§ 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.
1833§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
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,
§ 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.
§ 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.