the Member for Oxfordshire had put the case of a gentleman having a house in Belgrave Square, where his wife resided, and where he paid rent, taxes, and kept up a large establishment; this gentleman also kept a mistress in Dorset Square, and never visited Belgrave Square half a dozen times in two years. To this case the Attorney General replied, that it would not be desertion. But he (Mr. Gladstone) would put a still stronger case. Suppose he never went to Belgrave Square at all, but his wife lived there, and he kept a full establishment—would that be desertion? [Mr. BUTT: No.] He protested, then, he did not know what else it could be termed. His hon. and learned Friend the Attorney General had been asked to give a definition of the word desertion, and his answer was—a man who had ceased 1593 to live with his wife, and had no intention of returning. But in the case he had supposed, surely the man who never went to the House in which his wife dwelt, must be held to have deserted her; he had no intention of returning to Belgrave Square. The definition of the Attorney General, therefore, entirely broke down. Then, with regard to a class of persons in the humbler ranks of life—the sailors in the commercial navy. There was no class amongst whom marriage was in so loose and unstable a state—no class which would give more food to hungry attorneys. Was the onus of proof of an intention to desert to be thrown upon the wife in case of her husband having gone abroad and not returned within the period mentioned in the Bill? It frequently happened that a sailor remained abroad upwards of two years for a legitimate cause. How was it possible that in such cases the wife could establish a case of desertion? The Committee were entirely in the dark as to the probable operation of that part of the clause relating to desertion.

MR. LYGON
suggested that if the hon. and learned Attorney General referred to the code of Holland, which enacted that in case of a malicious desertion of five years divorce might be obtained, he might be able to frame a clause which would be more satisfactory to the Committee.

§ MR. GLADSTONE:
I ask my hon. and learned Friend the Attorney General whether he has considered that?

THE ATTORNEY GENERAL
said, that in regard to desertion, the Court would judge of the animus of the party from the overt act. The essence of the crime consisted in the intention of the person committing it. Whether the absent husband communicated with the wife, or sent money for her support, was a matter that could be easily ascertained.

§ MR. CLAY
observed, that he thought the Committee had been occupied for hours in the profitless task of splitting straws. He could hardly conceive a case in which a man of ordinary sense could not readily pronounce whether or not there had been desertion. The case put by the right hon. Gentleman the Member for Oxford University, judged by the rules of common sense, and he believed also by the principles of law, would be clearly one of desertion.

LORD JOHN MANNERS
denied that it was a waste of time to endeavour to comprehend the legal meaning of their 1594 own legislation. It would be a great injustice to refuse to a woman whose husband had not only committed adultery, but also some great crime which caused him to be transported for life, that relief which was to be granted to wives in cases that were far less aggravated. Yet that would be the effect of the construction put upon the clause by so high an authority as the hon. and learned Attorney General.

§ SIR DENHAM NORREYS
said he entertained the same opinion as the hon. Member for Hull (Mr. Clay) that in disputing about words they were losing sight of the substance. How could it be said that a man who lived in another house with a mistress, and habitually remained away from his wife, had not committed desertion? But, perhaps, it would be better to say at once that the wife should have a remedy whenever the husband had been guilty of open and notorious adultery.

§ LORD LOVAINE
said, that the plan of the hon. Baronet might save trouble, but it was not exactly the proper way to legislate. The complaint, however, was most unjust, that an over-anxiety was manifested to obtain an interpretation of "desertion." It would be most undignified to expect Judges to interpret words to which the Legislature avowedly could not assign a meaning.

§ SIR WILLIAM HEATHCOTE
said, he was quite willing that the view of the hon. Member for Mallow (Sir D. Norreys) should be acted upon, and that open adultery should be held to be desertion. The limitations introduced into this clause were none of theirs (the Opposition); but, if those limitations were insisted on, it was only reasonable that they should have a definite signification.

§ MR. GLADSTONE
remarked, he believed it had been truly affirmed that the Committee had been asked to adopt words of which they did not know the meaning. It was not his doctrine that the case he had put was one of desertion. A number of hon. and learned Members declared decisively that it would not he desertion, but the hon. Member for Hull, with more than usual boldness, said that common sense and the Courts of law would alike declare that it was a case of desertion. He always suspected his hon. and learned Friend the Attorney General when he shifted his ground. [The ATTORNEY GENERAL: I did not shift my ground.] That was matter for argument. He began with a definition 1595 of desertion, which he defined to be "when a man had ceased to live with his wife, and had no intention of returning." But when the lawyers agreed that no case of desertion could be proved on this definition of desertion, his hon. and learned Friend did not return to his definition, but said the Courts would be guided by the animus deserendi. But what was the meaning of the word deserendi? That difficulty still remained, and constituted the very point they were endeavouring to ascertain, for no Member of the Government had yet been able to give a satisfactory definition of it. The clause as it stood was not intelligible, and he hoped that his right hon. Friend (Mr. Henley) would not make himself responsible for the wording of the clause, the responsibility of which properly belonged to the Government, but would persist in his negative, not for the purpose of defeating the object of the clause, which he (Mr. Gladstone) would admit was a good one, but for the purpose of compelling the Government to put that object in intelligible language. The fact was that Parliament was asked to pass Bills with haste and precipitancy at the end of the Session, to make up the tale when it was shorter than usual, and the acts so passed went into the Courts of Law with great disparagement to the reputation of Parliament, which was in the following Session asked to amend them.

§ MR. HENLEY
said, he had great difficulty in making up his mind, after the opinions that had been expressed upon the meaning of the word desertion, whether his Amendment would be of any advantage to the woman. He should there consent to the withdrawal of his Amendment.

§ SIR DENHAM NORREYS
said, he would now propose to strike out the words, "for two years and upwards." His object was to leave it to the Courts to decide whether the desertion had been of such a character as to justify the claim of the wife.
Another Amendment proposed in the same line, To leave out the words, "for two years or upwards."

§ MR. CLAY
said, he wished to explain that what he had said was that common sense would call the case put by the right hon. Gentleman (Mr. Gladstone) one of desertion, and that he believed the Courts of Law would agree in that decision.

THE ATTORNEY GENERAL
said, he hoped that the Committee would not agree to the Amendment of the hon. Member for Mallow. In the codes of all countries some term was always mentioned in defining desertion. If the words "two years or upwards" were struck out, the woman might be baffled, for the Courts would be unable to determine whether there had been such an abandonment as to show that no animus revertendi existed. He believed that the period of two years was taken from the French code.

§ MR. BUTT
said, he now rose to move the insertion, at the end of line ten, of the words, "or of adultery coupled with aggravated ill-treatment of the wife, of such a nature as ought, in the opinion of the Court, to entitle her to such divorce." The object which he had in view in proposing the Amendment was to prevent the possibility of the wife being placed under the operation of the clause, as it stood, in a worse position when suffering from the cruelty of her husband, than that in which she was placed by the existing law. There was, he added, no principle better established in the procedure of the House of Lords than that acting upon which the other branch of the Legislature deemed itself justified in refusing to the husband, who was proved to have neglected or ill-treated his wife, the remedy of divorce, notwithstanding that the infidelity of the wife might have been beyond all doubt established. That principle the House of Lords applied as it thought right to the varying circumstances of the several cases that came before it for decision, but the Bill under discussion sought to establish a new tribunal for the granting of divorces, which would be bound by fixed and unchangeable rules, and which would not have it in its power therefore to exercise that discretion in carrying out the principle to which he had adverted, which the House of Lords possessed. He recollected a case of a suit for divorce in which the guilt and degradation of the wife had been clearly proved, but in which she had succeeded in establishing that early in their married life her husband had abandoned her to seek his fortune in another country, and, instead of joining her upon his return to his native land, had left her in a state of poverty and destitution, and had sought a divorce from her only when he found that her conduct might bring degradation upon himself. Well, in that case, Lord Lyndhurst, 1597 while admitting that all the allegations which had been brought against the unhappy woman were true, had pronounced the husband to be morally responsible for her degradation, and the consequence was that she had been able to quit the House of Lords, exclaiming in the face of her husband "I am still your lawful wife." Such was the principle upon which the other House of Parliament proceeded. The whole current of legislation in recent days, in fact, demonstrated that there existed a leaning to extend the remedy of the wife to cases which had not previously been contemplated by our laws; and it was in order to uphold that principle that he proposed that in every instance in which the crime of adultery had been proved against the husband, combined with aggravated ill-treatment of the wife, then the new Court should be empowered, but not compelled, to grant a divorce.
Amendment proposed, at the end of line 10, to insert the words "or of adultery coupled with aggravated ill-treatment of such a nature as ought, in the opinion of the Court, to entitle her to such divorce."

MR. LYGON
said, he thought the sincere thanks of the Committee were due to the hon. and learned Member for Youghal for having raised this question. He believed, however, that the object of the hon. Gentleman's Amendment would be better effected by inserting the words "adultery with aggravated circumstances." They would thus avoid the iron rule prescribed by the clause as it stood, and retain that elasticity as to the power of relief which at present obtained. He might be permitted to remind the Committee that three ex-Lord Chancellors had come to the opinion that it was unreasonable not to place the wife upon a perfect equality with the husband in the matter of divorce. So much, therefore, for the judicial decisions of the House of Lords, upon which the present law was said to rest. He should move, then, at the end of line ten to insert these words, after "adultery," with aggravated circumstances."

THE ATTORNEY GENERAL
said, he had some difficulty in reconciling the 1598 speech of the hon. and learned Member for Youghal with his Amendment. The case which he put was that of a husband not open to the charge of adultery himself, or of being accessory to the adultery of his wife, but who, having deprived her of the advantages arising from his wealth, and reduced her to poverty, was in some degree the cause of her degradation. Such a case as this he bad stated as a reason for the Amendment which he now proposed to the House, that Amendment being "adultery coupled with aggravated ill-treatment" as causes which should entitle the wife to a divorce. This was introducing a new title to divorce in favour of the wife; for it introduced adultery, and not adultery alone, but adultery aggravated by ill-treatment. But in the case on which the hon. and learned Member rested his argument there was no adultery, but simply what he described as ill-treatment. Then the hon. Member opposite (Mr. Lygon) not exactly satisfied with the words proposed by the hon. and learned Member for Youghal— feeling probably that the words aggravated ill-treatment were neither very intelligible or very euphonious—suggested that the terms should be "adultery coupled with aggravated circumstances." Now, the question to be decided was, whether they should have in the Bill an enumeration of the particular instances forming the grounds of divorce granted to the wife against the husband, or whether they would have one general, sweeping, indefinite clause which would give the Court power to grant divorce to the wife whenever there were such circumstances of ill-treatment, added to adultery, as they thought warranted such a decision. If they resolved to have a general sweeping clause of this kind, then all the specific grounds for divorce against the husband which they had been laying down became perfectly useless. If it was to be decided that, the Court should have power to give divorce to the wife against the husband where there was adultery accompanied with circumstances of ill-treatment—if a sweeping clause like that were to be introduced—it ought to have been done a long while ago, and so saved the House the I trouble of the long contest which had taken place, while specifying particular grounds of divorce. He was not prepared to accede to the proposal of his hon. and learned Friend, which was, indeed, the same in principle with that decided the other evening, when the hon. Member for 1599 Surrey moved the omission of the word incestuous from the clause. He repeated that, if carried, the Amendment would entitle a woman to obtain a divorce against her husband without reference to those specific accompaniments of adultery which the House, at the expense of much time and debate, had agreed to. It would make the rule as to divorce on the part of the woman altogether too elastic, for different Judges would be found interpreting circumstances very differently, and thus the law would become undefined, and made to depend upon the discretion of a Judge.

§ SIR WILLIAM HEATHCOTE
said, he differed entirely from the view taken by the hon. and learned Attorney General. He thought the question before them— even accepting the decision on the Motion of the hon. Member for Surrey as decisive against putting the woman in the same position as the man —was, ought they not to approximate towards giving the woman some protection and more of an equality with man? This they had done up to that point. It was admitted that if there were circumstances which showed something more than a more act of adultery on the part of the husband —something beyond a passing demonstration of an alienation of his affections—they ought to give the wife rights which would otherwise be denied to her. Acting in that view, then, the hon. Member for Youghal (Mr. Butt) proposed to give the Court an opportunity of taking cognisance of those innumerable circumstances which tend to make up a case impossible of definition within the corners of an Act of Parliament. Every one allowed that they were obliged to leave behind them cases of the greatest enormity from want of the necessary procedure for giving redress to the wife. Then, if that were so, it was only reasonable to give the Court the liberty of action proposed by this Amendment.

§ MR. MALINS
said, he concurred entirely in the views expressed by the Attorney General. He considered that as the Committee had already decided that there should be a difference as to the offence of adultery committed by the man and the woman, it would not be consistent to leave to any Court of Justice the discretion to decide what was the aggravated ill-treatment which would enable the wife to bring herself on terms of equality; and, moreover, it was such a discretion as he was not prepared to commit to any tribunal. Besides, the Amendments ought to have 1600 been brought forward earlier in the evening, for if either of these were adopted the Committee would have been wasting time most miserably in previous discussions.

§ MR. NEWDEGATE
said, he must be allowed to observe, notwithstanding what had been so frequently alleged, that this Bill made a material difference in the position of men as to the attainment of divorce, for it gave them a more absolute right in the matter than they had ever possessed before. And, as had been stated by the hon. and learned Member for Youghal (Mr. Butt) it gave them that right without the intervention of that discretion hitherto exercised by the House of Lords. Well, it was said that all their lengthy discussions would go for nothing if the present Amendment were accepted. Now, as far as their discussions were concerned, he argued from their great length that the majority of the Committee were not satisfied with the limitation given in the Bill to the claims of woman. He took it, then, that there were great doubts as to whether they had gone far enough in admitting their claims. As to himself, he unfeignedly pronounced this to be a most cowardly Bill: for if he was capable of interpreting the fundamental principle of the English law, it was directed to protect the weak against the strong, while this Bill refused to give the redress to the weak which it gave to the strong. Learned lawyers might, indeed, discover difficulties which were not apparent to his sense of justice in the way of such an arrangement, but his belief in the necessity of a discretionary power being vested with the Court was so strong that if his hon. Friend the Member for Tewkesbury (Mr. Lygon) pressed his Motion to a division, it should receive his support. He was sorry to say he himself knew of cases where husbands maintained mistresses immediately opposite to the houses where their wives resided, and he, therefore, for one should be most unwilling to refuse in such cases the relief now demanded.

MR. NAPIER
said, he thought there was not sufficient definition in the term "aggravated;" and that it would leave too much to the whim of the Judge, or as it was sometimes called, his discretion. The Commission pointed to that consequence; and though at first he was inclined to put the woman and the man upon terms of equality, it left so much to the Judge that he could not support the Amendment.

MR. LYGON
said, that as there was no substantial difference between his Amendment and that of the lion, and learned Member for Youghal, he would beg leave to withdraw his own.

§ MR. BUTT
replied: The word "aggravated," in this case, meant special circumstances; and he had no hesitation whatever in leaving all such cases to the discretion of the Judge. The only choice of the Committee was to exclude a number of cases of the grossest character by insisting on strict definition, or to accept his Amendment, which left the cases in question to the discretion of the Judge. He intended to press his Amendment, therefore, to a division.

§ MR. COX
said, that having been ten hours engaged on the Bill he should move that the Chairman report progress.

THE ATTORNEY GENERAL
said, that there were no other Amendments to the clause, and if they would agree to it he should not object to reporting progress.

§ MR. GLADSTONE
said, that there were other Amendments to the clause.

§ SIR WILLIAM HEATHCOTE
said, he also thought that there were other Amendments, and, moreover, he would remind the hon. and learned Attorney General he had promised to give a definition of the word "bigamy," which occurred in the proviso, and which was important.

THE ATTORNEY GENERAL
said, that the definition of the word "bigamy" would come in much better in the interpretation clause, and he undertook that it should be given there if the Committee would favour him so far as to dispose of this clause.

§ MR. GLADSTONE
observed, that it was past twelve o'clock, that they had 1602 been upwards of ten hours engaged in discussing this Bill, and that several hon. Members had left the House in a state of complete exhaustion. He must, therefore, decline to discuss at that late hour the question whether the definition should be added to this clause, or included in the interpretation clause. He thought there had been extraordinary neglect and carelessness on the part of the Government with regard to this Bill. [Cries of "Oh!"] He repeated the assertion. A paper with respect to foreign codes had that morning been placed in the hands of hon. Members which bore most vitally on the subject they were now discussing. It had some time previously been laid on the table of the House of Lords, and he said again that the delay in its presentation to that House exhibited a degree of carelessness to which he recollected no parallel. He thought that under these circumstances it was impossible to continue the present discussion.

§ VISCOUNT PALMERSTON:
I certainly congratulate the opponents of this Bill on the success with which they have, for ten hours, contrived to exercise their ingenuity upon three lines of a clause. If they will allow me, however, I beg to inform them that we shall return and sit here day by day, and night by night, until this Bill be concluded. Other persons, I think, when they see the course of our proceedings, may entertain opinions not very favourable to those who oppose the progress of this Bill. It will be for them to consider how far their conduct will meet with general approbation. I should certainly have resisted the proposition for an adjournment, and should have urged the Committee at least to go through this clause, but for consideration to the professional engagements of my hon. and learned Friend the Attorney General, who will be required at an early hour to-morrow to be present in the House of Lords. Out of consideration to him, therefore, and not at all out of consideration to the opponents of the Bill, I shall not oppose the Motion for adjournment.

§ MR. GLADSTONE:
This is not the first time that my noble Friend has given me occasion to perceive that he emancipates himself from certain rules which are ordinarily incumbent upon hon. Members of this House. [Cries of "Oh, oh !"] I repeat it —this is not the first occasion on which my noble Friend has emancipated himself from those rules which are ordinarily 1603 incumbent upon hon. Members of this House, and on which, confident in his majority, he assumes to himself the liberty of using language to other hon. Members of this House which I will venture to say is entirely without precedent —["Oh !"]—yes, without precedent so far as my recollection of twenty-five years in Parliament can go—in the conduct of former leaders of this House. It is the first time that I have heard the leader of this House rise in his place, after ten hours' discussion upon a single subject, and find fault with those who have been endeavouring to repair the grievous and manifold errors of his Bill, as if they had been interposing obstructions; and it is the first time that I have hoard the loader of this House, on consenting that the Chairman should report progress, take care to inform those from whom he differed, and on whom he is laying a physical burden as great as their powers will bear, that be consents to it, forsooth, out of deference to the Attorney General, but in no degree out of consideration to the Members of this House. Now, I will meet my noble Friend by no retort of language, by no epithet such as, perhaps, in a moment of temper, I might be inclined to apply. I have heard those observations of my noble Friend, however, with the greatest pain; and this is not the first occasion upon which I have experienced the same feeling. So thankful am I for the liberty of speech permitted to minorities in this House, and happily not subject to be taken from us by any arbitrary will, that taunts like those proceeding somewhat too often from a portion of the Treasury bench will not ruffle my temper. I put it seriously to my noble Friend, to those who support him, and the House generally, to say what has been the character of the discussion upon this Bill. Have not three-fourths of the time that we have occupied in Committee been occupied in urging propositions to which at length Her Majesty's Government, notwithstanding their opposition in the first instance, have been forced to give way? We began business this morning with an Amendment of the noble Lord the Member for North Leicestershire (Lord John Manners), which for two hours and a half was stiffly resisted by the Attorney General; but at last, such was the feeling in its favour, that my noble Friend, with that acute instinct which enables him to discern the signs of the coming defeat, conceded the point. Is it fair and just after this, 1604 and when our discussions have usually terminated by our gaining the points we have pressed, to say that factious obstruction is the character of those discussions? I say that the whole proceeding of my noble Friend is entirely unprecedented. No doubt, in the course he is taking, he is adopting a conscientious construction of what he believes to be public duty. I hope he will make similar allowances for those who are opposed to him. I believe we are acting strictly in the discharge of our duty when we oppose one of the worst and most carelessly drawn Bills on a subject of the greatest importance I have ever seen submitted to this House; and I am quite prepared to leave the judgment to be passed on our respective proceedings to the public out of doors.

§ VISCOUNT PALMERSTON:
Whether, in the words which have just passed, my right hon. Friend or I have shown the greatest amount of temper, I will leave others to decide. I only beg to say that I used no epithets. I did not employ the word "factious." Perhaps, indeed, when the House recollects that, in a former part of this ten hours' sitting, my right hon. Friend informed me that he was determined we should not carry the Bill until the Greek Kalends, I might have used something like the expression which my right hon. Friend imputed to me. But I did not do so. As to the complaint he makes, I do not conceive I am departing in any way from the rules of the House in the step I have taken. The natural course would have been, in such a case as this, for the leader of the House to have resisted a Motion of adjournment, when there remained only a few lines of a clause with regard to which no Amendment was to be proposed. The natural course would have been to ask the Committee to affirm that they would not report progress. I stated that, in acceding to the adjournment, I did so not out of deference to any arguments urged by those who opposed the Bill, but out of consideration to my hon. and learned Friend and the professional engagements which he has to fulfil; and, in doing so, I believe I was acting strictly in accordance with the rules and practice of the House.

§ MR. HENLEY
said, the noble Lord was not quite correct in saying that there remained no Amendment to be disposed of on this clause. It was certainly expected that the definition of a word would be added to the three remaining lines which the Attorney General now said he was 1605 desirous of adding in a general interpretation clause.

§ MR. WIGRAM
said, he thought the noble Lord's complaint of the conduct of the opponents of the Bill came at rather an unfortunate time, just after the Opposition side of the House had assisted the Government to carry out their views, and had obtained for them a majority of three to one. It was not to be expected that the opponents of the Bill should, by any protest on the part of the Government, be prevented from giving it a careful and adequate consideration.

§ SIR FITZROY KELLY
said, the word "bigamy" in this clause would require a very lengthened discussion to set its meaning right.

§ MR. GLADSTONE:
Perhaps the Committee will allow me to offer one word of explanation. My noble Friend, as I now understand, says it was not out of consideration "for the arguments" of the opponents of the Bill that he acceded to the adjournment. My belief was that he said it was not out of consideration for his opponents. If, however, it was not out of consideration for their arguments, I have not a word of complaint to make of that phrase, and I beg my noble Friend to consider unsaid what fell from me on this subject.

§ VISCOUNT PALMERSTON:
What I meant was, that I acceded to the adjournment not out of consideration for "the wishes" of the opponents of this measure.