Lords Sitting of 2 May 1809

DIVORCE BILLS.
Lord Aucklandsaid, that the question which he rose to bring forward related entirely to the discouragement of seductive adultery; a vice, which carries a sense of disgrace and distress into the families both of the seducer and of the victim of seduction; depriving the innocent children of the affections and protection of their parents; and exhibiting in the higher classes a depravity which lowers them in the public estimation, and at the same time tends to corrupt the minds and morals of the interior orders of society.—It had long been matter of regret to many, that a vice of such malignity and mischief is not yet considered by our laws as a crime. We provide rigorously and industriously for the punishment of a long list of trivial offences against the persons and properties of individuals: but we totally overlook the assassins of domestic happiness. Adultery is subject only to the feeble coercion of the spiritual courts; in other words, it is left to its full range unrestrained and unheeded. The adulterer, indeed, may be compelled by a civil action to pay a pecuniary compensation, which in many cases the injured husband is ashamed to receive, and which in no case has the effect that a solitary impri-

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sonment of two or three years would have for the purposes of reform and of example. Under these impressions, he (Lord Auckland) had inclined to propose once more to their lordships, the bill which they had passed nine years ago to make adultery punishable as a misdemeanor: but he had been discouraged by a recollection of the many long debates to which he had then subjected himself, and must be permitted to say:
"Non eadem est ætas, non mens."
He had also wished for a provision (which had been suggested to him by his noble and learned friend on the woolsack) against the practice, in prosecutions for adultery, of suffering judgment to go by default, in order to adjust privately at a tavern, such damages as may best suit the purposes of a profligate collusion.—Hitherto the interference of Parliament respecting seductive adultery has been confined to bills of divorce, given to the injured husband, "to annul his marriage and to enable him to marry again." That interference had been practised about 140 years, and in the latter part of the period had become scandalously frequent.—The practical construction of those bills of divorce has been, that the adulteress, though not specially enabled by any of the clauses, is at liberty to marry again, and even to marry the adulterer; and in many instances it is notorious, that the offending parties have intermarried accordingly. And thus it is that the faithless wife, by a special interference of Parliament, receives hire and salary instead of punishment, and becomes an encouragement to others to pursue the same course, in order to arrive at a similar gratification.—Parliamentary bills of divorce are liable to another glaring objection. Every remedial act of legislature should be equally within the reach of every class of the community. But bills of divorce, grounded as they are required to be on various expensive processes (amounting in some instances to 3 or 4,000 l), in the courts of common law, in the ecclesiastical courts, and at the bar of the two Houses, are confined to the opulent. And thus the interference of their lordships was employed to bring under the public eye the vices and excesses of the higher classes exclusively.—With these views, he (lord Auckland) would not be sorry if parliamentary divorces were altogether discontinued; but at all events it must be the duty, and therefore the wish, of their lordships, not to allow
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collusion and abuse, nor to be made the instruments of encouragement to conjugal infidelity.—As the law of England now stands, the divorced husband and wife are prohibited, by the ecclesiastical canons of 1603, from marrying again in the life-time of each other; and a bond to that effect is required accordingly.—By the law of Scotland the adulterer and adulteress can in no case intermarry after sentence of divorce. The evangelical law on these points had been variously interpreted, but it was not within his province and powers, nor indeed was it necessary to his purpose, to attempt to discuss it. His object was to adopt the principle of the Scotch law, as being proper, just, and expedient.—It notoriously and frequently happens, that adulteries take place on the unprincipled calculation that a change of husbands is desirable and attainable. The new compact is understood between the parties, and becomes a sort of honourable partnership of eventual dishonour, in some degree sanctioned and guaranteed by the surrounding society. The human mind is such a mixture of weakness and reasoning, that a woman can sometimes frame to herself an apology for the breach of her marriage vow, in the hope and speculation that she may contract a new engagement at the altar with the partner of her crime. By the prevention of such marriages, the code of seduction will be deprived of one of its principal allurements. But how will the prohibition operate on the seducer? It ought, if he possesses one latent spark of generosity, to deter him from an injury, for which all pretence to reparation is precluded; and undoubtedly, in many instances, it will have that effect.—We are told, however, by some, that it would be a more effectual discouragement to adultery, if the offending parties were compelled to intermarry. This suggestion, taken as an epigram, is not remarkable either for its novelty, its truth, or its wit; taken seriously, it would be a monstrous system of state policy to enable women to change their husbands as often as vice, caprice, or interest, might dictate. The process would be short and simple, and would of course be consummated, by the special intervention of parliament, on the very day of the royal assent to the bill of divorce.—But how will the prohibition operate on the unfortunate objects of seduction? There is a phrase of hackneyed levity, that "the woman who deliberates is lost?" but it

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had been well said by a noble earl (Buckinghamshire) when this subject was debated heretofore, that when the prohibition in question shall be established, every woman who deliberates will be saved. Irretrievable ruin will present itself to her view.—It is no objection to the measure that it will not extend to the case of a married seducer. If he can contrive to break the heart of his deserted wife, the prohibition will eventually apply.—Still less is it an objection, that a standing order is less extensively binding than an act of parliament. It will be equally binding on ourselves as a rule for our proceeding, unless special cases can be imagined in which we should think it right to make an exception. And this mode is consonant to evident reason, and to the practice of both houses of parliament, in respect to each other. A reference to the Journals (from winch lord Auckland stated several precedents) would shew the undoubted truth of this assertion. The proposition itself was not new. It had been brought forward first by the duke of Athol, in the form of a bill, in 1770: and again by the present bishop of Durham, in 1779; and for the third time in 1800. Their lordships' house, had always passed the bill; but it had not received the concurrence of the house of commons.—In conclusion he trusted that he had shewn the measure in question to be right in its principle, expedient in its tendency, and correct in its mode. He did not seek to punish excesses, but to prevent them. It was nut his wish to aggravate the sufferings of the unfortunate victim of adulterous seduction; but in the words of the poet
"To teach the unblemish'd to preserve with care
"That purity, whose loss is loss of all."
He then made the following motion: "Ordered, that no Bill, grounded on a Petition to this house to dissolve a marriage for the cause of adultery, and to enable the petitioner to marry again, shall be received by this house, unless a provision be inserted in such bill, that it shall not be lawful for the person, whose marriage with the petitioner shall be dissolved, to intermarry with any offending party, on account of whose adultery with such person, it shall be therein enacted, that such marriage shall be so dissolved. Provided, that if at the time of exhibiting the said bill, such offending party or parties shall be dead, such provision as aforesaid shall not be inserted in the said bill."
The Earl of Radnorexpressed himself as having no inclination to oppose the motion of the noble lord, but was rather disposed to have gone still further in any measure, which might tend to the prevention of so many breaches of the conjugal vow. At the same time he could not refrain from noticing that one injurious consequence would result from that proposition becoming a standing order. It would eventually happen that cases would arise when it might be absolutely necessary or desirable that the order should be dispensed with. This would produce a very unpleasant inference, that favour was shewn in particular cases. He would rather have wished, that some general law could have been adopted, from which it would in no instance be necessary to deviate.
Lord Mulgraveentertained the same sentiments on this subject as he had before expressed. His lordship could not perceive how the great cause of morality could be effectually promoted by such a measure. The sum of 4,000 l. seemed enormous in such a case; but if it were necessary to incur such expences, he should rather say that something should be done to make the matter more equal to the lower classes. He wished as much as any noble lord to diminish offences of this description, which had such baneful consequences, and was willing to do any thing in his power to carry into effect any measure for that purpose, as far as the mild and benignant spirit of our laws could be kept in view. But would morals be promoted by taking away almost the only chance of reforming and amending the life of the female? If noble lords would look at the instances of such persons divorced, who did not marry, and compare hem with those who subsequently married, they would find a very great difference. Some unfortunate ladies had displayed, after their faults, a character that might even be called exemplary. He thought such a measure rather encouraged seducers, by taking away all remedy for misconduct. It certainly tended to make the woman a mistress in future and not a wife, and to shut up the door to repentance and reformation. He had a sincere desire to repress the evil, but he had a firm conviction that the prohibition had a tendency rather to increase it. He hoped to see something better proposal than a measure which, in its operation, might become so severe and cruel.
The Archbishop, of Canterbury, after some

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prefatory observations, said, that though he was not so fortunate as to hope by this measure to extinguish this great crime, yet he was happy to adopt any practical mode of preventing the facilities to the commission of adultery. It was, he lamented to say, very seldom that he could see their lordships' table pure and clean from the pollution of divorce bills, now becoming daily more frequent. So common indeed were they, that, to use the words of an old author, they seemed to be considered as the proper fruits of marriage. There was, he feared, hardly a pedigree that was not stained and broken by this sad frequency of crime. It was impossible that such things could last long. Marriage was, in fact, the basis of all our relations and duties in social life. It began with the creation, and it remained in the rudest elements of society. Its importance and sanctity were recognized by the universal consent of mankind. In this country, indeed, we did not exalt it into a sacrament; but we regarded it justly as a sacred institution. It was both a civil contract and a religious rite. His grace reviewed the state of matrimonial obligations among the Romans, and shewed, from a variety of illustrations and quotations, the immense importance of guarding them from the intrusions of licentiousness. The misery that the crime of adultery caused to families was of the most serious nature. There was one result of such criminality, which it was the highest duty and soundest policy of any state to prevent; he meant the neglect of children, which was its natural consequence. His grace would not take upon himself to say how far, in ancient times, the barbarous practice of the exposure of children might have arisen from this offence; but he was sure that its frequency might be fairly considered as leading to the greatest indifference, and most shocking carelessness and neglect of our offspring. His grace then proceeded to the religious view of the question, and entered into the history of the customs of the western world on the subject of marriage, which until the Reformation, were considered here indissoluble. After that great event, persons were set at liberty in cases of adultery; and subsequently the marriage of those divorced by act of parliament, took place. With respect to his opinion, and that of his learned and reverend brethren on the bench, his grace observed, that by the divine law there was
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a liberty to marry again, or else unquestionably that reverend bench would, before now, have interposed. He quoted passages from Holy Writ, in the original Greek, and in the vernacular tongue, expressive of the scripture doctrine on this subject, and made a variety of remarks, and used many argument's which we are sorry we are unable to detail. He concluded a very argumentative and eloquent speech by declaring that he thought the measure an act of mercy.—It was to take out of the mouth of the seducer his specious, delusive, and fatal arguments and temptations, to prevent him from recommending himself to the weak by saying he meant nothing dishonourable, and pointing out, a future marriage as a source of future and augmented felicity; the means by which female virtue was but too often and too successfully assailed. He felt it to be his duty, in the hope of attaining some good, to support the motion now before their lordships.
Lord Erskinesupported the motion. He highly complimented the right reverend prelate for the sentiments he had uttered, and dwelt with much eloquence on the institution of marriage, the vast influence it had on society, and the innumerable and inestimable duties and benefits that flowed from it in all our relations, hopes, and prospects. It was most extraordinary that the legislature could permit the foundadation of such a connection to exist in the commission of a crime that struck at its very root, and should enable those to enter into all its advantages, who had treated it with contempt and scorn by the non-observance and violation of all the duties it imposed. The adoption of the proposed standing order did not prevent their lordships from acting in particular cases as might seem to them fitting: but the difference was abundant between the rule and the exceptions. What greater misdemeanor could there be than seductive adultery? A misdemeanor was a private wrong, but a wrong that injured the peace and happiness of society; and surely nuisances and assaults were inferior in the comparison. His lordship painted the picture of a family ruined by this afflicting offence; the woman degraded and forbidden; the children neglected and despised; the husband made a mark for the finger of scorn to point at. He had voted formerly in a minority in the house of commons on this question. He had, in

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near thirty years practice at the bar, been concerned in, or conducted almost every case of this sort in the chief criminal court of the kingdom. Much came to his knowledge that could not come before the court, and the result of his experience was, that the prospect of the intermarriage of the offenders was a very great facility to the commission of the offence. He thought the passing of the motion would be a memorial of their lordships' wisdom.
The Lord Chancellorargued in favour of the motion on various grounds, but rejected the opinion that the offence was much increased of later years. As to the expences of a suit, that must depend upon the circumstances of the particular case. His lordship reviewed and explained the law as it stood, respecting divorces. The intermarriage of the parties could not have been in contemplation when divorces à vinculo matrimonii were first granted. He stated the difference between such a divorce, and one merely à mensa et thoro, and noticed the circumstance of the bond entered into in such cases. He did not impugn the marriages that had occurred under such circumstances as divorces à vinculo matrimonii, but thought that the form of their lordships' proceedings on such subjects required amendment. This was no undue stretch, since the house already demanded m the first instance, the proceedings of the ecclesiastical court, the examination of witnesses, and the verdict of a jury for damages. He admitted that there were cases which men of feeling and generosity would be inclined to relieve, but it was impossible to look at a legislative measure with such feelings. As legislators, what they were to do, was for the general benefit.
Lord Grenvillethought nothing more likely to corrupt the female mind than the prospect held out of an after-marriage with the seducer. Punishment he considered intended entirely for prevention: and the sort of punishment proposed he thought necessary, for the sake of wives themselves, as well as for the happiness of families. He exposed the futility of any argument drawn from an anticipated difference of opinion in the house of commons, since, if that were admitted, it would go to prove the impracticability of two distinct and independent bodies carrying on the work of legislation. He thought the expences mentioned in a suit of this kind much larger than any circumstances seemed to warrant. On the present footing, it
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was impossible for any limitation of such expences to bring relief to the lower classes of society. The present system was a wrong one. It proceeded entirely on the principle of granting a private favour by act of parliament; and the man who could devise a good remedy for the inconveniences attending the present system, would confer a great benefit on the country. He supported the proposition with much force, but considered that more good was still to be accomplished.
Earl Stanhoperose, he said, not to teach divinity to my lords the bishops, but chiefly to oppose the Lord Chancellor's law. He declared that he would lay his lordship flat upon his back, and make him unsay what he had said about the intermarriages of the criminal parties, before he had done with him. His lordship had questioned the validity of those marriages. Why, then, were all the children bastards, and to lose their estates? As for the people at Doctors'-Commons, they were the absurdest fellows in the world. What did they mean by a bond not to do that which they had no right to do? As to pecuniary penalties, if the lawyers did not like to learn some law from him, he should give them a little from Mr. Dunning, who was a very good lawyer. He was once speaking to Mr. Dunning about pecuniary penalties for offences, and Mr. Dunning gave him a sort of definition of a pecuniary penalty. He told him that a pecuniary penalty was only the payment of a sum for doing that which was illegal. A man paid the penalty (say 20,000 l.), and then he had done no more than he had a right to in breaking the law. If the commons rejected the clause proposed to be inserted, would their lordships be so unjust as to refuse the relief they thought proper to give at first, merely to save their standing order? Would not this be individual injustice for the sake of a general theory? He had heard his noble relation (lord Grenville) make one of the finest speeches he ever heard in his life against the slave trade, which the noble lord with the star opposite, (the earl of Westmoreland), thought was very beneficial to mankind, and then his noble relation confuted that practice, which by his speech this night he actually supported. Besides, could not that house pass the bill without the clause? He should not speak at length because there was so thin an attendance on so important a subject.
The Lord Chancellorwith great good

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humour explained his former observations, and shewed the misconceptions into which the noble earl had fallen. He was very sorry that the noble earl had misunderstood him; but was much afraid they should not soon understand each other any better.
The Earl of Liverpoolsupported the bill, and lord Darnley entertained a different opinion. His lordship disapproved of the practice of the courts, so much recommended by a late noble and learned judge, of giving heavy damages in cases, where, to any honourable mind, money could be no compensation.
The house then divided,

For Lord Auckland's motion

28

Against it

12

Majority for the Standing Order

16

PROTEST entered against the Standing Order moved May 2, that in all Divorce Bills that are brought in in future there must be a clause to prevent the intermarriage of the criminal parties.
DISSENTIENT,—1st, Because the Resolution which has been moved this day, with respect to Divorce Bills, appears to us founded merely on a speculation that some good may be produced by it, when no reasonable hope of success has been held out, from the exampe of any other country where this has been tried. And it appears to us, that instead of diminishing the evil complained of, the utmost that can be expected from it is, that it may tend to conceal adultery.
2dly, Because we consider it to be unwise in this house to arrogate to itself the sole right of legislating on this question, and not to allow the other house of parliament the power of deliberating upon so material an alteration in the laws of England.
3dly, Because the right of making a Standing Order upon a public question on which great diversity of opinion prevails, should be exercised with great caution, and must excite jealousy in the other Branch of the Legislature.
PONSONBY, BERKELEY.