Commons Sitting of 18 August 1857

MINUTES.
3o Customs and Excise; Customs.
DIVORCE AND MATRIMONIAL CAUSES (STAMP DUTIES) BILL.

  COMMITTEE.
  Order for Committee read.
  House in Committee.
  Upon the motion of Mr. BOUVERIE in the absence of Mr. WILSON, the following Resolutions were agreed to:—
  "That the same amount of Stamp Duty as is now payable on the admission of a proctor to any Ecclesiastical Court shall be payable by every person to be admitted as a Procter in the Court of Divorce and Matrimonial Causes, or in the Court of Probate, who shall not have been previously admitted as a Proctor in the other of such Courts, or in an Ecclesiastical or Admiralty Court, and have paid the Stamp Duty in respect thereof:
  "That every person who shall practise as a Proctor or as a Solicitor or Attorney in the said Court of Divorce and Matrimonial Causes, or the said Court of Probate, shall obtain an annual Certificate to authorise him so to do under the Stamp Duty Acts in the same manner as Proctors practising in the Ecclesiastical or Admiralty Courts and Solicitors and Attorneys practising in Her Majesty's Courts at Westminster are now required to do by the said Acts or any of them."
  House resumed: Resolutions to be Reported this day at Six o'clock,

  DIVORCE AND MATRIMONIAL CAUSES BILL.—COMMITTEE.
  Order for Committee read.
  House in Committee: MR. FITZROY in the Chair.
  Clause 53 (Parties at liberty to marry again).
  SIR WILLIAM HEATHCOTEsaid, it was with great pain he had to communicate to the Committee that his right hon. Friend and Colleague (Mr. Gladstone), who had an important Amendment coming next in order, had been subjected to a very severe domestic calamity, the apprehension of which had prevented his attendance yesterday, and the actual occurrence of which would now render his presence impossible. Under these circumstances he had to throw himself upon the indulgence of the Committee in presuming, at very short notice, to bring before them an Amendment which ought to have been in so much better hands. The Amendment of which his right hon. Friend and Colleague had given notice was to leave out all the words after "marry again," in the last line but one—namely, "as if the prior marriage had been dissolved by death"—for the purpose of inserting "in the office of the registrar." The effect of that would be that the respective parties in a divorce case would be allowed under the clause to marry again; but they would be obliged to be married before the superintendent registrar. He might take that opportunity of saying, that although the words he had read were quite sufficient to raise the discussion, yet he apprehended it would be necessary to add, in the event of their being carried, words for the purpose of showing distinctly that marriages before the registrar should take place under the conditions of an Act passed in the last Session, by which the marriage in the office of the registrar did not in any way preclude the religious ceremony afterwards, if the parties could procure a clergyman of the Church of England or a minister of any other denomination to perform it. Notice had been given of other Amendments, the effect of which would be to leave the parties divorced to be married in the ordinary way, but to exempt from penalties any clergyman who should refuse so to marry them. Now, the hon. and learned Attorney General, in an early part of these debates, pointed out the inexpediency of enacting a law and in the same breath providing exceptions for persons who did not obey it. If the Com-
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  mittee were driven to that alternative he thought reasons might be shown for its adoption; but he so far agreed with the hon. and learned Attorney General that he would prefer putting the law on such a footing that it would not be necessary for any one to claim an exemption under it. As far as the clergy and the person seeking marriage were concerned, the Amendment which he intended to propose on behalf of his right hon. Friend and Colleague came exactly to the same point as those to which he had just referred. Divorced persons going before a registrar would be enabled under his Amendment to be married, and although they could not under the Act of last Session compel any clergyman to add the religious ceremony, yet that was common to all the other Amendments, which expressly provided that no clergyman should be obliged to marry them. The superiority of his Amendment consisted in its allowing the law to be carried out in a regular manner, without the necessity of exempting any one from obeying it, and obviating the objections pointed out by the Attorney General. It had been represented as hard to subject divorced persons to what was deemed an inferior mode of becoming married. He asserted, on the other hand, that when the Act of last Session was passed, marriage before a registrar was put upon an equality with marriage in a church, for the express purpose of meeting the conscientious and very reasonable scruples of Dissenters. It was open to any person to superadd to the civil ceremony any form of religious sanction which they thought fit. Considering the religious differences which existed in England at the present day, he saw no reason why every marriage should not commence with the civil ceremony; but, at any rate, they had no right to say that marriage before a registrar would place parties in an inferior position, especially when they would have an opportunity of superadding the religious ceremony in the event of their being able to induce a clergyman to perform it. The Act of last Session contained a recognition of two principles important to his present argument. One was that, notwithstanding all the forms which the Act prescribed had boon gone through, no minister of religion should be obliged to take notice of those forms, or solemnize marriages which were initiated in the office of a registrar; in other words, ministers of religion were relieved from the obligation of performing the religious ceremony over those who

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  commenced their marriage not in accordance with the mode prescribed by the denomination to which they belong. The other was that persons who were desirous to add the religious ceremony ordained by the Church might do so, if they could induce a clergyman to perform it, not only to the notice commenced in the office of the registrar, but to the actual marriage completed before that functionary. He held, therefore, that the provisions of the Marriage Act, applying as they did in both directions, giving a precedent for respecting the conscientious scruples of clergymen, and at the same time affording the divorced persons who might be remarried before a registrar all the advantages of the religious ceremony, went far to remove the various objections which had been stated against his Amendment. It was not necessary to enter into much argument to prove that, grave religious scruples were entertained by the clergy at large with respect to the law of divorce, though at the same time he was ready to admit that they differed in intensity. Some of the clergy entertained conscientious scruples against remarrying any person whose previous marriage had been dissolved by divorce. Others, again, believed they were prohibited from marrying the guilty party, while others objected to marry the two persons who had been parties to the act which had led to the dissolution of the marriage. To one of those classes the large majority of the clergy of the Church of England belonged, and their opinions, he conceived, were not to be utterly disregarded. The conscientious scruples of the clergy had been recognized upon a much less important matter in the course of last year, and in following the same course upon the present occasion no injury would be done to any party, as whenever a clergyman could be found who did not entertain objections to such marriages the parties could obtain the advantage of the religious rite. It must be remembered too, that if parties whose conduct had led to a dissolution of their previous marriage were placed in a somewhat inconvenient position they had not much to complain of; for it would be too much to expect that persons who had been guilty of such an offence should be placed upon exactly the same footing as persons whoso conduct had been irreproachable. Moreover, he believed that in scarcely one case out of 5,000 was the party complaining entirely free from the imputation of having in some measure contributed to the unfor-
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  tunate result. This Bill could not be regarded as the end of legislation. In future Sessions there would be efforts to establish fresh causes of divorce, and as those causes were multiplied so would the objections of the clergy to remarriage be increased. At present the country was approaching rapidly to a complete distinction between the civil and the religious aspect of marriage, and it would be a mere superstition now to believe that any proceedings in a court of justice could have any effect upon the religious character of the marriage contract. By adopting the Amendment he proposed, Parliament would be confining itself to its legitimate functions of civil legislation, leaving the religious question to be dealt with by the clergy. The lower order of the people, especially in the country districts, had a high notion of marriage as a religious ceremony—they thought that it excused all previous faults, and to legalize the intermarriage of adultrous persons would, he feared, lead to very lax ideas of the wickedness of seducing a neighbour's wife. If the Bill, as it stood, were forced upon the clergy, he must say, without in the least intending to hold out a threat, that he believed the feeling of that body was such that it would be a most important step towards producing a severance of that connection between the Church and the State which it was so desirable to see maintained. Let them recollect the effect of a similar step in the break up of the Kirk of Scotland. A timely concession might have prevented that schism—a concession made now might prevent a similar disruption in the Church of England. He proposed the Amendment which had been suggested by his right hon. Colleague, believing that it tended to prevent such an event as he had just alluded to, that it kept Parliament within the range of its proper functions, and that it would tend to mitigate the great social evils which were to be apprehended from facilitating the granting of divorces. He also believed this Amendment would meet the purpose of all the other Amendments, the object of which was to protect the clergy form an oppression upon their consciences; and upon that, and the other grounds he had mentioned, he asked the House to give the proposition the same active consideration which he was sure it would have received had it had the advantage of being proposed by his right hon. Colleague.
  Amendment proposed in p. 13, lines 15 and 16, to leave out the words "as if

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  the prior marriage had been dissolved by death," in order to insert the words "in the office of the Registrar."
  The ATTORNEY GENERALsaid he was quite sure he expressed the feelings of all the hon. Members on that (the Ministerial) side of the House, when he gave utterance to his deep regret at the calamity which had deprived them of the presence of one who was the chief ornament of the debates of that assembly. There was no man who more admired the ability and eloquence of that right hon. Gentleman (Mr. Gladstone), or who could have more pleasure in bearing testimony to his distinguished talents than himself (the Attorney General), but at the same time he did not think the case had lost anything by being committed to his hon. Friend, considering the calm, impressive, and judicial—he probably might add—successful mode in which the merits of the case had been presented to the Committee. He regarded this as a most important question, and one which they were bound to approach in the most careful and deliberate manner. He would desire, therefore, to express to the Committee the difficulties which he felt with regard to the proposal now before them, not with a view to defeat that proposal, but to assist, as far as lay in his power, in giving the Committee a right apprehension of its bearings, and to ascertain, if possible, the best method of raising the important question pointed at in various Amendments on their paper—that question being whether there should be a legal obligation on any clergyman of the Church of England, who did not desire to marry divorced parties, to celebrate such a marriage. The Committee would observe that the proposition before them involved in the first place a provision that the divorced parties were to marry through the medium of the registrar, both the guilty and the innocent party being involved in this arrangement. Then, in the second place, by striking out the words "as if the prior marriage had been dissolved by death," they arrived at the conclusion that the alteration was based upon the doctrine that marriage in the eye of the Church of England was to be regarded as an indissoluble engagement. Now, he submitted that on these two grounds the Amendment was highly objectionable. But he would further endeavour to explain to the Committee the grounds of objection that would arise from adopting the form of words laid down in the Amendment. They would observe that the marriage was to
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  take place "in the office of the registrar." That was an affirmative proposition. Let them imagine a case where the parties had been divorced; they might go out to the world and mix in society; but some time afterwards the husband might form another engagement and marry in facie ecclesiœ another woman. Would that marriage be good or not, the woman being totally ignorant of the husband having been previously divorced? According to the sense of the proposition before them, he would say that the marriage would be good, because the proposition contained no negative words to the effect that the parties should not marry elsewhere. But suppose it was meant to alter the words, giving them a negative form, which would prohibit the parties marrying elsewhere, what would be the effect? The man and woman would go out to the world, and some years afterwards, perhaps, the man might contract a marriage with an innocent woman—it might be in a high condition of life, though that in no way affected the question. They had gone out into the world with the capacity to commit fraud of the cruelest kind, because the man might marry a woman who knew nothing of the prohibition that attached to him. In such a case the innocent woman would be deceived in the most cruel and heartless manner, because it would be no marriage at all, and her innocent offspring would be bastards. All this would spring from putting a man and woman in a negative situation, from which no benefit could result. Now, he did not think that a desirable state of things. His conclusion was that they could not arrive at a right decision on the great question they had to settle—that of the reluctance of clergymen of the Church of England to marry divorced persons—without having regard to the Amendments of the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole), and that of the gallant Major the Member for Harwich (Major Warburton). He had pointed out one difficulty arising from the proposition before them. He would shortly advert to another. Marriage might be solemnized in three or four different ways according to the law. There was the form of celebration which took place in the face of the Church of England; but another was by the different clergymen of Dissenting denominations in registered chapels,—as, for example, in the chapels of Quakers, in the synagogues of the Jews. Now, did his hon. Friend mean

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  to say that divorced parties were not to go and be married in a chapel belonging to their own persuasion? And yet his Amendment would prohibit all such marriages. His humble advice was not to try the great question of the scruples of clergymen of the Church of England, which they had to determine by the proposition now before the Committee, but to let that point be tried on the other Amendments to which he had referred. He desired to approach that question with the greatest possible deference to the opinion of the large body of clergymen who had signed the declaration, but he did not think that this Amendment afforded the best opportunity for discussing it, and he hoped the hon. Baronet would withdraw his proposition and take the discussion on this important matter on one of the other Amendments before the Committee.
  MR. BERESFORD HOPEsaid, he rose to express his thanks to the hon. and learned Attorney General for the calm tone in which he had approached this question; but he could not help thinking that the Amendment now before the House offered the least invidious mode of effecting the object in view. It would avoid the possibility of the clergy in one place taking a different course from the clergy in another, and all the inconveniences to which such a conflict of practice would give rise, by leaving one clergyman popular with one set of persons and unpopular with another, for that for which his neighbour would be popular with those in whose eyes he was unpopular, and vice versa. As the hon. Baronet the Member for the University of Oxford observed, this country will have sooner or later to come to the principle of the civil marriage; why then not now admit this instalment? As to the picture which the hon. and learned Attorney General had drawn of the man who having been divorced in early life, and afterwards not wishing to betray this fact in his history, got married in church, he must observe that he cannot but think that his right hon. Friend who drew the words had purposely adopted such moderate language as would not render such a union void, however contrary to law it might be in its performance. Such a case would be on all fours with what every one who attended to the condition of the people knew was not uncommon, a minor by false pretences obtaining a marriage licence, representing himself to be of age. The person committing this act rendered himself liable to
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  punishment, and yet his marriage stood good—fieri non debet sed factum valet. He had unlawfully procured a lawful wife. So in the case which the hon. and learned Attorney General drew, it must be observed, that the man, who could conceal from the future partner of his life so grave a circumstance in his career, could not be a man of very refined feelings or high honour. In fact the analogy was complete. For such an exemption as that now claimed there was abundant Parliamentary precedent, in a question referring to a change in the law of marriage. In the year 1849 the right hon. Member for Buteshire (Mr. S. Wortley) carried a Bill through that House for legalizing marriage with a deceased wife's sister, in which was contained a clause exempting clergymen from penalties for either celebrating or refusing to celebrate such marriages. The Bill passed through the Commons and was lost in another place. Well, the year after, the same right hon. Member re-introduced his Bill, which again passed the Commons; but in this Bill he made still further concessions to the clergy, and instead of the clause of the year before—similar in principle to that before the House at present—he introduced one to maintain the discipline of the Church, as before, and thus prohibit clergymen from celebrating such marriages, and the House upheld him in this still larger boon to the Church. What was therefore now asked for was a concession to the Church less than that which the House of Commons in 1850 thought it right to concede.
  MR. NEWDEGATEsaid, that the able argument of the hon. and learned Attorney General had convinced him that this Amendment would accomplish too much. By adopting it the House would plainly state that it meant to continue in the course which had been too long followed, of considering marriage merely as a civil contract. He was afraid that in providing against the evil consequences of the crime of adultery, Parliament would be lending a vital sanction to its commission which the Church Catholic had universally refused. He hoped that the House would not thus separate itself from the influence of Christianity—an influence which ought to be upheld as a corrective against the dangerous tendencies of the Bill. The Church had mercifully modified the doctrine of iudissolubility of marriage to meet the weakness of human nature. He trusted that the Committee would do nothing which might endanger the connection between Church,

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  and State, or, if they preferred the expression, between the State and Christianity; and that they would show as much respect for the conscientious scruples of clergymen of the Church of England as had already been exhibited for those of Dissenters and Roman Catholics.
  MR. GRIFFITHsaid, he considered the argument of the hon. and learned Gentleman unanswerable, and he should, therefore, oppose the Amendment, because it would be unjust to punish an innocent husband, and still more an innocent wife, by refusing them remarriage except in the office of a registrar.
  LORD JOHN MANNERSsaid, although he could not but compliment the hon. and learned Attorney General upon the singular ability and moderation with which he had conducted his argument upon this occasion, he must, nevertheless, dispute the position of the hon. and learned Gentleman, that by the adoption of this Amendment the House would deliberately express the opinion that, according to the doctrine of the Church of England, marriage was indissoluble. On the contrary, the Amendment kept out of sight all allusion to the doctrines or discipline of the Church. The Bill itself compelled them to discuss marriage, divorce, and remarriage as matters of purely civil concern. The other objections which had been urged against the Amendment of his hon. Friend by the hon. and learned Attorney General were not, he thought, of that magnitude to induce the Committee to decline further consideration of the subject. There was one objection taken by the hon. and learned Attorney General which he did not clearly understand, and that was, the objection which he had taken to the words of the clause as they stood in an affirmative sense, while he had laid greater stress upon certain negative words, which, he said, ought to be introduced in order to carry out the object of his hon. Friend. Now, the whole argument of the hon. and learned Attorney General had proceeded upon the assumption that it was necessary that those negative words should be inserted, and he was bound to admit that he had never heard any argument more clear or comprehensive than that by which the hon. and learned Gentleman had demolished those words. The Committee, however, must remember that the suggestion of the insertion of those words had not emanated from his hon. Friend, but from the hon. and learned Attorney General himself. Well, then, the
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  hon. and learned Attorney General had referred to the case of Dissenters, and had stated that they would not, if they came within the operation of this clause, be able to have the ceremony performed according to their own rites; but he thought that his hon. Friend had clearly pointed out that, under the provisions of an Act which was passed last year, the members of every Dissenting Communion had full right, after the marriage in the registrar's office, to have a religious ceremony performed in accordance with their religious persuasions. He did not think, therefore, that the clause would have that influence upon Dissenters which the hon. and learned Attorney General appeared to suppose. For his own part, he considered that the Dissenters had almost an equal interest with members of the Church in the matter, and he had not been at all surprised that they had joined in petitioning aginst certain clauses of the Bill. He would, however, wish particularly to direct the attention of the Committee to the main point at issue, which was, whether the hardship which would be inflicted upon those unfortunate persons who, with no fault on their side, had suffered from the commission of adultery, was so great as to outweigh all the advantages which might arise from settling the question in a manner which would be in accordance with the feeling and the opinion of a great majority of the people of this country. For his own part, he considered that the advantages would outweigh the hardship which would be inflicted, and he should be glad to see the Committee settle the question in an amicable way and in accordance with public feeling and opinion.
  MR. ADAMSremarked, that he considered it advisable to withdraw the Amendment, and to allow the Committee to proceed to the discussion of one of the Amendments which it was intended subsequently to propose. The Committee would find, that if facilities were afforded for the solemnization of marriage before a registrar, it would lead to the neglect of that religious sanction of the ceremony which they must all desire to promote. Besides, he did not think it right that the innocent parties to a suit for divorce should be compelled to forego that sanction, and have the brand affixed to them that they were so degraded as to be unfit to participate in the ordinary ceremonies of the Church; and, while he was disposed to pay the utmost respect to the conscientious scruples of the clergy, he should venture, for the

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  reasons which he had stated, to suggest to the hon. Baronet the Member for the University of Oxford (Sir William Heathcote) the expediency of withdrawing his Amendment.
  LORD LOVAINEsaid, if the Amendment were persevered in he should feel it to be his duty to vote for its adoption, although he could not help regarding it as a hardship that innocent parties should not be enabled to secure for the marriage contract the benefit which was to be derived from its solemnization in accordance with the ordinary rules of the Church.
  MR. BRISCOEsaid, he would express a hope that the Committee might be able to come to a decision upon the question before them without any party being entitled to claim the victory. He found that 11,000, or two-thirds of the whole body of the clergy, had petitioned respecting this clause, and he was sure that the conscientious scruples of such a body of men would not be ignored by the Government.
  MR. SPOONERobserved, that he had hitherto been a silent, but by no means an indifferent participator in the proceedings which had taken place in reference to the Bill. He had been so, because the subject with which it proposed to deal was one, in his opinion, of a most difficult character. He now rose, however, to urge the withdrawal of the Amendment, to which he objected, because it included the innocent as well as the guilty. If it had been confined to the guilty it should have had his support; but he could not assent to inflicting great hardship upon those who were entirely innocent. He believed that divorce was not only permitted, but, by implication, was commanded, by the Word of God, in the case of adultery, but in that case alone. And when there was both Scriptural and Parliamentary right to have a marriage declared null and void, it would be most unfair to debar innocent parties from having their marriages solemnized by the Church. He therefore trusted that the hon. Baronet would withdraw his Amendment, and allow the question of relieving the conscientious scruples of the clergy to be raised on the Amendment of his right hon. Friend the Member for the University of Cambridge (Mr. Walpole). He hoped and believed that the Committee would grant this boon, which was so earnestly asked by the clergy, and which he thought it was the imperative duty of Parliament to grant.
  MR. MALINSsaid, he also would join
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  in the general request that the Amendment should be withdrawn, in order that the sense of the Committee might be taken either on the Amendment of his right hon. Friend (Mr. Walpole), or that of the gallant Member fur Harwich (Major Warburton).
  SIR WILLAM HEATHCOTEsaid, it appeared that one part of the Amendment, which was directed towards the discouragement of the remarriage of divorced persons, was not generally acceptable, and that the other part, which proposed to relieve the clergy, met with considerable favour. In the opinion of many hon. Gentlemen the latter question was more capable of being advantageously raised on other Amendments, and he was, therefore, ready to withdraw his Amendment to make room for them.
  Amendment, by leave, withdrawn.
  MAJOR WARBURTONsaid, he would submit to the Committee that there would be little practical inconvenience from the clergy being exempted from the compulsory solemnization of the marriages of divorced persons, as many of them might be willing to celebrate those marriages; and if not, the registry office would be still open. The condition of a clergyman of the Church was different from any other individual, inasmuch as he could not recede from the office which he assumed, and it should be also recollected that no clergyman at the time of taking orders, was aware that he was about to incur this responsibility, because it was, for the first time, about to be made part of the written law of England that divorced persons might marry again. He would appeal to members of the Church of England to protect the feelings of their clergy as they would protect their own, and to those who were not members of the Church of England, in the name of religious freedom, to protect the feelings of the clergy, remembering that their forefathers knew, only too well, what it was to suffer for conscience' sake the pains and penalties of the laws of England, He begged to move the Amendment of which he had given notice, adopting an Amendment of the noble Lord the Member for Marylebone (Viscount Ebrington) which would protect the clergy in case of their solemnizing, as well as in the case of their refusing to solemnize, these marriages.
  Amendment proposed, at the end of the clause to add the words
  "Provided always, and be it Enacted, That no Priest or Deacon shall be liable to any suit,

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  penalty, or censure for refusing to solemnize the marriage of any person who shall be divorced by virtue of this Act."
  Question proposed, "That those words be there added."
  MR. WIGRAMsaid, the claim of the clergy was a claim of justice. Could any candid or impartial man, looking attentively through the marriage service of the Church of England, as settled by the Act of Uniformity, conscientiously say that every clergyman could read it over persons one of whom was divorced? It commenced with a solemn invocation to the parties, as in the presence of Almighty God, that they would declare any cause or impediment to their marriage, and towards the conclusion, it pronounced marriage to be so constituted by Him that it could never be dissolved. The words were unequivocal and unambiguous, and a minister of the Church of England might justly accept them in their literal form, without explanation or modification. Let them consider the position of a minister who had to read that service over two of his parishioners if he had previously read it over one of them, and knew that he or she had committed adultery and violated the marriage contract, Could that clergyman, with any satisfaction to his conscience, invoke that person, as in the presence of the Almighty, to declare whether there was any lawful impediment to his remarriage? He was persuaded that a great majority of the clergy would feel that they were making a mockery of the marriage service if they were to read it over parties who had been divorced. A plain appeal was made to the justice of the Legislature. The Rubrics of the Church were held to be engrafted on the Act of Uniformity, and, by them, a minister was compelled, not to read any service he pleased, but to read the particular marriage service prescribed by the Church, over all persons whom he joined in marriage. Now, whereas the marriage service was framed at a time when marriage was held to be indissoluble, the Legislature was now asked to introduce an entirely new state of things, and to declare the dissolubility of marriage. In these circumstances they were bound to take one of two alternative courses, either to modify the marriage service of the Church, or else to give the clergyman an option as to whether he would read it or not. It was idle at that period of the Session, to think of qualifying the services of the Church, and they were, therefore, forced to adopt the other course of saying that those clergymen who
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  conscientiously objected to reading the existing marriage service over persons who had been guilty of adultery should not be compelled to do so. No person could look at this question without feelings of apprehension. The clergy, no doubt, would be, as a body, most reluctant to act in opposition to the law of the land; but, on the other hand, he knew there were large numbers with whom it would be a matter of conscience, and who would consider themselves forced to determine whether they were to respect first the law of God or the law of man. That was not a fair position in which to put the clergy of the Church of England. Let it be remembered that Baron Von Gerlach, in his speech to the Prussian Chamber, alluded to the fact that the Prussian clergy, without the sanction of the Church, would not solemnize such marriages, although enjoined to do so by the law of the land. We were, therefore, not without experience. He thought it was extremely desirable, also, as a matter of mere policy that the clergy of the established Church should have the option, as the ministers of every Dissenting denomination had the option, of giving or withholding the religious blessing upon the remarriage of divorced persons. Baron Von Gerlach remarked that latterly, since the clergy had refused to marry divorced persons, there had been a most remarkable diminution in the number of divorces in Berlin, and he attributed that diminution to the course taken by the ministers of religion. Now, whatever might be our opinion of the probable effects of the present Bill, nobody could deny that its powers might be abused; and surely if we could prevent men, by a religious influence operating upon their minds, from making a bad use of the liberty which it was now sought to confer upon them, we ought to avail ourselves of every means of accomplishing that object. That about three-fourths of the whole clerical profession had joined in a memorial to Parliament was a striking fact, which he was sure the Government, who were inclined to respect the feelings of the country, would not overlook or underestimate. It had been said that the clergy never made any difficulty before. That was true; but the reason was, that the question was now raised for the first time. From the time of the Reformation there had been altogether about 300 divorces. It was exceedingly improbable that there had been more than 100 remarriages, and, of these, he ventured to

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  say, that not above 50 had taken place in this country. The probability was that in many cases the clergymen did not know that the parties had been divorced, and it was quite absurd to say that the few instances which might have occurred of clergymen negligently reading the marriage service over parties who had been guilty of adultery in former marriages formed any precedent against the claim now made by the whole profession. Now that it was proposed to make a general law the clergy came forward with a demand to have their conscientious scruples respected, and he earnestly trusted that their appeal would not be in vain.
  VISCOUNT EBRINGTONsaid, he could not concur in the views expressed by the last speaker, though he was happy to find that they coincided in the Votes they should give if the Government, as he hoped they might not, resisted the Amendment. He did not share in the opinion of the hon. and learned Gentleman with respect to the marriage service, nor did he believe that the scruples he had mentioned were so universal among the clergy as he supposed. The conscientious scruples of the clergy were undoubtedly entitled to respectful consideration, but he was not an advocate of priestly domination, and therefore held that the House had power to pass laws which were binding upon the clergy. At the same time, things which were lawful were not necessarily expedient, and he had a grave objection to creating professional martyrs. He thought the best way to cut the ground from under the feet of all such persons would be to remove all reasonable grievances. He felt, therefore, that it would be unwise, as well as cruel, to encumber a useful measure with any clauses pressing heavily upon certain clergymen, as would be the case if no Amendment were adopted. They were bound to recognise and weigh the conscientious scruples of clergymen who entertained opinions that would prevent them from willingly marrying divorced persons as far as they could do so without danger to the State. At the same time in recognizing those scruples they should take care to avoid putting into the hands of the ecclesiastical authorities a weapon which would enable them to fly in the face of Parliament and to persecute such of the clergy who might feel inclined to comply with the provisions of the Act of Parliament.
  GENERAL THOMPSONwished to know what practical probability there was of any particular clergyman being made a
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  martyr in consequence of the act of the Legislature. It was not likely that a person who had been divorced, and who wished to marry again, would go to a clergyman who was known to entertain a repugnance to such marriages, while there would never be any difficulty in finding ministers who felt no such scruples. A person who had been divorced would not apply in a quarter whence he must expect refusal, and thus revive the publication of his misfortune, He (General Thompson) felt strong objections to forcing discreditable people to have recourse to the civil ceremony, and could not see why the civil ceremony should receive any artificial slight. He was inclined to believe that under it, a system of something like concubinage might arise, if pains were taken to assign that form of marriage to persons it was sought to discredit.
  MR. FOSTERsaid, that as a constant supporter of the Government through all the stages of this Bill, he would express a hope that the hon. and learned Attorney General would accept this Amendment.
  MR. AYRTONsaid, he was desirous of doing nothing that would wound the conscientious feelings of the clergy, but at the same time he thought this question must be regarded in another light also. He could not forget that the parish churches were not the property of the clergy, but of the parish, and a rector or vicar who entertained peculiar notions had no right to compel his parishioners to adopt those notions or to debar them from the use of their own church. If a rector or other reverend authority in a parish objected to perform such marriages as were referred to by the clause now under discussion, there was no reason why he should be forced to do so against his conscience, but at the same time he ought not to be allowed to prevent his curates from officiating if they did not share his peculiar ideas. The Amendment seemed to be intended to meet the scruples of those clergymen who had gone already half-way over to Rome, but who were unable to bring themselves to relinquish the temporalities of the Church of England. Some of these men, it appeared, objected even to remarrying the innocent party, and the Amendment would enable them to indulge their semi-popish notions that marriage was a sacrament. If the clergy were entitled to relief it should be granted, but only so far as justice required. Though he admitted that new duties should not be imposed upon a cler-

  1801
  gyman by Act of Parliament if those duties were repugnant to his conscientious opinions, he must at the same time claim the right to prescribe the conditions upon which the temporalities of the Church should hereafter be held; and whilst he would not interfere with the present position of clergymen, he thought they ought not to be allowed to receive other preferment without acknowledging and yielding obedience to the law of the land. It was true the Legislature ought not to interfere with the theological views of the clergy, but it had a right to interfere with and to regulate the disposition of Church property. He therefore submitted for the consideration of the House, whether a provision should not be introduced, limiting the exemption of the clergy from their obligation to perform the marriage twice to such preferment as they at present hold. The rights of the laity should receive as much consideration as the scruples of the clergy. If a clergyman had insuperable objections to perform what an Act of Parliament required him to do, there should be a provision in the Act to enable the parishioners to call in another minister who entertained no such scruples. It was an every-day practice for clergymen to allow other ministers, friends of the parties, to celebrate marriage in their churches, an example which might be followed, as he had suggested, with advantage of all parties. He would entreat the Government not to be led away by their feelings of respect towards the Church; and, if they adopted a course that was just towards the clergy, to take care, at the same time, not to trench upon the rights of the laity.
  MR. WALPOLE: The hon. and learned Gentleman who has just spoken says—and I am sorry he has introduced so undesirable a tone into this discussion—that, though it might be right to support a clause that would not be oppressive to the clergy, we must at the same time protect the consciences of the laity. That, he will permit me to observe, has been the spirit of our legislation down to this period. I have always had in view these two objects, and there is nothing in the Amendment now before the Committee that is in any way contrary to such a view of my duty. The hon. and learned Gentleman must forgive me for saying that I am not going to support the Amendment on any such imaginary ground as he supposes—namely, in order to allow any clergyman to remain in possession of all his rights and privileges as
  1802
  a minister of the Church of England, while he may secretly belong to another communion. I think the hon. and learned Gentleman will give me credit for saying, after the part I took in the Second Reading of this Bill, that I do not support the Amendment on the ground that marriage is indissoluble either by the law of God or by the law of the land. That question I have found very distinctly answered in the discussion of one of the most important points that could arise—namely, whether the adulterous parties ought to be allowed to marry again; for when it was proposed in 1809, as one of the Standing Orders of the House of Lords, that a clause should be introduced into any Divorce Bill prohibiting such marriages, the Archbishop of Canterbury, speaking not only for himself but for the whole bench of Bishops, said in the face of Parliament that there was nothing, in the opinion of the right rev. Bench, in the law of God contrary to those marriages, and that if they had been contrary to the law of God the Bishops would long before have interposed, if possible, to prevent them. I therefore take that statement as justifying me in saying that I proceed on no such grounds as that marriage is indissoluble. I believe that for the one offence of adultery, and for that one offence only, marriage both by Scripture and by reason ought to be capable of dissolution, and I further believe that it remains with Parliament to determine what tribunal shall be empowered to declare such dissolution. Having disposed of those observations, I may be asked to state on what particular grounds I support the Amendment now before the Committee. The hon. and gallant Member (Major Warburton) put his notice on the paper about the same time that I put mine, but, as he took some precedence of me in doing so, I willingly gave way to allow him to express his views to the House. I need hardly say that I am quite ready, in supporting his Amendment, to give the whole credit of effecting the object it has in view to the hon. and gallant Gentleman, or to the Government, if they will only introduce a clause that will prove acceptable to all parties. I support the Amendment on this ground—and I think it is one which it is impossible to controvert—that we have no right to impose on any person or any class of persons in this country the painful dilemma of obeying or disobeying one of two laws. Why do I say that that ground is unanswerable? Suppose this Bill pass into a law, the remarriage of the parties to whom

  1803
  it has reference will be expressly allowed by statute. The remarriage of the parties being expressly allowed by statute, any person would be at liberty to go to the clergyman of a parish and insist on his marriage, though he had been divorced, and not only insist on his marriage, but insist on its being performed according to the rites and ceremonies of the Church of England. Suppose the two adulterous parties go to the clergyman of a parish to be married, he requires of them to state in the most solemn manner whether there is any impediment to the solemnization of such marriage. In the words of the form laid down for this use, he says—
  "I require and charge you both, as ye shall answer at the dreadful day of judgment, when the secrets of all hearts shall be disclosed, that if either of you know any impediment why ye may not be lawfully joined together in matrimony ye do now confess it."
  Then what does the Rubric say—the Rubric being a part of the Book of Common Prayer, which every clergyman is here bound to observe? It says distinctly—
  "At which day of marriage if any man do allege and declare any impediment why they may not be coupled together in matrimony by God's law or the laws of this realm, and will be bound and sufficient securities with him to the parties; or else put in a caution (to the full value of such charges as the persons to be married do thereby sustain) to prove his allegation, then," and I call particular attention to what follows, "the solemnization must be deferred until such time as the truth is tried."
  Now, if you were to pass your Bill in its present form this may take place. If two adulterous parties demand marriage of the clergyman of a parish, any member of the Church, or any person who happens to be in the church, may object to the marriage as being contrary to the laws of God, and if such objection is taken the clergyman has no alternative, except to solemnize the marriage according as this law directs, or leave the marriage to stand over until "such time as the truth is tried," and thus hang the matter up in the Ecclesiastical Court. That is not a position in which we ought to place those parties. It is not that you require clergymen to marry parties as if it were merely a civil contract imposed by law, for then I should have agreed with the hon. and learned Attorney General, that when Parliament has passed a law we should require obedience to that law, though I say that before you pass a law you ought to look to the consequences of your Act and see that you are not imposing on any person or class of persons something That will be a strain
  1804
  upon their conscience in the discharge of their duty. If in the case of the adulterous parties it was only to be declared that the parties were married by civil contract there could be no objection raised; but what you are saying by this Bill is, that clergymen must use a form of words in giving effect to that contract which nobody who reads the service can say will be applicable to such a marriage. It may be said this is an exception, an exemption on privilege that is asked for, but it is neither the one nor the other. The clergy will be bound by the statute of Charles II., which requires them to perform the service in a particular manner, inapplicable to the present case as well as to this statute when it comes into operation; and will not this, I ask, cause an undue strain upon the conscience of the clergyman who thinks that such marriages are contrary to the law of God? How have you dealt with these cases before? How have you acted in the case of the Quakers? Supposing you were now passing a particular kind of oath to be taken by Her Majesty's subjects, would you think of making that oath applicable to the Quakers? What took place in the case of the Oxford and Cambridge University Bills? The members of those Universities and colleges were bound to take certain oaths with reference to the alteration of Statutes and so forth, and you appointed Commissioners with power to alter statutes in cases where the members of colleges could not do so, thus preventing any strain upon the consciences of the latter. Take, also, the numberless cases that have arisen with respect to the burial of persons who have committed the crime of self-murder. Till the reign of
  George IV. a felo de se was by law buried in unconsecrated ground, on cross-roads, and with stakes driven through his body. The Act of George IV. altered that law, and declared that the felo de se should be buried in the consecrated ground; but in a clause added to that Bill it was provided that no clergyman should be compelled to perform the burial service over him. Last year Parliament passed the Marriage and Registration Act, and in it were inserted two clauses which exactly laid down the manner in which these marriages ought to be performed. By the 11th clause it was provided that parties entering into a civil contract might apply to the minister of that denomination to which they belonged for the use of his chapel, and that minister might, if he chose, refuse it to them; and in the 12th

  1805
  clause it was provided that the parties might apply to a clergyman of their own persuasion to have the religious ceremony pronounced over them; but the clause neither said that he should not be obliged to perform that ceremony nor that he should, but simply that if he thought fit he might perform the ceremony after a civil contract had been entered into. This is exactly the privilege which I wish to be given to the clergy of the Church of England in this case. I appeal to the Government not to take a hasty step in this matter. I never knew an instance in which the Government held so completely the balance between what ought to be done and what ought not, as they do on the present occasion. An immense responsibility rests upon them and I am perfectly convinced that Parliament is prepared to follow their guidance if they direct their minds to the subject with a sincere desire to adopt the proper course. I hope they will consider, on the one hand, the oppressive manner in which the Bill will act unless some protecting clause is inserted on behalf of clergymen; and, on the other, will not deprive divorced parties, who wish to marry again, of the opportunity of having the religious ceremony performed, leaving the question as to where or by whom that ceremony should be performed for subsequent consideration. It is for the sake of the peace of the Church that I hope the Government will consent to this Amendment. Depend upon it, if you pass this proviso, you will always find some clergymen who will not be unwilling to celebrate these marriages; but if you don't, there are many clergymen who will look upon it as a strain upon their consciences which ought to be put upon the consience of no one.
  THE ATTORNEY GENERAL: During the whole of the discussions on this Bill I have never risen to address the Committee with a deeper sense of the responsibility of the office committed to me. I am most happy to state at the outset that I am authorized by my noble Friend at the Head of the Government to propose a qualified acceptance of the Amendment; and the qualification which I shall have to submit to the Committee is one which I think will meet with the approbation of all parties. But in doing so I must humbly beg the attention of the Committee while I feebly endeavour to lay before them those considerations which have weighed with the Government, and which I think have
  1806
  not yet been presented to the Committee. And in the first place I would ask the Committee whether, in adopting the Amendment now before us, we are not about to introduce a qualification which, speaking with all respect, may prove a snare to those for whose service it is proposed. You are about to give the clergy an exemption and an immunity, and upon what ground? Upon the ground of the sin, guilt, and criminality of the charge affecting those who come before them with a request that a holy and religious ceremony may be performed. But if an exemption be granted on those grounds where are we to stop? Will the clergy not reason most consecutively from this exemption when they say, "You have exempted us from doing violence to our consciences in this matter, but why do you leave us under the necessity of submitting to the violation of our consciences in others? Take the case of a man and woman presenting themselves before the altar for the solemnization of this sacred rite, the woman bearing on her body the palpable and prominent marks of illicit cohabitation; suppose them coming fresh from the bed of fornication to solicit the intervention of the clergyman; suppose some notorious freeliver, some gross, libidinous man, who has shaken off all feelings of decency, and who by his past life has outraged all the principles of morality, presenting himself for the solemnization of this holy rite, what would be the feelings of the clergyman? That is the result which you must contemplate, if in any single instance you make up your minds to emancipate the clergyman from the overpowering authority of the law. You are about to trust the clergy with the fatal gift—fatal it will be to the peace of many—of exercising the right of private judgment as to whether or not they shall dispense those holy rites which they have been commissioned to administer. This will pervade all the services of the Church. Take the burial service or the baptismal service. The Church of England clergyman will reason most consecutively according to his impression of the great principle which we are about to introduce into the Bill when he says, "I must decline to read the burial service over an unbaptized man—how can I commit to the earth 'in the sure and certain hope of a joyful resurrection' the body of a man who I know to have died in the commission of some great sin?" Will not his argument be, "You have sanctioned by this Bill the right of appeal from your law

  1807
  to that law which is written in my own heart; that appeal I have a right to make, but if I have a right to make it in this instance I ought to make it in others?" The result will be that he will no longer be the minister of religion dispensing those holy rites in full trust and confidence that, as he knows not the heart of man, that heart may have been penetrated with repentance, that the notorious sinner, even the sinner of yesterday, may have had a new heart given to him, and that in so short a space of time he may have come into a fit state of repentance to receive those holy ceremonies. That is the humble trust, confidence, and assurance, with which each minister of religion now dispenses those holy rites. But you are about to take away from him entirely that ground of his ministration, and you are about to tell him—for if the exemption is good in this case it is good in all others—that he ought not to be a minister of religion dispensing the holy rites of the Church to those whom he believes to be unworthy recipients of them. Consider for a moment the responsibility which is thrown upon him with regard to the administration of the Lord's Supper. I cannot approach the subject without a deep feeling of the importance which attends the decision of this question. I cannot presume to set up my opinions or my view of the matter against those of so many eminent and deeply pious men, and of so many most competent persons as are here assembled; therefore, I express with the greatest diffidence the feelings which I entertain in my own mind, and if I give way, I give way not from conviction, but purely in deference to the united body of authority, and to the judgment of persons whom I must assume have weighed this matter well, and who, deeply feeling for the interests of the Church of England, believe that those interests, and the happiness, the peace, and the quiet of her ministers will be promoted by the introduction of this principle. Well, God grant it may be so! but, though it comes from a feeble voice, I warn you of the things that must follow in its train; and I beg you to pause before you give to the clergy of the Church a fatal gift, which may be the very fount and origin of that dissension, that discord, and that rending in twain which God forbid that we should ever live to see! Now, assuming that these matters have been well weighed, and that the great majority of the Members of the House are impressed with the convic-
  1808
  tion that it is the duty of the Government to give way to this feeling, I will tell you how far I have advised my noble Friend at the Head of the Government to meet the request which has been made by the supporters of the Amendment. Permit me to descend to some details, and to call your attention to the fact that the proposition of the hon. and gallant Major will deal with both the parties to the marriage, the husband and the wife, the innocent and the guilty, and that the words as they are proposed will not affect the third person, the adulterer, the chief author of the guilt, or the adultress. Now, assuming that you desire only to relieve the clergyman from the painful obligation of pronouncing these holy words and this blessing on those whom he supposes are not yet recovered or awakened from a state of deep guilt and sin, I humbly suggest to you the adoption of words which I will propose. If these are accepted, my noble Friend will agree to the Amendment of the clause, which, as so altered, will run thus:—
  "Provided always and be it enacted, that no priest or deacon shall be liable to any suit, penalty, or censure, for refusing to solemnize the marriage of any person whose adultery or crime has been the ground of the dissolution of any marriage."
  Now, that will take in the case of the adulterer. Supposing the adultery is that of the wife, it will comprehend the wife and the adulterer, and neither the adulterer nor the adultress will have a right to demand the intervention of a clergyman for their remarriage. Then comes another consideration which my noble Friend desires, and I think with great reason and justice, should be regarded. It is that which was referred to by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton). Suppose two persons apply to the rector of a populous parish in London requesting him to marry them, and he, knowing their relative positions, declines to do so; and suppose they say, "We have lived in your parish, and therefore must come to this parish church to be married; if you are unwilling to marry us there is another priest or deacon of the United Church who will do so, and therefore you must not refuse us the liberty of being married in the parish church." With these two qualifications, the latter of which I have not expressed, as it must be the subject of a well-worded proviso, it is the wish of my noble Friend to bow to the general wish of the Committee, if it is the general wish, and to give way to the feeling which is represented as

  1809
  being so general and prevalent among the clergy of the Established Church. From respect and out of deference and regard to them, and in the earnest hope—to which I may add my most sincere prayer—that this may not hereafter be the cause of evil or of dissension, but may lead to happy results instead of to the evil ones which it was anticipated would follow the refusal of the Government—in that hoping and trusting spirit this Amendment is now proposed by the Government.
  MR. HENLEYsaid, he cordially joined in the expression of feeling which had been elicited by the manner in which the hon. and learned Gentleman had dealt with this grave and serious subject. He should hardly have risen were it not that he thought that the apprehensions of the hon. and learned Gentleman that this concession on the part of the Government might be a snare to the consciences of the clergy and might throw difficulties in the way of their performing many of the other ceremonies of the Church were not well founded. There was an essential difference between the cases to which the hon. and learned Attorney General had referred with respect to the performance of the burials and other services and that now under discussion. Every man who entered into the orders of the Church of England was obliged, before entering, to make himself well acquainted with the conditions upon which he was admitted, and therefore he had no right to complain that his conscience was affected by his having to perform any of the engagements which he undertook when he entered upon that solemn office. In this case, however, they were about to make a new law. Certainly there had from time to time been private Acts of Parliament—one, two, or three in a year—but they were now making a law of divorce, and while they were doing so they received a memorial from a vast number of clergymen stating that a strain was being put upon their consciences and requesting that it might be removed. The hon. and learned Gentleman himself must admit that between these cases there was a great gulf, and therefore, he (Mr. Henley) did not share in the hon. and learned Gentleman's apprehensions of future mischief. As to the case of a clergyman refusing to bury an unbaptized person, he was not aware that there was any law to compel him to perform the Burial Service in such a case. He did not know whether the Government wished the Committee to
  1810
  come to an immediate decision on the amended question. It would have been convenient if their determination had been announced a little earlier, but their proposition, from the spirit in which it was made, deserved every consideration, and he would beg leave to suggest that a short delay might greatly conduce to that most desirable result, an amicable settlement of this matter. He hardly knew what was the feeling of his hon. Friends near him, but, for his own part, he was quite ready to accept the first part of the proposal made by the hon. and learned Attorney General, and he was content to wait until the Report to decide the question of the use of the parish church, as referred to by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton). The subject was one which required careful consideration, and, for his own part, he would be glad to accept the proposal of the Government, which went a great way towards removing some of the objections which were entertained to the Bill.
  SIR WILLIAM HEATHCOTEsaid, that the hon. and learned Attorney General did not appear to him to take the same view which he had taken, and which was taken by the clergy, with regard to the difficulty under which they would be placed. The hon. and learned Gentleman had warned the Committee against opening a door which it would be difficult again to close, by giving the clergy the power of deciding whether they should in certain cases perform the rites of the Church, and he said that if they were allowed that power with regard to one ceremony of the Church they might assert a claim to exercise it with regard to others. Now, he saw no ground for any such apprehension. The position of the clergy, if the Amendment of the gallant Officer were agreed to, would be, not to inquire whether a person was too wicked to take part in a religious ceremonial, but simply to ascertain whether a certain fact had occurred. The word proposed to be added to the clause by the hon. and learned Attorney General introduced the very principle which he himself so strongly deprecated. According to those words a case like the following might occur:—An unmarried man might commit adultery with a married woman, and the husband of the woman might obtain a divorce. Suppose, then, that the man presented himself to be married according to the words proposed to be introduced by the hon. and learned Attorney General, the

  1811
  clergyman would use a certain amount of discretion as to the wickedness of the parties, instead of simply inquiring into the fact whether or not there had been a divorce. Now, that might be right or wrong, but it had been denounced by the hon. and learned Attorney General as a dangerous principle, and it was not the principle upon which the Amendment was founded. It appeared to him, therefore, that the words proposed to be added to the Amendment by the hon. and learned Attorney General would include the case of a man who had committed adultery, but who had never been divorced, and that they would give rise to great confusion.
  MR. WALPOLEsaid, he thought that according to the Amendment, and the words proposed to be added by the hon. and learned Attorney General, it would form no part of the duty of a clergyman to act upon what he had heard privately, or to use his private judgment, but all that he would have to look to would be whether there had been a sentence of divorce passed by the Court, and if there had been he would not be compelled to marry the parties.
  THE ATTORNEY GENERALsaid, that in consequence of what had been said at the six o'clock sitting he would move an Amendment almost in the very words of the former Motion of the right hon. Gentleman the Member for the University of Cambridge.
  "That no clergyman in holy orders of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved upon the ground of his or her adultery."
  MAJOR WARBURTONsaid, he did not think that the proposal of the hon. and learned Attorney General would satisfy the objection entertained by the great body of the members of the Church of England, but he would leave his Amendment in the hands of the Committee; and if it was their pleasure that it should be withdrawn, he would be prepared to withdraw it.
  MR. BERESFORD HOPEbegged to suggest to the learned Attorney General the addition of the words, "during the lifetime of the innocent party."
  MR. CRAUFURDsaid that, by the late alterations in the law of marriage, marriage had been made a civil contract, and therefore, he could not see why any positive obligation should be imposed upon the clergy of solemnizing matrimony between any persons whatever.
  LORD JOHN MANNERSsaid, he must
  1812
  express a hope that the Committee would not be called upon at once to decide upon the merits of an Amendment so important as that which was embodied in the proposition of the hon. and learned Attorney General.
  MR. WIGRAMasked, whether it was the intention of the hon. and learned Gentleman to take the sense of the House upon the proviso of which he had given notice in Committee, or upon the bringing up of the Report? [The ATTORNEY GENERAL: In Committee.] He wished also to suggest to the hon. and learned Gentleman the propriety of confining the use of the parish church under the operation of the proviso to parishioners alone, and of not allowing strangers to the parish to have access to it for the purpose of solemnization of marriage.
  MR. AYRTONsaid, he wished to say a few words by way of personal explanation with respect to a statement which he had made the previous day, to the effect that under our forms of ecclesiastical procedure the parties to a suit were examined upon oath, except in reference to the fact of adultery. The correctness of that statement had been denied, but he found that the authority of Dr. Lushington went to establish its accuracy. The hon. and learned Gentleman then read a passage from the recorded testimony of Dr. Lushington upon the subject in support of his assertion.
  The House resumed. Committee report progress, to sit again this day at six o'clock.

  MILITIA BILL.—CONSIDERATION.
  Order for the consideration of the Bill, as amended, read,
  COLONEL NORTHsaid, he would take that occasion of calling the attention of the hon. Baronet the Under Secretary for War to the expediency of supplying the men belonging to the 7th Hussars and the Artillery, who were about immediately to embark for India, with a quantity of cotton, which they might during the course of the voyage employ themselves in converting into cap covers, instead of waiting to receive those necessary articles until their arrival in the East. There was always a number of tailors and "handy men" attached to each regiment, who could not, in his opinion, while at sea be better occupied than in making these covers.
  SIR GEORGE GREYsuggested that, as it was within a few minutes of four o'clock, the hon. and gallant Member had

  1813
  better postpone his observations to some future occasion, when the Under Secretary for War would be in a position to reply to them.
  Bill to be read 3o To-morrow.

  SERGEANTS' PENSIONS.—QUESTION.
  SIR JOHN TRELAWNYsaid, he would beg to ask the Under Secretary at War whether arrangements have as yet been come to, in accordance with the assurance given to him at the commencement of the Session, for placing the pensions given to sergeants upon the same footing as the privates in the army.
  SIR JOHN RAMSDENsaid, that in accordance with the promise he had given the case of the sergeants to which the hon. Baronet alluded was immediately and maturely considered, and his noble Friend at the head of the War Department was very anxious to meet the views which had been expressed upon the subject, but it was found that there were objections to apply the same rules to the sergeants as were applied to the privates, because, by bringing them under the warrant by which good conduct pay was awarded to privates, the sergeants would be brought under certain regulations as to forfeiture of pay which ought not to be applied to non-commissioned officers holding that high and responsible position. Although nothing was definitely settled, there was a proposition under consideration for obtaining the same object by different means.

CLOTHING OF TROOPS FOR INDIA.

  QUESTION.
  MR. STAFFORDsaid, he would beg to ask the Under Secretary for War a question as to two branches of the arrangements with respect to troops going to India, both of which have created considerable anxiety in the public mind. The hon. Gentleman was supposed to have stated, in answer to a previous question, that the troops had taker, a supply of suitable clothing with them, but he subsequently modified the statement by saying the cool clothing would meet them on their arrival at Calcutta. It was also rumoured that the troops were separated from the medical comforts and drugs which ought to attend them on the voyage. He wished, therefore, to ask whether the War Office have made arrangements for a supply of cool clothing during the voyage, and whether there is any truth in the report that the medical comforts and drugs were to be
  1814
  sent by ships not sailing at the same time or going in company with the ships conveying the troops to Calcutta.
  SIR JOHN RAMSDENsaid, he was very sorry to find that the answer which he gave to a question put to him by the hon. Member for Evesham (Sir H. Willoughby) on a former occasion was not quite clear. He understood that question to be, what provision was made of cool clothing for the troops in India, and therefore in his answer he did not intend to touch upon the question whether the clothes would go out with the troops or be found on their arrival there. He did not think the question put to him embraced that point, and thus his reply gave rise to a misunderstanding which he regretted. With regard to clothing for the voyage, by a regulation at present in force soldiers ordered to a foreign station received an advance of three months' pay. Out of that advance certain articles called "sea necessaries" were provided by the commanding officers, the total cost of which amounted to rather more than £2, and the balance of the pay was handed over to the commanding officer to be expended in any articles which might conduce to the soldier's comfort on the voyage. He might also add that from inquiries which he had made at the India Board, he was able to state that whenever a transport was taken up by the East India Company, the owner of the transport entered into a contract to provide sufficient awnings to spread over the deck of the vessel, so as to protect the troops from the heat of the sun. With regard to the report that the medical comforts were separated from the soldiers on the voyage, he had the authority of the Director General of the Army Medical Department for saying that in every case the medical comforts and medicines went in the same ship as the troops.

COMPENSATION FOR THE SUFFERERS BY THE INDIAN MUTINY.

  QUESTION.
  MR. DISRAELI: Sir, as we are not to be favoured this year with a statement upon the affairs of India, I must trouble the right hon. Gentleman at the head of the India Board with an inquiry which I should have deferred to that occasion if this year it were to be offered to us. My question has regard to the great losses of property incurred by British subjects during the recent tumults in India. I wish to know whether it is the intention of Her

  1815
  Majesty's Government to propose any compensation for those who were placed in such unfortunate circumstances.
  MR. VERNON SMITH: I may say, Sir, that there is under the consideration of the Court of Directors a scheme for affording compensation to the sufferers by the recent unfortunate events in India. That scheme has not been as yet matured, but as soon as ever it is brought before me, I need, I believe, hardly assure the right hon. Gentleman and the House that it will receive every possible consideration at my hands.

  COMMERCIAL RELATIONS WITH THE PORTE.—QUESTION.
  MR. HADFIELDsaid, he would beg to ask the First Lord of the Treasury whether (under 14th protocol, page 59 of Conferences of the Plenipotentiaries of Paris, 1856, relative to the Treaty of Peace) there has been a revision of the stipulations which regulate the commercial relations of the Porte with other Powers, or in the position of Foreigners resident in Turkey; and whether (agreeably to the recorded wish of the Plenipotentiaries) a deliberation has been opened at Constantinople since the conclusion of Peace between the Porte and the Representatives of other Powers, with the view of attaining the twofold object in such a manner as to afford entire satisfaction to all legitimate interests; and, if there has been no such revision and deliberation, whether this Country, in its commercial relations with the Porte, ranks amongst the most favoured nations in all commercial transactions, the residence of British Subjects in Turkey, fiscal and other Duties; and whether any beneficial or other change has taken place since the commencement of the War with Russia, or is intended; and are negotiations in progress to facilitate the commerce of this Country with Turkey?
  VISCOUNT PALMERSTON: It is quite true, Sir, that according to the agreement come to in Paris, there were to be steps taken by the Representatives of the different European Powers with the view of arranging more equitable, or, at least, more equal and more favourable conditions of commerce with Turkey; but the hon. Gentleman must be aware that from the time the Treaty of Paris was signed and ratified down to the present moment there have been a number of questions pending upon which the different parties to that Treaty have entertained differences of
  1816
  opinion. Some of those questions are still unsettled and under discussion. It therefore appeared to all parties premature to enter, at Constantinople, upon a course of communications which could not be carried to a satisfactory result, unless all the parties who shared in them should come to the negotiations without any difference of opinion upon other matters of considerable importance; nothing, therefore, has yet been done. Whenever the questions to which I have alluded shall have been satisfactorily and finally settled, then will begin those deliberations to which the hon. Gentleman has referred. In the meantime our commercial relations with Turkey rest upon the Treaty of 1838. No change has been made either during the war or in consequence of the war, and I am bound to say that, looking to the amount of the duties payable upon the imports and exports in our commerce with Turkey, the conditions of our commercial relations with that country may be fairly compared with those of any other nation. The conditions of our commerce with Turkey. in point of duties, are more favourable than those of our commerce with almost any other State with which we have commercial transactions.
  MR. HADFIELDsaid, he wished to know whether we stood on equal terms with Austria or Russia?
  VISCOUNT PALMERSTON: I am not prepared off-hand to state what are the comparative stipulations of Treaties, but my impression is that, as far as commercial transactions go, we stand upon an equal footing with either Austria or Russia.

  THE MILITIA BILL.—QUESTION.
  MR. STAFFORDsaid, he would beg to ask the noble Lord at the head of the Government when he intended to take the next stage of the Militia Bill? He might state that in a private conversation yesterday, the noble Lord told him that the Militia Bill would not be proceeded with last night. The conclusion he drew was, that the Government meant to make some other alterations in the Bill. What was his surprise to find that after he had left the House the Bill was passed through that stage at which he had given notice to the hon. Baronet the Under Secretary for War of his intention to make some remarks upon certain points connected with our military arrangements. Now he thought the noble Lord had been guilty of some-

  1817
  thing like sharp practice. (Cries of "Order.") Very well, he would move, to put himself in order, that the House do now adjourn. He had given notice to the Under Secretary for war that at the next stage of the Militia Bill he would not oppose the Bill or put himself in a hostile attitude towards the Government, but only ask certain questions with respect, to our military preparations, which he thought ought to be answered, and which, if answered, might remove an erroneous impression created in the public mind by; Ministerial statements. Perhaps the noble Lord at the head of the Government would state to the House why, after what he stated in private conversation yesterday, he had advanced the Bill a stage at a time when nobody expected it to come on, and also whether during the short period that remained of the Session—if he might presume that the Session was near its close after the additional entanglement and increased confusion which the debate of that morning had brought upon the Divorce Bill—he would give hon. Members an opportunity of eliciting from the Government some explanations with respect to our preparations for the war in the East. Several hon. and gallant Members, who were entitled to be heard, wished to address the House upon that subject, while he himself desired to call attention to the statement of the hon. and gallant Member for Westminster (Sir De L. Evans) that there were difficulties in the way of recruiting. Now he was prepared to combat that statement, and to concur with the noble Lord at the head of the Government in saying, that after the gathering in of the crops men would be got without difficulty. The conduct of the Government with regard to the pensions they had given to our Crimean heroes, coupled with their assurances that every attention would be paid to the comfort of the troops, and with the known disposition of the noble Viscount to deal justly and kindly with the private soldier, could not fail to induce landed proprietors and other gentlemen of influence in the agricultural districts to promote enlistment by every means in their power, and thereby further the purposes of Government. He ventured to submit, however, that if the price of a soldier landed in Calcutta was a matter of great importance—if, as the noble Lord the Secretary for War stated the other day in the House of Lords, the pick of our army had been sent to India to be
  1818
  exposed not merely to the attacks of an enemy, but to the trials of an unhealthy climate, the organ of the War Office in that House should take some opportunity—and no better opportunity could be afforded than the next stage of the Militia Bill—of stating authoritatively and definitely what arrangements had been made for securing the comfort of our troops, what improvements had been suggested by our fatal experience in the Crimea, and what modifications and changes had been introduced into the medical department of the army. What he now wished to ask; the noble Lord was, why he had advanced the Militia Bill a stage at a time when he promised not to proceed with it, and whether he would give hon. Members an opportunity of expressing their opinions upon the various points which he had just indicated?
  LORD ADOLPHUS VANE- TEMPESTsaid, he had no desire to go into the discussion upon the Militia Bill at that moment. He simply rose to testify that last night he received a private intimation from the hon. Baronet (Sir J. Ramsden) in reply to a question from him (Lord A. Vane-Tempest), that the Bill could not be proceeded with as yet. What was his astonishment, however, to find that at five minutes to four o'clock at the morning sitting, the Bill was "reported," at a moment when there was no one in the House but the hon. Baronet. He would submit whether it was in accordance with the proper mode of conducting their proceedings of advance so important a Bill under such circumstances?
  VISCOUNT PALMERSTONsaid, he was sorry to dispel the illusion which appeared to prevail in the mind of the hon. Member for North Northamptonshire that he was in order when he moved the adjournment of the House, and thereupon made a speech about the Militia. According to the strict forms of the House, which the hon. Gentleman was so anxious should be adhered to, he ought to have confined his observations to giving reasons for the adjournment of the House. Quitting that point, however, he (Viscount Palmerston) would say that he regretted that the hon. Gentleman had been deprived, through a misconception or inadvertence, of an opportunity of stating his opinion upon military matters in general upon that particular stage of the Militia Bill. The hon. Gentleman had asked him last night whether the Militia Bill would

  1819
  be taken that evening, to which he replied that it would not, as there was one point connected with it which he wished to examine. He was not sure whether or not he gave the hon. Gentleman to understand that the Report would be taken in the morning or the evening, but it was down on the Orders of that morning, as every one could have seen. The Report was brought up in the usual manner of unopposed business after the discussion upon the Divorce Bill had been suspended, at a quarter to four o'clock. However, as the hon. Gentleman and the noble Lord had appeared to desire an opportunity of addressing the House at large upon matters connected with our military affairs, he would take care that the Third Rending of the Bill should be fixed for a time when that opportunity could be afforded.
  LORD ADOLPHUS VANE-TEMPEST: On what day will the Third Reading come on?
  VISCOUNT PALMERSTON: I should think Thursday.
  Motion, by leave, withdrawn.

  THE ROYAL MAIL STEAM PACKET AND EUROPEAN AND AUSTRALIAN MAIL COMPANY.—QUESTION
  MR. MACARTNEYsaid, he would beg to ask the Secretary to the Treasury whether, previous to the 8th day of July last (upon which day a paper was issued by the directors of the Royal Mail Steam Packet Company to their shareholders, headed "Proposed Amalgamation of the Royal Mail Steam Packet Company and the European and Australian Royal Mail Company") any communication or proposition was made to either of said compapanies, directly or indirectly, by the Treasury, that in case of amalgamation the existing contracts to these companies would be further extended for two years; and if not whether such a proposition (originating with one or both companies) was submitted to him at any time previous or subsequent to such document being circulated; and if so, whether any decision has been come to thereon?
  MR. WILSONsaid, it was at all times an exceedingly inconvenient practice for hon. Members of that House to make partisan Motions with reference to companies out of doors, and to put questions to the Government which were founded on no public motives, and only bearing on the interests of private companies; it was making Parliament a vehicle for the ri-
  1820
  valry of companies out of doors, which ought not to be done, and he hoped the House would support him if he declined to answer questions of that description. Again, repeated Motions were made for returns at the instance of company against company, which filled the table with Returns which were of no public interest. He had no wish to withhold information, and he had no objection to answer the question of the hon. Gentleman, but he hoped that this sort of questioning would be discouraged by the House. The hon. Gentleman asked whether, previous to an agreement for an amalgamation of the Royal Mail Steam Packet Company and the European and Australian Royal Mail Company, any communication or proposition was made to either of the two companies by the Government. No such proposition had come before him officially; and all he knew was, that the two companies did send in a proposition on the subject of some contracts, and he was told that a Report had been made on the subject to the Admiralty, which would come before the Treasury to be considered, and when it did come before them it would be considered with reference to the public interests, and not with reference to the interests of one company or the other.
  MR. MACARTNEY,in explanation, said the hon. Gentleman having imputed to him partisanship in putting this question on behalf of the companies, he must beg to say that every step he had taken in reference to the subject of Australian postal communication was taken with reference to the public interests, and he returned with scorn the imputation that he had done so from private motives.
  MR. WILSONsaid, he did not mean to cast any imputation of partisanship on the hon. Gentleman in putting this question, and he was sorry if he had been supposed to do so; but he had only wished to point out the inconvenience of putting questions affecting private interests alone.

  THE COMMISSION ON PURCHASE IN THE ARMY.—QUESTION.
  MR. RIDLEYsaid, he would beg to ask the Under Secretary for War whether he had received from the Members of the Commission appointed to inquire into the system of Purchase in the Army, who have not appended their names to the Report, any reasons for their having declined to do so?
  SIR JOHN RAMSDENsaid, the hon. Gentleman was correct in saying that the names of all the Commissioners were not appended to the Report. A communication had been made to the Secretary for War by one of the Commissioners, the right hon. Gentleman the Member for Coventry (Mr. Ellice) stating his inability to agree to the recommendations in the Report and his intention to state his reasons in a separate paper. When that paper was received it would be laid on the table.

  DIVORCE AND MATRIMONIAL CAUSES BILL.—COMMITTEE.
  Order for Committee read.
  House in Committee. Mr. FIRZROY in the Chair.
  Clause 53 (Parties at liberty to marry again).
  THE ATTORNEY GENERALsaid, he would propose the following Amendment, to the proposed Amendment of the hon. and gallant Member for Harwich.
  Amendment proposed to the said proposed Amendment:
  By leaving out all the words after the words "Provided always," and inserting the words, "That no clergyman in holy orders, of the United Church of England and Ireland, shall be compalled to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnizing, or refusing to solemnize, the marriage of any such person," instead thereof.
  MR. SEYMOUR FITZGERALDsaid, he was inclined in the main to agree with the views so ably and temperately urged by the hon. and learned Attorney General in the course of the morning sitting. The result of the Amendments before the House might be, as the hon. and learned Attorney General had said, to confer a fatal gift on the Church, which, instead of bringing about peace, might encourage that spirit of disunion and dissension, which had manifested itself of late years in the Church; but, at the same time, it was impossible for that House to pass by without notice the memorial of the clergy. Of the two Amendments he preferred that of the hon. and learned Attorney General. The Amendment of the hon. and gallant Member for Harwich (Major Warburton) was a most dangerous Amendment. It proceeded upon the ground that marriage was indissoluble; but this Bill laid it down that marriage was dissoluble, and it would be a strange inconsistency to allow a certain portion, of the community to refuse obedi-
  1822
  ence to the law which was to bind all the rest on the ground that, in their opinion, it was founded on a mistaken principle. It would be completely opposed to the general feeling of the community to enact that the innocent persons who had been divorced should be deprived of a right which the law conferred upon them, simply because a certain body of men thought the law to be wrong. Suppose that a man of irreproachable character, who had had the misfortune to be divorced from his wife, should after that divorce be desirous of contracting marriage with a young girl to whom he was attached, and who regarded him as a fit and proper person to become her husband, would Parliament authorise the clergy to refuse to that young girl the solemn rites of the Church, which she had always been accustomed to regard with reverence? Holding these views, it might be supposed that he was for maintaining the clause in its strictness, but for the sake of peace, and out of respect for the conscientious convictions of that numerous body of the clergy who had signed the declaration, he could not refuse to make a concession. But this Amendment went further than the clergy themselves asked Parliament to go, for it was a matter of notoriety that the majority of those who signed the declaration expressed themselves in reference to the text in Scripture which condemned the remarriage of a divorced woman as adultery. The Amendment proceeded upon the ground of the indissolubility of marriage, for which the clergy themselves did not contend. He hoped the Committee would not adopt the Amendment of the hon. and gallant Member for Harwich (Major Warburton), proceeding as it did upon a principle which he regarded as most dangerous and utterly untenable; but that, taking into consideration the memorial of the clergy, they would consent to the Amendment of the hon. and learned Attorney General, which was limited strictly to the case of guilty parties.
  MR. KNATCHBULL-HUGESSENsaid, that, although compromises with reference to matters of detail were often exceedingly convenient, compromises of principle were not equally advantageous, and it appeared to him that the Amendment proposed by the hon. and learned Attorney General was essentially a compromise of principle. He could perfectly understand, though he did not sympathise with, a man who said, "The clergy should

  1823
  be the mere machines of the State, and as such should obey the law; they should have no discretion whatever, and we should not regard their conscientious scruples;" but he could not understand the man who said, "Your conscientious scruples are founded upon your belief that the law of your Church prescribes a certain course of conduct; I will attend to those scruples, and let you keep one-half that law, but the other half you must break." He did not himself believe in the indissolubility of marriage, but he did not think it necessary to urge that question at the present moment, as he did think it requisite to hold that principle to be able to support the Amendment of the hon. and gallant Gentleman. All he would say was, that if a large number of the clergy believed in the indissolubility of marriage he, for one, would not require them to do violence to their consciences. He regarded the question as essentially one of religious liberty. His hon. and gallant Friend who proposed the Amendment had appealed for support to hon. Gentlemen on that (the Ministerial) side on principles of religious liberty, and in that appeal he (Mr. Hugessen) joined. If professions were to be believed, religious liberty ought to be peculiarly dear to hon. Members on that (the Ministerial) side of the House; and he hoped that before depriving the clergy of rights, which they would not dream of denying to a body of Dissenting ministers, those hon. Gentlemen would consider whether the imputations of bigotry and intolerance, which they sometimes cast upon hon. Gentlemen opposite, might not be equally applicable to themselves. If they were to yield at all to the conscientious scruples of the clergy, as he thought they ought to do, they could not do it by halves. It was a most important question whether the clergy of the Established Church were to be the mere machines of the State—bewers of wood and drawers of water—or whether the Church of England was something more than a mere dead, dry appendage of the State. He would not accept the definition of the clergy as mere hewers of wood and drawers of water, and he demanded for them the same rights of conscience which were conceded to Dissenting ministers. For his own part, he would have preferred to the Amendment of his hon. and gallant Friend the suggestion of the right hon. Member for Oxford University (Mr. Gladstone), leaving it to the Church to determine whether the religious ceremony should
  1824
  be performed or not. They had been told that a large number of those clergymen who had petitioned for relief did not hold the indissolubility of marriage, but were only unwilling to perform the ceremony in the case of guilty parties; and therefore divorced persons would still possess considerable facilities for obtaining marriage according to the rites of the Church. He would cordially support the Amendment of his hon. and gallant Friend.
  MR. HADFIELDsaid, he wished the clergy to possess the fullest liberty with regard to religious principles, and the only condition he required was that they should leave the Church. The clergy, however, were but the servants of the State, and so long as they remained in the Church they must obey the orders of the State. A pretty condition the Church would be in if all the conscientious scruples of the clergy were allowed! What was that which was called the Reformation? Why, was it not occasioned by a desire on the part of Henry VIII. to effect a divorce from his wife? And as the Catholic Church could not conscientiously conform to the wishes of the Monarch, the great body of his clergy turned round and became Protestants. At the command of Henry's eldest daughter they turned back and became Catholics, and subsequently the second daughter issued her command, and the clergy turned back again, and became sound Protestants. If the request of the 9,000 clergymen who objected to the Bill was acceded to, the knell of the Church would be rung, for its uniformity would no longer exist. In 1662 some 2,000 clergymen seceded from the Church rather than subscribe to the Act of Uniformity? and why could not clergymen who entertained conscientious scruples, in certain cases, to the performance of a ceremony which they were required to perform, imitate that example, and enjoy all the freedom of free men in England? They were commencing a new system, and were proposing to give rights within the Church inconsistent with the character of that institution; therefore he should be glad to see some compromise settled among themselves, but he stood by the State, and said if the clergymen accepted appointments under the State they must adopt the creed of the State, and must not think for themselves, as the Parliament took on itself the duty of thinking for them.
  SIR FRANCIS BARINGsaid, he was not surprised at the observations of the

  1825
  hon. Gentleman, for it rarely happened that the name of the Church or of a Bishop was mentioned in that House that he did not take the opportunity of showing what a love he had for religious freedom. However, passing by his observations, he would advert to the proposition before the House. He could perfectly understand the great difficulty which the hon. and learned Attorney General and the Government must have felt when they had to deal with this question. It was, no doubt, a grave inconvenience that Parliament should enact a law in one clause, and should enact in a subsequent clause that a large body of clergy should be authorised not to fulfil the law; but there was another grave inconvenience, arising out of the fact that a large body of most respectable persons felt conscientious objections to solemnize a particular marriage, which Parliament declared was to be performed. Under these circumstances he thought, having regard a little to the lesson which had been taught in a neighbouring country, in consequence of insisting too strictly on the law, and not leaving enough to men's consciences, that the hon. and learned Gentleman had taken a wise course in yielding to the opinions of the clergy; but he did not understand why the Government stopped short, and why they only proposed to satisfy one-half instead of the whole of these conscientious objectors. By the concession they had made they had abandoned their strong ground—the necessity of carrying the law into force, and therefore he could not understand why the Government did not attempt to satisfy the scruples of those of the clergy who objected to perform the ceremony of remarriage because they considered marriage indissoluble, as well as the scruples of those who only objected to remarry the guilty parties? He himself shared in none of these objections; but the question was whether they would enforce the performance of the ceremony of remarriage upon those who deemed such remarriage contrary to the law of God. There seemed to be no advantage in the course proposed by the hon. and learned Attorney General, for on the one hand it did not exhibit firmness in refusing to yield to what might be represented as prejudice, and on the other it did not get rid of the grave difficulty involved in compelling persons to perform what they considered to be inconsistent with their duty to a higher Power than Parliament.
  Question put, "That the words, And be it enacted that no 'Priest or Deacon," stand part of the proposed Amendment."
  The Committee divided:—Ayes 56; Noes 77: Majority 21.
  MR. CRAUFURDsaid, he would now move the omission from the Amendment of the Attorney General of the words, "whose former marriage might have been dissolved on the ground of his or her adultery." Having admitted the principle that marriage was a civil contract, the Legislature, he contended, ought to regard it purely as such, and ought not to punish anybody for refusing to celebrate the religious ceremony.
  Amendment proposed to the proposed Amendment, To leave out the words, "whose former marriage may have been, dissolved on the ground of his or her adultery."
  MR. WILLIAM EWARTsaid, he should oppose the Amendment, as he was content to accept the clause as it now stood.
  SIR DENHAM NORREYSremarked, that by this clause they were putting the clergy above the power of the State. He thought this was one of the most dangerous principles, both as respected the Church and morality. Parliament gave law to the Church—and he thought it was monstrous that any body of men, who ought to be subservient to the House, should be allowed to refuse to many persons whom Parliament had said ought to be allowed to marry, and thus deprive those persons of the sanction of religion to their union, which was one of the best guarantees for the purity of their future lives.
  Question, "That those words stand part of the proposed Amendment, put, and agreed to.
  Proposed Amendment made.
  MR. WIGRAMsaid, he rose to move the addition of the following Proviso:
  "Provided that nothing in this Act contained shall enable any person whose marriage shall have been dissolved on the ground of his or her adultery, to contract marriage with any person with whom he or she shall, by the sentence dissolving the marriage, be found and declared to have committed adultery."
  The clause, as he had read it, was substantially and almost in words the same as the Scotch law, and he thought that circumstance was a reason to recommend it to the attention of the Committee,

  1827
  because nothing could be more undesirable than that in any two provinces of the empire there should be a different law of divorce. The Proviso was also in consonance with law on this subject in France and several other continental countries. He wished to remind the Committee that the wife might be seduced by the paramour holding out that temptation of marriage which may be the very ground of his attempts upon her virtue being successful. It was said the other evening that the practicability of a man marrying a wife whom he was attempting to seduce would be a safeguard against such attempts being made, because he would be afterwards bound in honour to marry her. That reason would have very great weight if in these cases they had prudent and honourable men to deal with. But in such cases they had neither prudent nor honourable men to deal with, and the man who could be guilty of seducing the wife of his neighbour would not shrink from violating those feelings of honour which ought to prompt him to offer marriage to the woman he had seduced. But the broad ground upon which he (Mr. Wigram) put the question was, that marriages of this character were a scandal to society. He thought the effect of such marriages must be that of holding out a gross and immoral example to the community. The spectacle of a man who had succeeded in robbing his neighbour of the most valuable treasure he possessed being allowed by the law of the land to enjoy the fruits of his robbery, was such a scandal to the community, and to morality, that he thought marriages of this sort should be absolutely prohibited. In the law of France it was laid down by the First Consul that "legislation must be immoral which permits a wife guilty of adultery to go and live with her seducer." He (Mr. Wigram) thought that was a broad sound view of the case, which ought to be adopted upon the grounds of morality, and for the good of society; and taking that broad view of the case, he should move the introduction of the Proviso which he had read.
  Another Amendment proposed at the end of the last Amendment, To add the words:
  "Provided also that nothing in this Act contained shall enable any person whose marriage shall have been dissolved on the ground of his or her adultery, to contract marriage with any person with whom he or she shall by the sentence dissolving the marriage be found and declared to have committed adultery."
  MR. D. GRIFFITHremarked, that he did not think any hon. Gentleman in that House would hesitate as to the course he should pursue in such a case; they would feel bound to repair, as far as possible, the evils they had done; and he did not think that they should legislate in opposition to the feelings of mankind.
  LORD JOHN MANNERSsaid, he should support the Amendment because he thought it would to a certain extent diminish the scandal which a Bill giving great facilities for obtaining divorce was calculated to create. Within the last forty-eight hours they had declared that this great crime was not to be treated as a crime, and was not even to be punished by a fine; and the Amendment of his hon. and learned Friend was at least a step in the right direction, and had, at any rate, a tendency to counteract evils which the Bill would otherwise cause.
  THE ATTORNEY GENERALsaid, that every consideration of morality and humanity compelled him to resist this Amendment. This was no new question. In 1809 the Archbishop of Canterbury stated that if the remarriage of the guilty parties was opposed to religion and morality the prelates of the Church ought to protest in the case of every Divorce Bill against the insertion of a clause enabling them to remarry. The House of Lords had uniformly allowed the guilty parties to many except in one instance—namely, that of Dr. Campbell, who had been guilty of incestuous adultery, when the prohibitory clause was retained in the Bill. That clause was, however, subsequently expunged by the House of Commons. In 1809, the case of a clergyman who had seduced the wife of one of his parishioners and carried on an adulterous intercourse with her, was discussed at great length in the Upper House; and in the Divorce Bill a clause was introduced forbidding the seducer to marry his victim. Yet even in that aggravated case, the House of Lords, after a full debate, determined that the only reparation that could be made to society was to place the adulterer under the obligation of contracting a marriage with the adultress. If the guilty parties could not intermarry, the adulterer must either adopt the heartless and inhuman course of throwing his victim upon the world, or live with her in a state of concubinage. One of these results must follow, and surely it could not be said that either of them was conducive to the interests of

  1829
  morality. The Committee ought, therefore, not to reverse the rule upon which the House had consistently acted for a period little short of a century, but should recognise the practical good sense of the observation of the hon. Gentleman below the gangway (Mr. Griffiths), namely, that the only atonement which the man who had committed the crime of adultery could make to his victim, or to society, was to marry the woman he had seduced. It was to be hoped that the hon. and learned Gentleman, would not persevere in his Amendment.
  SIR WILLIAM HEATHCOTEsaid, that the object of the Amendment was to discourage adultery, and it had the sanction of the law of Scotland, of France, and of Austria, which prohibited the guilty parties from intermarrying. The question was, whether society would not be more effectually protected by allowing those who had grievously offended against its laws to suffer the consequences of their own crime.
  MR. BOVILLsaid, he thought there was little hope of carrying any Amendment which the Government was determined to resist. At the same time the Committee ought to have another opportunity of protesting against this clause. It would be a direct encouragement to adultery if the Legislature laid it down as an inflexible rule that under all circumstances the guilty parties might reckon upon being permitted to intermarry. Under the present law no man or woman could count with certainty upon being enabled to marry if they committed adultery. They knew that the House of Lords would exercise a discretion in the matter. Take the case of incestuous adultery with a wife's sister; the Bill, as it stood, without any prohibition of any kind, would sanction intermarriage in the very instances where it had been forbidden. The original marriage being dissolved the parties were to be allowed to marry again; and the wife's sister having committed adultery, the wife's sister and the husband might intermarry.
  MR. CLAYsaid, he should oppose the Amendment. It had been argued that the law permitting the guilty parties to marry would promote immorality. Now, he thought it was to women they ought chiefly to look in these matters; for his own part he cared not what became of her cold-blooded seducer, who in such cases generally acted from premeditation, He
  1830
  firmly believed that an erring woman never calculated, before her first crime, upon the possibility of marriage with her seducer; but that on the contrary if, at the moment she was about to sin, she was reminded that thereby she would lose her husband, disgrace her children, and be stigmatized in society, the crime would in most cases be prevented. In cases of adultery nine-tenths of the crime was by the man, and nine-tenths of the suffering was sustained by the woman. Men had been obliged to adopt a code of honour in the place of law, and by that code the man was compelled to afford the woman he had seduced the best reparation in his power by marrying her. To pass the Amendment then would be a great boon to the seducer, who could no longer make this reparation, however excellent and repentant her subsequent conduct might be, nor allow her to obliterate, in any way the deep stain inflicted upon her honour.
  MR. AYRTONsaid, he would beg to remind the hon. and learned Member (Mr. Bovill) that the clause declared that the divorced parties might marry again "as if the prior marriage had been dissolved by death." In the case of incestuous adultery, to which the hon. and learned Gentleman had referred, the parties could not therefore marry again.
  Question, That those words be there added, put, and negatived.
  Upon the Question, that the clause, as amended, stand part of the Bill,
  MR. WALPOLEsaid, he would beg to express his hope and belief that the clause, as amended, would give general satisfaction. All the information he received led him to the conclusion that the great objection on the part of the clergy was to any clause compelling them to marry the guilty parties. He hoped he was entitled to say, on behalf of the clergy, that the representations which they had made to the House were of the most respectful kind. They had only stated that which they felt they were bound in the performance of a religious duty to make known to the House, and had they not done that they would have laboured under the conviction that they had acted wrongly. From what he had heard of the feeling of the clergy throughout the country, he thought he might say that the manner in which the hon. and learned Gentleman (the Attorney General) had conducted the discussion that day, and the concession contained in the Amendment which he had introduced that

  1831
  evening, would meet, with their consideration and their gratitude.
  SIR WILLIAM HEATHCOTEremarked, that he would not have said a word on this subject only for the observations just made by his right hon. Friend the Member for the University of Cambridge; but the intelligence which had reached his right hon. Friend from the clergy was very different from that which he (Sir W. Heathcote) had received. He was sure that every clergyman in the Church would be ready to give the Government credit for doing what it thought right; but his experience of the feelings of the clergy on the subject now under discussion, warranted him, he thought, in denying that the concession made by the Government that evening, did dispose of the difficulty under which the majority of those whom he had communicated with were labouring. As his right hon. Friend the Member for Portsmouth (Sir F. Baring) had said, that concession only met half the case. There was a certain portion of the clergy who were satisfied with not being compelled to marry the guilty party; but there were many others who believed that their sacred obligations prohibited them from marrying a divorced person, so long as the person from whom he or she was divorced was still alive. It was obvious that the concession of the Government did not meet that case at all. It might appear ungracious in him to make; these observations, as the Government had expressed their desire to conciliate the clergy; but the communications received by his right hon. Friend (Mr. Walpole) being at variance with those which had reached him, he was bound to tell the Government that they must not be under the impression that they had conciliated to themselves all those feelings of clerical opposition by the concession which they had that evening made.
  MR. HADFIELDsaid, that after Oxford and Cambridge had expressed opinions so adverse, the Government might see what was coming. If the representatives for the two Universities expressed such different views, what must they expect from the 9,000 clergymen who had signed the declaration? He could assure the right hon. Member for Portsmouth (Sir F. Baring), that he had as large an interest in the religious prosperity of the country as the right hon. Gentleman himself, and the motive that influenced him was the firm conviction that if they swept away
  1832
  these human institutions a degree of religious prosperity, such as this country never before enjoyed, would be the result.
  MR. MALINSremarked, that he was very gratified to hear the statement of his right hon. Friend the Member for the University of Cambridge. What he (Mr. Malins) had understood to be the feeling of the clergy, by the document which they themselves had drawn up, was that they did not wish to marry the guilty party divorced for adultery; but he did not understand the great body of the clergy as wishing to put their scruples to the extent of depriving those who were subjected to the greatest of human misfortunes—namely, a divorce in a case where they were the innocent party—of an opportunity of marrying again. He certainly did not understand it to be the feeling of the clergy that innocent and wronged parties, like those who were parties in a suit for a divorce, but had not committed the adultery, should be for ever debarred from presenting themselves at their parish church in order to be married to another party. He trusted that the clergy would take this view of the matter, that the conclusion which the House had arrived at on the point was the result of mature deliberation; and he further trusted that under those circumstances the opinion of the majority would be satisfactory to the country.
  MR. HENLEYsaid, he had not the advantage of such communication as that enjoyed by his right hon. Friend, and therefore could give no opinion, as to what, was the feeling of the majority of the clergy upon this subject; but he was certain that the threatened interference with the parish churches would create great and general discontent among them. He therefore hoped that the Government would not press the provision upon that subject which was sketched out by the hon. and learned Attorney General.
  MR. D. GRIFFITHnoticed the fact that the Amendment moved by the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole) was not that which he placed upon the paper on the 7th of August.
  MR. WIGRAMstated that it was at the suggestion of himself and others that his right hon. Friend altered the terms of his Motion. He would take this opportunity of stating that he had abstained from dividing the Committee upon his Amendment solely in order to save time.
  Clause agreed to.
  Clause 54 (No Action for Criminal Conversation).
  MR. BUTTsaid, that this was a question which he thought was not necessarily connected with this Bill, and which was of sufficient importance to have been considered separately. The action for criminal conversation had been the scourge of adultery, and he thought that very few persons would be willing to abolish this action without some substitute being provided for it. But, as the Bill now stood, no substitute whatever was suggested, He would remind the House of this danger. If they proposed to abolish the action for crim. con., they had no evidence whatever of the intentions of the House of Lords, and they had no security that any substitute would ultimately be provided. The opinions of a learned Judge who was engaged in the administration of the law had been cited. With all respect for that learned person, he (Mr. Butt) thought that no magistrate, however high might be his rank and character, who was engaged in the administration of the law, ought to deliver his opinion upon the existing state of the law; but, whether or not, the House of Commons were not to be influenced by such opinions. He believed, moreover, that that learned Judge's opinions on the subject were not shared by all his learned brethren. He had been told in the first place that it was disgraceful for a man to recover damages in an action of crim. con.; but was it not equally disgraceful to recover damages in an action of seduction, or of assault, or slander? and yet were the Committee prepared to abolish these actions, and without providing any substitute for them? The fact was, that in these cases a man was not trading in his wife's or daughter's dishonour, or trafficking in personal injuries or in loss of character, but he was asking the opinion of twelve of his countrymen as to what his conduct under the circumstances of the case had been; and the pecuniary recompense, if any, was a measure of his moral triumph. Again, it had been said that it was very unjust that a woman should be tried, as she virtually was, by this action without the right of being heard. Perhaps this acknowledged defect in the action might be remedied; but were there no other cases of a similar kind? Suppose a man brought an action against a newspaper for a libel in having accused him of adultery with a certain woman, and the newspaper were to plead justification,
  1834
  would the woman be heard in such a case? The rule was universal that, where one man had a claim against another, he could make that claim without necessarily bringing other parties before the Court. It had been further objected that disclosures were made which were injurious to public morality. But, surely, the evil would be as great under the new system, where every case of adultery was to be tried in open court. Or were the promoters of the Bill prepared to have every cause of divorce tried in secret? Whatever fantastic squeamishness—he could call it nothing else—certain people might have upon this subject, who were unwilling to believe that any evil existed in this world, as though, because they were virtuous, there were to be no more cakes and ale—he thought that the interests of justice, and even of morality itself, were advanced by this publicity. He had heard it said of other clauses in the Bill that they would afford a licence for adultery; but if it were said to the man who had been called the cold-blooded and calculating seducer, that in many cases he need no longer fear exposure or being compelled to pay heavy damages, that would indeed be giving a license to him which might strike deeply at the sanctity of the marriage vow. As the Bill came down from the Lords they were in this position—they enacted that no one should have a remedy unless he first obtained a divorce; and they created a most expensive Court and procedure for the purpose of giving him that divorce. In point of fact, they shut out the greater part of the middle find the whole of the humbler classes from any remedy whatever. They all remembered the irony of the Judge who, when sentencing a man for bigamy, said, "You ought to have brought an action for criminal conversation; then you ought to have promoted a suit in the Ecclesiastical Court for a divorce a mensâ et thero; then you ought to have presented a private Bill for a divorce a vinculo to the House of Lords; and then, when you had done all this, you might have lawfully married again. It is true that this would have cost you £1,500, and that you very likely had not got the money, but I cannot accept that as an excuse." No doubt that was a severe sarcasm, though perhaps not altogether becoming a Court of justice; but what would have to be said if the Bill passed? "There is a court in London, consisting of the Lord Chancellor, the three Chief Justices, and the Judge of the

  1835
  Probate Court. You must file your affidavits before that Court; and you must bring up your witnesses from Cornwall or Cumberland, and submit them to oral examination; and then, when the Court has granted you a divorce, the Judges may assess you some compensation." Certainly the sarcasm would be just as severe as that of the learned Judge which he had quoted. What they proposed to do was only to insert the present process, and invert it in favour of the adulterer. He (Mr. Butt) would earnestly beg the attention of the Committee to this, that they would be shutting out the poor man from every remedy, inasmuch as he could not possibly obtain any by the Bill which had been sent down from the House of Lords under a sum of £400 or £500. And let the Committee further remember this, that there was a very large body of their fellow countrymen who, from conscientious motives, would never come into their new court at all. If they abolished this action, what remedy would be left to the Roman Catholic, or to the man who believed in the indissolubility of marriage? He did not believe that the people at large shared in the opinions expressed against this action, as by its abolition they would take away the only remedy which the poor man possessed. It was admitted that at the close of the last century the speeches of' Erskine and Lord Kenyon, and the verdicts of juries in suits of this kind, had powerfully contributed to check the crime of adultery, which was then more common than it has been since. When they had made adultery a criminal offence it would be time to abolish this action, but till then he hoped it would be retained.
  Question put, "That Clause 54 stand part of the Bill."
  The Committee divided:—Ayes, 78; Noes, 46: Majority, 32.
  Clause added to the Bill.
  Clause 55 (Letters Patent, Records, &c. to be transmitted from all Ecclesiastical Courts).
  Motion made, and question proposed, That the Clause stand part of the Bill.
  MR. BUTTsaid, he rose to move that the Chairman should report progress, with the view of putting himself in order while he gave notice that as discussion upon the merits of the preceding clause had been prevented by accident, it was his intention to take the sense of the House with respect to it upon the bringing up of the Report.
  Whereupon Motion made and Question proposed, "That the Chairman do report progress, and ask leave to sit again."
  MR. MALINSsaid, that as the 54th clause now stood part of the Bill the action for crim. con. would be abolished, whilst the power of imposing a fine had been taken out of the 31st clause. Consequently a man might commit adultery with perfect impunity, so far as any pecuniary penalty was concerned, and he would not be liable to imprisonment, because the House had refused to make the offence a misdemeanour. He (Mr. Malins) knew that his hon. and learned Friend (Mr. Bovill), his hon. and learned Friend near him (Mr. Macaulay), and other hon. Gentlemen of great experience in actions of crim. con., had intended to address the House on the clause just agreed to; and he himself and others had relied upon them to state the views which were entertained upon that subject on that (the Opposition) side of the House, and in which he understood the hon. and learned Attorney General himself participated, not precisely in form, perhaps, but in substance, beyond all doubt. He said in substance, for this reason: that he understood it was the intention of his hon. and learned Friend to ask the approval of the Committee to some clause which would enable the Court or the party without the intervention of the Court, to submit as a question for a jury what pecuniary compensation should be paid to the man whose wife had been seduced, in the shape of a fine or some other way, so that the law would retain to itself the power, which he believed it to beneficially possess at the present time, of punishing the adulterer in the only mode in which it was possible to reach that class of persons. Now, he must say, that he could not help looking at the shape in which the Bill now stood with the greatest apprehension. Was he to understand that Government intended to let it remain as it was? Because if they did, and a man might henceforth commit adultery with impunity, instead of conferring a benefit it would inflict a curse upon society. He would therefore appeal to his hon. and learned Friend, to say what course the Government intended to adopt.
  MR. P. O'BRIENsaid, he thought there was reason for complaint on the ground that, in consequence of the abrupt manner in which the division had been called for, several gentlemen, including the hon. and learned Member for Guildford (Mr. Bovill)

  1837
  and himself, among others who had intended to address the Committee on the question then under consideration, were precluded from doing so. It was, he added, the more to be regretted that the expression of the opinion of the Committee should have been so restrained, inasmuch as the question started by the hon. and learned Member for Youghal involved many considerations of a serious kind. He would not now discuss the general question, but, in reference to a remark which had fallen from the hon. and learned Gentleman (Mr. Butt), he owed it to his co-religionists to say that they, the Roman Catholics, required no such protection for the marriage state as was supposed to be given by the action for criminal conversation.
  THE ATTORNEY GENERALsaid, the Committee would no doubt feel with him that it was quite necessary before proceeding further that the Motion of the hon. and learned Gentleman the Member for Youghal (Mr. Butt) should have been first disposed of, for the question was in this position, that the hon. and learned Member desired to restore the old action for criminal conversation. He confessed he was disappointed at the proposition of the hon. and learned Gentleman, for he (the Attorney General) thought the better way would have been to leave the clause as it stood, and, if it was the opinion of the Committee that any further proceeding should be adopted, to add that form of proceeding in the shape of a separate clause. The 31st clause, as it came from the Lords, proposed to give the Court the power of imposing a fine on the adulterer. He felt, however, personally adverse to that notion, partaking as it did of the character of criminal damages. He therefore thought of converting the fine into pecuniary damages either for the benfit of the husband or of the children of the marriage, or as a settlement on the unfortunate wife. But the hon. and learned Gentleman (Mr. Butt) interposed with an Amendment to strike the clause out of the Bill. He (the Attorney General) thought at the time that it was the intention of the hon. and learned Gentleman to give the husband compensation in another form, and he therefore thought it due to him to leave that part of the Bill entirely in his hands. Undoubtedly he (the Attorney General) would be sorry to restore the old action of criminal conversation. It was an opprobrious thing, because it was made a necessary condition of divorce. That,
  1838
  he thought, was unquestionably a disgraceful proceeding. It was again a most unjust thing, because it made the husband—and in that lay its opprobrium—sue for damages as a compensation for his dishonour, and yet it did not of itself profess to give him a divorce from the wife who had dishonoured him. He still remained a dishonoured person, because the woman continued still to be his wife. Then it was said to be unjust, because it was a proceeding to which the wife, however much she might be compromised by its issue, was no party, and therefore could not defend herself. But he was particularly desirous of abolishing it, because, if it was retained, there might be the greatest conflict between the determination of the jury in the action for criminal conversation and the determination of the new court on the question of adultery. He was not at all insensible, however, to the suggestion that the action of criminal conversation, or some such action, might be a much needed protection to the poor man. He would suppose, for example, the case of some great factory owner, who had in his employment a married woman of great personal attractions. Such a person might so place that woman in his factory as to give him great opportunities of soliciting her chastity. What was the protection which the husband had against such an act of dishonour? Why, undoubtedly it was the knowledge on the part of the person contemplating the seduction of his wife that the husband had it in his power to bring an action against him for damages. But, on the other hand, he could imagine a case where the husband would scorn the thought of receiving one penny of the adulterer's money, and might yet wish, above all things, that the wife who had dishonoured him should not come back to reside with her paramour in the place where he and his children lived. The husband in such a case might desire to obtain damages against the adulterer on another ground; in a great number of instances adulterers did not pay the damages awarded, and the verdict condemning them in damages would therefore operate as a punishment against them. In other cases the husband might desire to have damages either on his own account, or for the benefit of his children, or as a provision for the unfortunate woman herself. Again, many a man in humble life, the husband of a milliner, for example, whose industry greatly contributed to the maintenance of the family—

  1839
  might desire to have a compensation for the loss of a wife whose services had been so valuable to him. What he thought of doing was this—that when a husband presented his petition to the Court for a divorce he should state in that petition whether he desired to have damages assessed against the adulterer or not; and also, if he desired to have damages assessed, how he wished to have them applied—whether he desired to receive them himself, or to make them a settlement for his children or a provision for his wife. Then, on the hearing of the petition—which it should always be remembered would be heard before a jury—the jury should have the power, in giving their verdict, to determine whether any or what sum should be paid by the adulterer as damages, to be applied in the manner desired by the petitioner. That was the course he had endeavoured to indicate as the opinion of the Government on the subject, and he had thought that the hon. and learned Member for Youghal agreed with him in substance. He should have no objection to embody in an enactment, and bring it up to-morrow, that which he had indicated to the Committee, if it met with something like general acceptation; not that he wished to pledge any individual Member now to anything like a positive agreement in the suggestion.
  LORD LOVAINEsaid, he would be glad to have information on one point regarding the pecuniary mulct to be inflicted on the adulterer. He wished to know, supposing a husband suing for a divorce had no children, and desired no application of damages for himself, or as a provision for his wife while she remained in the hand of the adulterer, whether in that case the Court might not have the power of itself to assess and apply damages?
  MR. BUTTsaid, he thought that the Committee was agreed on one thing, and that was that the decision just come to was most unsatisfactory. It had been an accident, and it was right that the Committee should know the extent of that accident. As many as five or six hon. Gentlemen had expressed their readiness to speak in support of his proposition. He agreed in what had fallen from the hon. and learned Attorney General, except as regarded the fact that he had undertaken the duty of framing a clause. The hon. and learned Gentleman had now intimated his intention to bring up a clause which was not entirely satisfactory, as it limited
  1840
  the right to damages to the case where the husband sued for a divorce; and at the same time the proceeding for divorce was made expensive, whereby the poor man would be deprived of the opportunity of obtaining damages. So also would all those persons whose conscientious convictions precluded them from seeking a divorce. He was quite ready to say that if the hon. and learned Gentleman would propose any proceeding which would get rid of the opprobrium of the action now known to our law; which would not entail the necessity of seeking for a divorce, and which would be cheap and accessible to the poor man, giving him the same power as he now had of punishing the master who seduced his wife, he (Mr. Butt) would cheerfully accede to it. He would not object, too, if the hon. and learned Attorney General should propose, in addition to the payment of damages, that such a cold blooded master as he had described should be placed in the pillory. But unless such a clause were brought up, he would adhere to the pledge he had given to endeavour at a future stage of the measure to preserve the remedy which protected the sanctity of the poor man's home. He was ready to give the hon. and learned Attorney General credit for proper feeling on this question; but he doubted whether it could be satisfactorily dealt with in this Bill, at the very end of the Session. This was no mere personal conflict. They were abolishing a form of action which had long existed; and it might as well be done next year as this. He would therefore suggest that the 53rd clause should be given up, and this would greatly facilitate the passing of the Bill. It was said that this Bill was to merely give to a new Court the powers of an existing tribunal, and the abolition of the action for crim. con. formed no necessary part of it. At this stage of the Session the question could not be fairly discussed. It was one that stirred the passions of all men, and came home to the hearts of every family, and they ought not on such a question to accept, without discussion, the recommendations of a Royal Commission or the decision of the other House. In Scotland, where the divorce was most easily obtained, the action for crim. con. still existed.
  VISCOUNT PALMERSTONsaid, his hon. and learned Friend the Attorney General had stated to the Committee that he would, on a future occasion, bring up the clause of which he had stated the purport.

  1841
  He would, therefore, suggest that the Committee might go on with the Bill, and postpone until the clause was produced the discussion which would naturally arise upon it—a discussion which must be fruitless, seeing that the clause was not before the Committee. They had spent some time already, and he would suggest that the Motion for reporting progress should be withdrawn, and that they should go on with the Bill.
  LORD JOHN MANNERSsaid, he must remind the Committee that the Government were not altogether free from blame as regarded this unfortunate discussion. After the hon. and learned Gentleman (Mr. Butt) had addressed the Committee every one expected some explanation from the hon. and learned Attorney General on this most important subject, but instead of this the Committee had been allowed to go to a division in a state of helpless ignorance as to the intentions of the Government. It was impossible that that division could be regarded as an expression of the deliberate opinion of the Committee, because it was taken under circumstances which deprived it of any value whatever. The noble Lord now said they ought to reserve discussion until they saw the Attorney General's clause; but how could they be expected to give this important question anything like duo consideration if they relegated it till the last moment? As to the clause shadowed forth by the hon. and learned Gentleman, it appeared to him (so far as he could collect its contents) to be open to one fatal objection. The proposal was that no man should be allowed to sue his wife's seducer for damages unless he stated his intention in the petition and declared how he wished the money to be applied. But a man of high spirit would not consent to ask a court of law to appraise his damages, and the inevitable result would be that he who seduced the wife of such a man might do so with perfect impunity. This check upon the commission of adultery would, in such a case, therefore, be wholly removed. Now, under the present law, the objection he had stated did not apply, because no man could obtain a divorce unless he obtained damages, and therefore a husband was compelled, if he wished to obtain relief at all, to bring this action.
  SIR GEORGE GREYurged the Committee to proceed with the discussion of the other clauses; they would then sooner
  1842
  be able to consider the new clause. It was the ordinary course to bring up new clauses after a Bill was gone through.
  MR. WIGRAMsaid, it was important to extend the remedy proposed by the hon. and learned Attorney General to other cases than those in which a dissolution of marriage was sought for.
  MR. COLLINSsaid, he hoped that similar facilities would be afforded for obtaining a remedy in cases of criminal conversation to those which now existed in the provinces by trial at the assizes.
  MR. MALINSsaid, he trusted the hon. and learned Attorney General would not limit the right of action to cases in which divorce or even judicial separation was sought for. There were many cases in which a husband might not wish to sue for either of these sentences, but at the same time might desire that the man who had inflicted this injury upon him should be punished in the only way in which he could be punished under this Bill. He would also urge upon the hon. and learned Gentleman not to make it necessary à priori, that the petitioner should state in what manner the damages should be disposed of. First, let the damages be obtained, then let them be brought into court, and let the Court decide how they should be appropriated.
  SIR DENHAM NORREYSsaid, that unless the Bill was considerably amended, though he had supported it all along, he should vote against it on the third reading, and move to alter the title to that of "An Act for the encouragement of Adultery." He was in favour of punishing adultery by fine and imprisonment, allowing the Judge to direct the application of the fine for the benefit of the family.
  MR. BUTTsaid, he would consent to withdraw his Motion, as he was quite satisfied with the discussion which had taken place. At the same time he assured the Committee that it was his fixed determination to endeavour to secure to the poor man a remedy against the seducer of his wife.
  MR. BOVILLsaid, it was unfortunate that out of respect to the Government bench all discussion was excluded by accident, because the Committee had just abolished the action for crim. con. without providing any substitute for it. He had voted for the second and would vote for the third reading of the Bill, but he hoped the hon. and learned Attorney General would be able to devise some substitute which, should

  1843
  have the effect of deterring persons from committing adultery, punishing the offender, and compensating the injured party.
  Motion by leave withdrawn.
  Original Question put, and agreed to.
  Clause 56 amended and agreed to.
  Clause A (Fees to be collected by stamps.)
  MR. ADAMSsuggested that as it was intended that some of the business arising out of this Bill was to be brought before the inferior courts, while at the same time the fees being payable in stamps would go to the Consolidated Fund, no provision would be left for the officers of those Courts.
  THE ATTORNEY GENERALsaid, it was true that under the clause as it stood, the fees payable on the stamps could not be paid at once to the officers of the court, as it was provided that they should be paid into the Consolidated Fund. He would take care that proper provision should be made to meet the case.
  MR. HENLEYsaid, that the hon. and learned Attorney General having appointed the local courts, should have arranged the fees so as to fit them. This was a duty which could not be done by the Committee. They should first understand how the local courts were to stand, and then settle the fees, otherwise they would be dealing with the fees without knowing how the courts were to be constituted. He hoped that the hon. and learned Attorney General would make a proper provision hereafter.
  THE ATTORNEY GENERALwas understood to say that he would attend to the suggestion.
  SIR WILLIAM HEATHCOTEsaid, it could not be done if this clause were agreed to in its present shape.
  THE ATTORNEY GENERALthen said, that he could make the clause more stringent by adding the words "except as herein expressly provided."
  Clause with the Amendment agreed to.
  THE ATTORNEY GENERALsaid, he now rose to move to leave out Clause 15, and insert a clause which was nearly the same, but in a better shape, for that clause was originally in a very rude form. The clause was intended to meet the case of the whole of the court being thrown open to the profession, which was not in the original Bill as it came from the Lords.
  MR. HADFIELDsaid, that the claim
  1844
  for compensation would be founded upon this clause. Was it understood that the clause was instead of Clause 15?
  MR. MALINSsaid, that compensation would be granted by the clause as in the Probate Bill.
  MR. AYRTONsaid, that the precedent of the Probates Bill would not be followed. Each case would stand on its own merits.
  Clause agreed to.
  Clause 18. (Prescribing the tribunal to which application for judicial separation should be made either by the husband or the wife on the ground of adultery, or cruelty, or desertion without cause for two years and upwards.)
  THE ATTORNEY GENERALsaid, he wished to explain the circumstances under which this clause had been prepared. Several days ago a proposal was made for giving a limited jurisdiction under this Bill to the County Courts. Although he looked forward to the time when those tribunals would be placed on a better footing, he had still expressed his opinion that in their present state they were not fit to be the recipients of a jurisdiction of this nature. The result of the discussion which took place on the former occasion in question was that the hon. and learned Member for Youghal (Mr. Butt) permitted his Motion to be negatived, and the Committee came to the decision that the County Courts should not be invested with functions of this description. At the same time a strong feeling was manifested in favour of confiding a portion of this jurisdiction to some local tribunal, and he himself undertook to bring up a provision to meet this desire. Being, however, stripped of the power of using the County Courts, by the decision of the Committee, he had been compelled to avail himself of such local tribunals as still remained. Among these he found the itinerant Judges of Assize and the General Quarter Sessions of the Peace held in the counties or boroughs. The Committee ought to observe that the Court of Quarter Sessions for any city or borough was presided over by a Recorder, which was not the case at the general Quarter Session for the county; and it might be thought that the Court of Quarter Sessions for the county was not fitted, by its constitution, or its mode of conducting business, for the exercise of this nice and delicate jurisdiction. What he now proposed, therefore, was to move the clause of which he had given notice, with the

  1845
  omission of the words relating to "the Court of Quarter Sessions held for the county." In that shape the provision would enact that application for judicial separation might be made to the Judges of assize going circuit, or to the Recorder of any city or borough in which the husband and wife were last resident. The clause, therefore, would run as follows:—
  "Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife, by petition to the Court, or to any Judge of the Courts of Common Law at the Assizes held for the County in which the husband and wife reside or last resided together, or to the Courts of the Recorder in the city or borough in which the husband and wife are or were last resident, and which Judge of Assize and Recorder's Courts respectively are hereby authorized and required to hear and determine such petition according to the rules and regulations which shall be made under the authority of this Act, and the Court or Judge to which such petition is addressed, on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such judicial separation accordingly, and where the application is by the wife, may make any order for alimony which shall be deemed just."
  Clause brought up, and read 1o.
  MR. BOVILLremarked, that he thought the exercise of this jurisdiction by the Judges of Assize would be almost impracticable, and he would suggest that a similar proceeding to that under the Lunacy Commissioners might be advantageously adopted.
  MR. BUTTsaid, he could not admit that the Committee had on a previous occasion decided against a recourse to the County Courts. He had himself at first proposed a reference to those tribunals, and although he afterwards withdrew his Amendment, it certainly was not his intention, neither did he believe it was the intention of the Committee, thereby to put a distinct negative upon the suggestion to give this jurisdiction to the County Courts. The words substituted for his proposal were general in their purport,—namely, "any court which may hereafter be appointed. "The obvious effect of this was not entirely to give up the question as to the County Courts, but merely to reserve it until a subsequent stage of the Committee, and he still meant to take the sense of the Committee on that point. However, he entirely agreed in the propriety of the proposition giving jurisdiction to the Recorder. The Judges of Assize only sat for a few days in the county, and great inconvenience would
  1846
  result from leaving the jurisdiction in their hands.
  MR. AYRTONsaid, he wished to call the attention of the hon. and learned Attorney General to the practical difficulty of working this clause by means of the Court of Assize. A Judge upon circuit tried cases which came before him upon indictment, and in regard to which there had been in most cases a preliminary inquiry before a magistrate. The parties therefore, had full notice. But here a petition must be presented to a Judge, and notice must be given to the opposite party, who must have time to answer. The Assizes, in the greater number of towns, lasted two or three days, and in some cases only one day. It was clearly out of the question that a party could receive notice and get his witnesses ready, and the case must therefore be traversed until the next Assizes, which would involve a delay of six months. These petitions for separation required immediate attention, and the clause as it stood would fail to carry out the object which the Committee had in view.
  MR. MALINSsaid, that he had expressed a strong opinion against intrusting this jurisdiction to the County Courts. He had refused to acquiesce in the withdrawal of the Amendment of the hon. and learned Member for Youghal, in favour of establishing a County Court jurisdiction; and the result was, that the Amendment was unanimously negatived. He considered that the Committee, in negativing that Amendment, decided that the County Courts should not have the decision of cases of judicial separation. The hon. and learned Attorney General had, with great propriety, abandoned his proposal to give jurisdiction to Courts of Quarter Sessions. [THE ATTORNEY GENERAL: I have not proposed it.] It was in his hon. and learned friend's clause, and as he had struck it out, he was justified in saying that his hon. and learned Friend had abandoned the proposal. The hon. and learned Gentleman now proposed to give the jurisdiction to Judges of Assize, and Recorders. Would this work? He believed it to be impossible that this class of cases should be disposed of by the Judges of Assize. The Assizes had, in some towns, just terminated, and they would not be held again until March. Now this class of disputes between husband and wife would not bear the delay of seven months, and this delay would be, of itself, an insurmountable objection. [SIR GEORGE GREY: There is

  1847
  a third circuit within the year.] Yes; but that was a circuit for criminal business, and occupied only a limited time. There was a great pressure to get through the criminal business; and although, if the Judge tried these causes upon the third circuit, the delay would not exceed four months, it would still be too much. It was well known that these domestic quarrels and brawls occupied a great deal of time in their investigation, and how were the Judges to know how much time to give to each Assize town? The delay of a single day at any town overthrew all their arrangements, and these applications for judicial separation would set at defiance all their calculations. The Recorders held their Sessions four times a year, and in their Courts the delay need not exceed three months. But very young men were appointed Recorders, and, taking the average of Recorders, many of whom were young and unmarried men, would any one say that they had the experience necessary to enable them to dispose of these cases satisfactorily? He approved the suggestion of the hon. Member for Guildford (Mr. Bovill) to send down Commissioners, as in cases of lunacy, the Commissioners, to report to the Court, and the Court to act upon that report.
  MR. HENLEYsaid, he thought that the Attorney General had done everything in his power to carry out the determination of the Committee in favour of local jurisdiction. The hon. and learned Gentleman had availed himself of all the Courts in his power, and he quite agreed with those who thought none of them particularly fit for the purpose. They must remember that this tribunal was for the poorer people, and he knew of no instance of Commissioners going down into the country without great expense.
  MR. MALINSsaid, that it was in cases of poor persons becoming lunatic that Commissioners were sent down with such signal advantage. The Commissioner was an officer of the Court, and was not sent down at the expense of the parties, but at the expense of the Court.
  MR. HENLEYsaid, he would be glad to know whether the expense was absolutely little, or relatively little, to what Commissions in lunacy used to be.
  MR. MALINSsaid, absolutely little.
  MR. HENLEYsaid, the expenses of those Commissions used to be frightful, and of late years, he had heard they were so great that he looked with alarm to
  1848
  extending the system to divorce cases. Many of these cases were only for the purpose of getting alimony. Married persons quarrelled; they could separate themselves, but they could not agree as to the amount which the husband was to give his wife for permanent alimony, and that was the frequent cause of their having recourse to the present local Ecclesiastical Courts to settle it for them. The Court arbitrated between the parties, and nothing more was heard of them. He did not think that the inhabitants of a county could appeal to a borough Recorder, and proceedings at the Assizes would necessarily be expensive and hurried. The Court of Quarter Sessions, might not be able to judge difficult questions, but among the humbler classes of society the settlement of alimony was the most important question, and it was not of so difficult a nature that persons of ordinary common sense, with a fair knowledge of life, could not deal with it satisfactorily. The number of cases would be extremely small—not above one in a year in each county, and as he looked upon this quite as an experimental measure, he did not attach great importance to making it a perfect tribunal.
  MR. M'MAHONsaid, he trusted that the hon. and learned Attorney General would stand by the clause, as it was originally printed. He could see no objection to the Court of Assize on the ground of delay. In these cases delay was very essential to give an opportunity of amicable arrangement between the parties. Nothing was more desirable than that a little time should be conceded, and that husband and wife should not be able to rush away to a court to have their quarrel dragged before the public. In France, frequent opportunities of arrangement were given before the parties were driven to a last and public hearing. There appeared to him to be no more difficulty of trying these cases at the Assizes than of trying ten thousand others of much greater importance. With regard to the suggestion to follow the precedent of Lunacy Commissioners, with 100 cases of divorce a year and 200 cases of judicial separation,—as the experience of Scotland showed there would be—they would need some dozens of Commissioners, and no Commission ever acted so cheaply and effectually as a Court of Assize. Moreover, he objected to any public money being wasted in settling the differences of private parties. With the exception of five or six Recorders, the non-

  1849
  professional Chairmen of Quarter Sessions did their business as well and as satisfactorily as the learned Recorders. The Chairmen of Quarter Sessions were selected because of their good sense and experience, and they would understand the differences of parties in their various localities better than the Judges of Assize, and much better than the Recorders. He hoped, therefore, the Attorney General would adhere to his proposal to give this jurisdiction to the Quarter Sessions.
  LORD LOVAINEsaid, he observed that no appeal was to be granted from the local Courts. Was that intended?
  THE ATTORNEY GENERALsaid, he would answer the question of the noble Lord presently. In the meantime, he wished to refer to the objections which had been stated to these matters being heard and decided by the Judge of Assize. The Committee would recollect that, besides the Judge of Assize, there were named in the Commission of Assize or nisi prius a number of barristers—Queen's Counsel and Serjeants-at-law. What he proposed was, that any one of the persons named in the Commission might be appointed by the Judge to hear and determine matrimonial causes precisely in the same manner in which a Queen's Counsel or Serjeant was called upon to aid the Judge in disposing of that business which the latter could not undertake himself. Another difficulty had been raised with respect to the service of petitions. That might be easily arranged by the adoption of a rule of procedure to the effect that petitions might be addressed to the Judge of Assize for the county, sent up a certain number of days before the day appointed for the Assizes, sealed with the seal of the Court, and then served, without any further ceremony or expense, upon the respondents. Thus he got rid of the two main difficulties which had been urged against his proposal. He now came to the question of the Quarter Sessions. Undoubtedly he felt that the Quarter Sessions, as a body of Judges, were not exactly the tribunal to which matrimonial causes should be referred; but he had not the least objection, as he had given power to Recorders to adjudicate upon all these petitions, to adopt the suggestion of the right hon. Gentleman, the Member for Oxfordshire (Mr. Henley), and to let matrimonial causes be determined by Chairmen of Quarter Sessions personally, sitting of course as Chairmen. The result would be, supposing Chairmen of Quarter Sessions to have as Judges pro hâc vice
  1850
  the power of hearing and determining upon these petitions, that they would take them either in a private hearing or in public Court, adjudicating upon them in the same manner as the other tribunals. He could not consent to the creation of temporary Commissions, consisting of one or more barristers, for the purpose of disposing of this description of judicial business. There would be no dignity about such a tribunal, no satisfaction in the manner in which its functions would be discharged, and he did not think it would be anything like a proper Court for administering the jurisdiction created by this Bill. The first Amendment which he proposed in the clause was, the insertion, after the words "Judge of Assize," of the words, "or any other person named in the Commission of Assize or nisi prius for such county, and appointed by such Judge to hear such petitions."
  MR. SEYMOUR FITZGERALDsaid, he thought the statement of the hon. and learned Attorney General was most satisfactory. He was glad to find that this jurisdiction was to be placed in the hands of Chairmen of Quarter Sessions. His belief was that, as far as chairmen were concerned, justice was better administered by those tribunals than by a large number of regularly constituted Courts. He would suggest that the Attorney General should add the words, "or Assistant Chairmen."
  MR. PULLERurged that care should be taken, not only that the respondent should be served with the petition, but that he should have time to prepare to meet it, and to send in or file a counter-charge. He thought, also, that provision should be made for giving persons whose character was assailed in petitions an opportunity of protecting themselves.
  LORD JOHN MANNERSsaid, that, as the person who suggested that there should be a local jurisdiction, he was anxious, before the discussion closed, to express his opinion that the hon. and learned Attorney General had not only fulfilled his promise, but fulfilled it in a manner which gave the Committee every reason to believe that their intentions would be properly carried into effect.
  MR. HENLEYasked the Attorney General whether he had any objection to allow the local Courts to deal with the restitution of conjugal rights, as well as with judicial separation?
  THE ATTORNEY GENERALsaid, he

  1851
  would consider that point. In the meantime, he would suggest that the clause be amended by inserting the words, "The Chairman and Assistant Chairman of the Court of Quarter Sessions of the peace held for the county or district, or the Recorder for the city or borough in which the husband and wife are or were last resident."
  MR. BOVILLobserved, that the clause, as proposed, would make it compulsory upon those gentlemen who were named in the Commission to undertake this business at the dictum of the Judge.
  THE ATTORNEY GENERALremarked, there would be a consideration for the trouble.
  MR. BOVILLsaid, he was not speaking of the consideration to be given. Many gentlemen would decline to undertake this business upon any consideration. He thought it would be better to leave the Judge of Assize to select the most competent person he could find.
  SIR GEORGE GREYsaid, he would remind the hon. and learned Gentleman that several persons were named in the Commission who were selected from the leaders of the circuit. The Judge would, of course, only avail himself of the assistance of gentlemen who were willing to undertake the duties.
  MR. ADAMSobserved, there was no mention of payment in the clause.
  LORD LOVAINEsaid, that, as a Chairman of Quarter Sessions, he not did wish for the discharge of such duties; but, as they were to be imposed upon him, he must earnestly ask that there should be some provision made for an appeal.
  Amendments agreed to.
  Clause read 2o, and added to the Bill.
  Clause 18A was postponed.
  On the motion of the ATTORNEY GENERAL, a clause was added to the Bill in the place of Clause 19, giving power to a wife deserted by her husband to apply to a police magistrate, or Justices in Petty Sessions, for an order to protect her earnings and property against the creditors of her husband.
  THE ATTORNEY GENERALnext proposed a clause to follow Clause 54, giving compensation to proctors according to the loss which may be sustained by them in respect to suits relating to marriage and divorce, to be ascertained by a comparison, instituted two years after the passing of the Act, between the average gains of those two years and the average
  1852
  gains on the three years immediately preceding the passing of the Act.
  MR. MALINSsaid, he hoped that the hon. and learned Attorney General would consent to regulate the compensation with regard to divorce business in the same manner as it had been settled in the Probate Bill—namely, that the proctors should receive one-half of the amount of their profits during the last five years. This divorce business was confined in few hands, and the amount of compensation would be very trifling.
  MR. HADFIELDremarked, that he had been under the impression that the question of compensation had been settled for good in the Probate Bill. He had certainly understood the hon. and learned Member for Wallingford, in the discussion on that Bill, to withdraw all claim for compensation to the proctors in respect to divorce and admiralty business. He should divide the Committee against the clause.
  MR. MALINSsaid, that in justification of the course which he had taken upon this matter, he wished to state that, on the 6th of August, the hon. and learned Attorney General, in answer to a question from the noble Lord the Member for the West Riding of Yorkshire (Viscount Goderich) said:—
  "It came within the spirit, if not within the letter of the agreement, that compensation clauses in respect to the matrimonial business of the proctors should be inserted on the same principle as the corresponding clauses in the Testamentary Bill."
  MR. HENLEYsaid, he wished to know why the parties most interested—namely, the officers of the local courts—were not to be dealt with upon the same principle as the proctors?
  THE ATTORNEY GENERALsaid, that when compensation was given to the chancellors and officers of the inferior Diocesan Courts for the loss of the testamentary business, it was understood that they would be fully satisfied, and he had not received a single letter suggesting that there should be any further compensation. As to the proctors, he had a clear recollection that neither in answer to the hon. and learned Member for Wallingford (Mr. Malins), nor to the noble Lord the Member for the West Riding (Viscount Goderich), did he ever state that the proctors were to be compensated under this Bill upon the same principle on which they received compensation under the Testamentary Bill. The cases were different, because while under the latter measure

  1853
  business was taken from them, by this a new court was constituted, and business was brought into it from all parts of the country. While admiring the sincerity, the perseverance, and the ability with which his hon. and learned Friend had conducted the case of the proctors, he thought that he had a little miscarried in pressing for the compensation for which he now asked. Had there been a fuller House, such a course might have endangered the granting of any compensation.
  MR. MALINSsaid, that he understood his hon. and learned Friend to deny the accuracy of the Report.
  THE ATTORNEY GENERAL: As far as the words "on the same principle &c." are concerned.
  MR. MALINSsaid, that of course he could only rely upon the usual sources of information, which were generally very accurate; and therefore his hon. and learned Friend would, no doubt, think him justified in referring to this statement as having fallen from him. (The ATTORNEY GENERAL: Hear, hear!) As the accuracy of the report had been denied, the foundation of his case had failed, and he should not press his proposition. As to the contrast which the Attorney General had drawn between the operation of this measure and that of the Testamentary Bill, he must remind the Committee that, under this Bill, the proctors would at once have 10,000 competitors for the business in this court.
  Clause added to the Bill.
  Clause brought up, fixing the salary of the Judge of the Court of Probate, if appointed Judge Ordinary of the new court, at £5,000 per annum, and providing that that salary should not be increased if he should be made Judge of the Admiralty Court.
  Clause added to the Bill.
  Various other clauses, relating to the duties upon stamps, and providing for the expenditure of the new court and for the publication of accounts, were brought up and agreed to.
  MR. M' MAHONsaid, that he now rose to propose the following clause, to follow Clause 54:—
  "From and after the passing of this Act, the committing of adultery by any person with any married woman living under the care and protection of her husband, such person knowing the said woman to be married, shall be deemed and taken to be a misdemeanour; and such person shall and may be proceeded against by indictment, and in no other manner, in respect of the
  1854
  same as a misdemeanour, and which indictment it shall not be competent to any person to prefer to a grand jury, except the husband of such married woman; Provided, that whenever it shall appear to the Court, upon the trial of any person, proceeded against in respect of such misdemeanour under this Act, that by reason, of collusion or connivance on the part of the husband of such married woman, or other circumstances, of which collusion, connivance, and other circumstances, the Court shall be competent and is required to receive evidence, no action at law for damages, or verdict for more than nominal damages, could be maintained at the suit of such husband against the person alleged to have committed adultery with the wife of such husband, such person shall not be liable to be convicted or punished under or by virtue of this Act; provided, also, that such offence shall be punishable, at the discretion of the Court, by fine and imprisonment, or either of them; and that any such offence, if committed put of the United Kingdom, may be alleged, laid, inquired of, and tried in the county of Middlesex."
  That clause had been drawn by a gentleman of great experience, and its object, in a word, was to make adultery a misdemeanour. In fact, it was almost the same as a clause of the Bill of 1800, which had been supported by Lord Eldon and Mr. Pitt, and which clause had also received the sanction of the House of Commons. It was by no means the case that to make adultery a misdemeanour was foreign to the law of England, because there were several precedents which proved that, up to the year 1746, it had been treated as a misdemeanour; and he believed that, but for the introduction of the action for crim. con., that would still have continued to be the case. Now that the action for crim. con. had been done away with, the man whose wife was debauched, and who was debarred from proceeding for a divorce—a Roman Catholic, for instance—would be left entirely without redress unless this clause were adopted.
  Clause brought up and read 1o.
  THE ATTORNEY GENERALsaid, it was a matter of congratulation to him that the clause which the hon. and learned Gentleman had just proposed was not one which he himself had framed, inasmuch as there would be the less difficulty in characterizing it as one which contained some very absurd provisions. It must also, he thought, be a subject of consolation to the Committee, on casting a retrospective glance over past times, to find that men, who in those days were looked upon as giants in intellect, could be the authors of a clause which actually proposed that no person should be held competent to proceed by indictment against the adulterer but the husband of the woman with whom

  1855
  the offence had been committed, and that the liability to punishment of the guilty party should depend, not upon the fact that the adultery had taken place, or upon the flagrant nature of the circumstances by which its commission was attended, but upon the question whether a jury, taking all the facts into their consideration, were or were not prepared to give the husband damages. He trusted the hon. and learned Gentleman would forgive him if he felt it to be his duty to characterize a clause of that description, making the punishment of the adulterer altogether dependent upon the meritorious conduct of the husband, as absurd, and if he should express a hope that the Committee would not assent to its introduction into the Bill.
  Motion made, and Question, "That the clause be read a Second time," put, and negatived.
  MR. BUTTsaid, he was anxious to establish the principle of a limited jurisdiction in local Courts; but he would not press that point now, but would bring up a clause on the Report. He also wished to observe, that, by the 25th clause, any husband might present a petition for divorce, and the petition might be served anywhere—a circumstance which would make the Bill apply to Ireland and Scotland; and he therefore proposed to move a clause to prevent that, except in cases which were specially mentioned in the Bill.
  THE ATTORNEY GENERALsaid, he thought it would be better to propose the Amendment on the bringing up of the Report.
  MR. BUTTexpressed his readiness to accede to this suggestion.
  THE ATTORNEY GENERALsaid, he would now take occasion to state that he would submit the new clauses which he had taken it upon himself to prepare—among the principal of which were that giving power to the husband to recover damages against the adulterer, and that which would oblige the incumbent of any parish, who might upon conscientious grounds refuse to marry parties who had been divorced, to give the use of his church to any other clergyman who might be willing to perform the ceremony—to the consideration of the House either in Committee or upon the bringing up of the Report, whichever course might appear the more desirable. The hon. and learned Gentleman concluded by moving that the Chairman should report progress.
  On the suggestion of Mr. MALINS,
  THE ATTORNEY GENERALconsented that the new clauses should be brought forward in Committee.
  MR. WALPOLEsaid, he would take that occasion to express his belief that, if the hon. and learned Attorney General sought to add the proviso to Clause 53, to which he had referred—namely, to enable the guilty parties to be married in the parish church by another clergyman, in the event of the incumbent of the parish refusing to marry them—such a proviso would give rise to dissatisfaction.
  THE ATTORNEY GENERALsaid, he had given a distinct promise to bring forward a proviso of that kind.
  MR. P. O'BRIENsaid, he hoped it was understood that it was to be a clergyman of the Church of England who was to marry the parties in the event of the incumbent of the parish refusing to do so.
  THE ATTORNEY GENERALsaid, he would take care that the proviso should provide that it was a licensed clergyman of the diocese who should officiate in the event of the clergyman of the parish refusing.
  MR. RIDLEYsaid, he wished to remind the Committee that the introduction of the proviso in question was an essential part of the arrangement which had been come to.
  The House resumed. Committee report progress; to sit again To-morrow.

  CROWDED DWELLINGS PREVENTION BILL.—COMMITTEE.
  Order for Committee read.
  House in Committee.
  Clause 1 (Short Title of Act).
  MR. HENLEYsaid, as the Bill professed to deal only with common lodging-houses, its present title was inappropriate. He would therefore move that, instead of being designated in the 1st clause as "The Crowded Dwellings Prevention Act, 1857," it be called "The Common Lodging-houses Act Amendment, 1857." He thought, if the right hon. Gentleman who had charge of the Bill (Mr. Cowper) was in earnest in dealing with the common lodging-houses, the Bill ought to take that distinctive title.
  Amendment proposed, to leave out the words "The Crowded Dwellings Prevention Act, 1857," in order to insert the words "The Common Lodging-houses Act Amendment Act, 1857."
  Question proposed, "That the words proposed to be left out stand part of the clause."
  MR. COWPERsaid, perhaps the title suggested by the right hon. Gentleman was the better of the two, if the Committee thought it would apply as well to the clause relating to the common lodging-houses as to that giving power to the Commissioners of Police to enforce the application of a part of the Nuisances Removal Act.
  MR. RIDLEYsaid, that, under all the circumstances, he would suggest the propriety of postponing the further consideration of the measure until next Session. As introduced in the Lords, it applied solely to the Metropolis, but now it was extended to the whole country. Considering the nature of the alteration made in the Bill, and the great difference of opinion which existed in respect to it, he thought that at that period of the Session it should be abandoned.
  MR. COWPERsaid, that the Bill had been before the House sufficiently long to be amply considered. It was true that the Bill, as originally introduced, was restricted to the Metropolis, where the evil to be met chiefly existed; but, as the Bill referred to the Common Lodging-houses Act, which applied to the whole country, it was thought proper to extend the application of the Bill. Except for the purpose of defeating the Bill, he could not understand the reason of postponing its consideration.
  SIR WILLIAM JOLLIFFEsaid, that the object of the Bill was hardly urgent enough to induce the House to pass it at this period of the Session. Moreover, the whole Bill was drawn up so unintelligibly that it would take a long consideration to make the enactments clear to an ordinary understanding.
  MR. AYRTONobserved, that the usual Chairman of Committees had left the House exhausted. He was also exhausted, and, desiring to be present at the business of the House to-morrow, and not thinking that matter now under consideration of sufficient importance to keep the House sitting at one o'clock in the morning, he moved that the Chairman report progress.
  MR. COXseconded the Motion. As a Metropolitan Member he was opposed to the whole measure, on the ground of its provisions which were a gross outrage upon the poorer classes of the country, and would place the whole metropolis in the hands of the police.
  Motion made, and Question proposed, "That the Chairman do report progress, and ask leave to sit again."
  MR. P. O'BRIENsaid, that the object of the Bill was to prevent the overcrowding of the dwellings of the poor, and he maintained that it was necessary to add to the enactments of the Common Lodging-houses Act the provisions of the present Bill. The lateness of the hour had been alluded to, but it was not too late to provide for the comfort of the poor by improving the state of their dwellings.
  MR. JOHN LOCKEsaid, he objected to this Bill because it interfered with every man in the metropolis and throughout the country as to the mode in which he chose to live in his own house, and enabled the police to enter every man's private dwelling at any time. The object of the measure was a selfish one. It interfered not for the protection of the poor, but for that of the rich, who said, "Your misery may lead to our misfortune; we shall suffer because you may breed disease." The noble Lord at the head of the Government had stated that the opposition to the Bill proceeded from speculative builders, but this was not the case. He opposed the measure because it was ridiculous and absurd, because it infringed upon the liberties of the subject, and because it turned the poor out into the streets without providing them with any new accommodation. The Act did not apply to Ireland, and Irish members, therefore, might allow him and others to maintain the miserable old doctrine that 'every Englishman's house was his castle.' The interference of the police in the domestic affairs of life was already quite sufficient, and he was decidedly opposed to giving them any further powers.
  VISCOUNT PALMERSTONsaid, it was plain where the shoe pinched. This was a question between speculating builders, who wished to overcrowd the houses they erected, and the poor who were the victims of their cupidity. The hon. and learned Gentleman said that an Englishman's house was his castle. In this ease every builder's house was his dungeon; and it was into this unhealthy dungeon that, for the sake of private gain, they crowded a number of persons, who could not live together with safety to either body or mind. The hon. and learned Gentleman suggested that Irish Members had no business to intrude their opinions in a matter of this sort. He (Lord Palmerston), however, contended that of all Members in this

  1859
  House they were most called upon to support this Bill, because there was an immense number of Irish poor in this metropolis, who, being strangers here and depending entirely upon their personal industry for support, were perhaps more interested in this question even than the natives of England. It did honour, then, to the hon. Gentleman opposite (Mr. P. O'Brien) that at personal inconvenience he stayed here to support a Bill which so deeply affected his fellow-countrymen. As to the question of time, that was a common-placed, stereotyped argument, which hon. Members, who felt they could not oppose a Bill upon its merits, frequently brought forward. He hoped the Committee would listen to no argument of that sort. Every objection which had been urged against this measure applied equally to the Lodging-house Act, which we prove to have conferred the greatest possible benefit on the poor in this metropolis, and he trusted that the Committee would defeat the attempt to throw out this Bill, and would thereby complete the good work which that Act had begun.
  LORD ADOLPHUS VANE-TEMPESTsaid, he did not believe there was one hon. Member in this House who would oppose this Bill from a wish to promote his popularity among any section of his constituency. He had every desire to promote the improvement of the lodging-houses of the poor, but he could not agree to such a despotic measure as this, which would enable the police to enter every private dwelling-house in the country, being proceeded with at half-past one o'clock in the morning.
  MR. HENLEYsaid, he thought it would be a great pity if after the discussion of the Bill on the previous night the House did not endeavour to amend it. If it could not be amended, then let it be put an end to. The noble Lord had rather provoked hostilities, by charging those who opposed this unintelligible Bill, with being actuated solely by a desire to further the selfish interests of those capitalists who built great dungeons for the poor. He could assure the noble Lord that he had had a good deal to do with Bills of this nature, and when the first of this class of Bills was brought in by a noble Lord, now in another place, it was even more unintelligible than this, and yet, that noble Lord used precisely the same language as that used that night by the noble Lord at the head of the Government against those who
  1860
  wished to make it intelligible. That Bill was referred to a Committee upstairs, with the view of putting it into a working shape, and when it came back it was as different from the Bill in its first shape as a white from a black horse. He would suggest that it should be so altered as to make it applicable to common lodging-houses alone, and not to private dwellings.
  MR. COWPERsaid, that the Bill was not intended to be applied to any private dwelling-house, its object being directed to common lodging-houses alone. If hon. Gentlemen would allow the Committee to proceed, he would alter the clause so as to declare it applicable to common lodging-houses alone.
  MR. AYRTONsaid, he had frequently before that evening resorted to Motions for delay, when the Government attempted at an early hour in the morning to carry arbitrary and despotic measures by means of the majority which was always ready to do their bidding. The insinuations of the noble Lord at the head of the Government against those who opposed the Bill was altogether unfounded. The Bill was never intended to regulate common lodging-houses. If that were its object, it was not wanted at all, as the Common Lodging-houses Act was sufficient for such a purpose. Nor would it affect the builders of that class of houses referred to, but only the poor tenants, who would be liable to be summoned before a magistrate for breach of its provisions. The real aim of the measure was to place the dwellings of the poor under the surveillance of the police, and to subject the country to an odious system of domiciliary visits.
  MR. KNIGHTsaid, he regarded this as only one of a series of stringent measures for increasing the power of the Government over the subject, which ought to be strenuously resisted. The police ought to be strictly confined to their single, proper duty—the prevention of crime; otherwise, the same system of gradual encroachment which had enslaved the nations of the Continent would be insidiously extended to this country.
  MR. NICOLLsaid he was not a Metropolitan Member, and had no connection with speculative builders. He regarded this Bill as a step towards the policy of the French Government, which was to pull down the dwellings of the poor, and erect in their stead houses which the rich only could afford to occupy. He believed this Bill to be extremely dangerous

  1861
  in its principle, and he would oppose it by every constitutional means.
  MR. P. O'BRIENsaid, he must complain of the presumption of the hon. and learned Member for the Tower Hamlets (Mr. Ayrton) in laying down the law for the House on every possible occasion. They all admired the eloquence for which that hon. and learned Gentleman was distinguished, although it must be confessed that he was prone to be a little too lavish with it; and at the close of the Session his lengthy harangues were particularly unseasonable.
  MR. RIDLEYsaid, that he must beg to repudiate the unworthy motives to which the noble Lord at the head of the Government had described the opposition offered to this Bill.
  LORD ADOLPHUS VANE-TEMPESTsaid, it was clear from every word of the Bill that it was intended to be applied to the private dwellings of the poor, and not to common lodging-houses. He had no wish to perpetuate the present state of things, but he thought that at two o'clock in the morning it was time to report progress.
  MR. HENLEYsaid, that there was no chance of passing the Bill through Committee at that hour.
  MR. K1NNAIRDsaid, he would express a hope that the clauses would be agreed to.
  MR. COXsaid, he thought the Chairman ought to report progress, in order to allow the noble Lord at the head of the Government an opportunity of reading the Bill, of which it was evident he knew nothing. Had the noble Lord ever read the History of England? If he meant to play Wat Tyler with the people of England they would be able to find persons to play the tyrant against him.
  SIR WILLIAM JOLLIFFEsaid, he also must disclaim the imputation that had been cast upon him of having opposed the Bill from unworthy motives. He had opposed it lest its stringent provisions should disgust the people with that beneficial enactment, the Common Lodging-houses Act.
  VISCOUNT PALMERSTONremarked, he did not know what was meant by saying that the Government had imputed base motives to those who opposed the Bill. If any imputations had been caste, they had been rather cast upon the Government by those who opposed the Bill, that under the semblance of improving the Common Lodging-houses Act, they were attempting
  1862
  a tyrannous interference with all private houses, and that they sought to establish domiciliary visits. The hon. Member for Finsbury had even gone so far as to impute to him a desire to imitate the example of a person whom the hon. Member conceived to be a great tyrant. If the hon. Member inquired within the limits of his own borough into historical facts he would acquit him of any display of arbitrary Government and tyranny, as resulting from an imitation of Wat Tyler. He earnestly hoped the Committee would adopt the Amendment of his right hon. Friend (Mr. Henley), which the Government were quite willing to accept.
  Question put.
  The Committee divided:—Ayes 22; Noes 35: Majority 13.
  Question, "That the word proposed to be left out—stand part of the clause;" put and negatived.
  Amendment made.
  Clause as amended, agreed to.
  The House resumed. Committee report progress; to sit again on Thursday.
  House adjourned, at a quarter before Three o'clock.