§ Amendments reported (according to Order).
§ THE BISHOP OF OXFORD then moved the Amendments of which he had given 231 notice, and moved the omission from the Bill of Clauses 19, 20, 21, 22, 23, and 24. The right rev. Prelate said there were other matters connected with the Bill to which those Amendments did not refer, but which were well worthy of consideration. He believed that the majority of their Lordships were of opinion that it would be of great advantage that the civil action which was at present maintained for criminal conversation should be done away with. His noble and learned Friend had talked of introducing a measure upon the subject at some future period; but he could have wished that he had addressed his vigorous mind to considering how a clause to that effect could be at once introduced. One argument which had operated on the Committee for retaining this action was, that in certain cases the husband was not only injured by the loss of his wife but by the loss of property to himself and family; but that was a matter which might, he thought, be most properly left to the tribunal which the noble and learned Lord proposed to establish, and he did not see why power might not be given to that tribunal in such cases to inflict a fine upon the adulterer, which would be at once a penalty for the crime, and a compensation to the sufferer for the wrong done him. The whole subject might by some such means have been included in the present Bill, and then the judicature of the country would have been purged of what he believed most of their Lordships would agree with him was a monstrous evil—namely, the civil action for damages for criminal conversation. He would next proceed to say a few words with regard to those points to which the Amendments of which he had given notice referred. As he had stated on a previous occasion, the preponderance of his judgment went to the opinion that the great Lawgiver of the Christian world did exclude from the sentence of condemnation pronounced against persons who put away their wives those persons who put them away on account of adultery. Our blessed Saviour, in introducing a greater degree of strictness into the law of divorce, and in his declarations with regard to it, made the exception of divorce on the ground of adultery. He was bound to admit, as far as the abstract question was concerned, that a Christian State ought, if it could without incurring other and greater evils, to give the same amount of liberty as was permitted by the great legislator of all 232 Christian communities; and, therefore, if the question were whether it was lawful for a Christian State abstractedly to provide means, if it could, by which, with safety to morals, this new relaxation could be introduced, he should be unable himself to vote against such limited relaxation. But the question before their Lordships was of a very different kind. A measure was proposed to them under this profession—that, whereas now only the rich could obtain this relaxation by separate privilegia, justice required that it should be carried down to the lower orders of society. Now, in dealing with the Bill as a practical question, he objected, in the first place, that it would not carry into effect its professed object. It was perfectly impossible that the class for which they were mainly asked to introduce this new relaxation could obtain any relief whatever from the Court which it was proposed to found under the Bill. The funds which would be required for putting the machinery of that Court into action could not be provided by the poor, and the poor were just the class to which he would most desire to give a remedy, if it could be done without incurring greater evils. By altering the law as now proposed their Lordships would give to the comparatively wealthy the power of putting away their wives under certain conditions, while withholding it from the great mass of the population. That, as it appeared to him, was a strange way of fulfilling the profession with which the Bill was introduced; and he believed it would be doing a great wrong to society, inasmuch as it would make the law of the land say that such divorces were lawful, and yet would withhold the application of the law from the great bulk of the people, who stood most in need of such a relaxation. Moreover, he maintained that they should not propose any alteration of the existing law which affected in this way the whole of family life, without showing that in making provision for the relaxation which they were about to introduce they were not doing great evil in other respects; that they were not shaking the very foundations of family life and endangering its purity throughout all classes of the community; because, although the thing itself might be right, he would remind their Lordships that the abstract lawfulness of the proposed relaxation did not foreclose the argument that the way in which they were asked to introduce it would give rise to other certain 233 and great evils which would more than counterbalance the anticipated good. For his own part, he could not for a moment doubt that by introducing this perfectly novel principle they would do more to shake the sanctity of marriage among all classes of the community than by almost any other measure that could be adopted. When it was said that under the law of Christ a man was allowed to put away his wife for adultery, and that therefore a Christian Legislature was bound to give the same degree of relaxation, without any limitation or restriction, he would beg their Lordships to remember that the same law laid down that marriage was honourable for all; and yet a Christian Legislature had never deemed it a wrongful infringement of the liberty of man to marry to enact that no person should be permitted to contract marriage until he was twenty-one years of age without the consent of his parents. Here was at once a restriction upon what appeared to be divine law. In all such matters they had not only to consider the abstract question of whether so and so might be allowed, but likewise whether the mode in which the assertion of the abstract principle of right was to be made would obiter draw on evils so great as ought to restrain them from proceeding in that particular way; and it therefore seemed to him, inasmuch as they could not stop where the present Bill stopped, inasmuch as they were not prepared to give the courts sufficient power and authority to guard against collusion and other evils, inasmuch as the Bill would not extend the proposed relaxation to the great mass of the population, that they should pause before proceeding further in such a line of legislation. There were other grave considerations in this matter. Were they prepared, by passing this Bill, to say that the law of the Church and the law of the State should be in direct opposition to one another; At all events they were bound, if they meant to maintain the Established Church, and not to burden the consciences of its ministers, to give the Church an opportunity of considering the question with the view of having its law altered pari passu with the law of the State. There was yet another point to which he begged the attention of their Lordships. The Bill proposed not only that a husband should be permitted to put away his wife for adultery, but also that a wife should be allowed, under certain conditions, to put away her husband. Now, 234 would any of their Lordships tell him that there was the shadow of a foundation in the Gospel for such an extension of the right of divorce? It was distinctly stated that a husband might put away his wife, but no general principle was asserted in the Gospel which would equally entitle a wife to put away her husband. It seemed to recognise an equality in the sexes; but the truth was, that though the sin might be equal in each—though he denied not that the sin was equal in each—yet the social crime was different in magnitude as committed by the one or the other; and our blessed Master, while allowing a husband to put away his wife for adultery, because all the highest purposes for which marriage was instituted by God would be defeated by the infidelity of the wife, never extended the same right to the other side. He asked their Lordships was it right, in the face of that interpretation of the Holy Word, supported as it was by the greater part of Christendom—in the face of the law of the Church—was it right to put this interpretation upon the Lord's Words? Was it right to extend this licence to the whole population—nay, more, was it right to give to a limited portion only of the community a licence which would be practically withheld from the greater part of it—on grounds so slender and uncertain? Taking the Bill as it stood—a law solely for the rich and not for the poor—he trusted that their Lordships would not pass it another stage without striking out the clauses to which he thus ventured to object. The duty which he was now discharging was a very painful one, especially to one occupying the position which he had the honour to hold in that House. He knew it would subject him to great misrepresentation. Those who were suffering under individual instances of hardship, deeply as he sympathised with them, would think that he was doing everything in his power to prevent their release from a position which they imagined to be an unexampled evil; but, believing that the deep foundations of family life rested upon the sanctity of the marriage contract—believing that many and great evils would arise from that licence which would inevitably follow the adoption of the Bill as it stood—believing that family life, valuable as it was to every one, was most valuable to the poor man, who felt that amid the many hardships of his lot it was the one thing which God had given to him for his strength and comfort—and believing that no good could result 235 from a general relaxation extending to the wife as well as to the husband, he trusted that their Lordships would not pass the Bill without omitting the clauses to which he took objection. The right rev. Prelate concluded by moving the omission of Clauses 19 to 24 both inclusive.
THE LORD CHANCELLORsaid, he was sure their Lordships could not have failed to see that his right rev. Friend confused two principles which were perfectly distinct; and he proposed in effect to strike out from the Bill all that formed the foundation on which it was introduced,—viz., the necessity of giving a judicial character to that which was substantially a judicial proceeding. His right rev. Friend had argued as though it was proposed by the Bill to make it obligatory on any one to insist on a divorce; but its objects was to give facilities for divorce, which he could not believe was inconsistent with the Scriptures; which, in like manner, did not make divorce compulsory but only permissive. He (the Lord Chancellor) started with the assumption that there was nothing in the Scriptures that forbade a husband from putting away his wife for adultery; and, starting from that point, he would ask, what ought to be the course of sensible legislation on the subject? Surely, it must be to give to a person complaining of adultery such facilities for divorce as the nature of the case permitted and as were not inconsistent with the Divine Law. What had been the course hitherto pursued in this country? On the pretence that divorce à vinculo was unlawful, the law of this country absolutely and entirely forbade it; but nevertheless, in every case where a person had the pecuniary means of coming to their Lordships' House for a private Act of Parliament, it enabled him to obtain redress substantially as a right. Now, this Bill provided that that which had hitherto been obtained by parties as privilegia—but which were invariably claimed as a right—should be in future granted by a regular tribunal as a right. His right rev. Friend complained that there would be inequality in the working of the law, and said that the Bill would be a nullity and a mockery, because persons in the lower class of life would be unable to obtain the redress granted to the rich. But that would be a reason for refusing to legislate on almost every subject. The rich had necessarily a great advantage over the poor in all cases requiring an appeal to a court of law, as such proceedings were, in 236 the nature of things, always more or less costly; but was that any reason why the Legislature should not do as much as it could in the way of giving relief to all? The object of the Bill was to render proceedings for divorce less complicated, less difficult, and less expensive than now; and it was no argument against it that all would not be able to avail themselves of the alteration. To retort an argument used by the right rev. Prelate in the discussion just concluded—if we cannot make the law perfect, that is no reason why we should not make it as perfect as possible. When he first introduced this Bill, he confined the relief to the husband, and to the wife simply to one case—the case of incestuous adultery; but in the Committee it was thought that the relief to the wife might reasonably be extended to certain other cases—such as when a husband had not only committed adultery but deserted his wife for a certain number of years; when he was guilty of cruelty along with adultery; and when he had committed bigamy. The Bill, therefore, had been altered so as to give relief to the wife in those few cases; but it was not deemed prudent to carry the principle further. He did not wish to speak lightly of adultery on the part of a husband, but he quite coincided in the doctrine laid down by the right rev. Prelate as to the difference between adultery on the part of the wife and that of the husband. It would be mere prudery and affectation to say that the evils were socially the same. The committal of adultery on the part of the husband was consistent with a subsequent reconcilement of the wife, and the parties might live together happily afterwards; but the thing was, in ordinary cases, impossible when the same sin was committed on the part of the wife. He believed the Committee had arrived at the best conclusion that could be come to on the subject, when they granted relief to the wife in these few cases. If, however, his right rev. Friend was correct in saying that to grant a divorce in any case at the instance of the wife was to do an act forbidden by the Scriptures, then, of course, it ought not only to induce their Lordships to pause, but at once to reject that part of the Bill. He could not, however, so interpret the passages to which the right rev. prelate alluded. If there was Scriptural authority for saying that it was lawful for a husband to put away his wife for adultery, did it not in the present state of society follow as a corollary that the con- 237 verse of the position was true, and that it was not unlawful for the wife to put away her husband? He did not say it followed that it might always be done for the same cause; but he could not agree with his right rev. Friend in an interpretation which amounted to entire prohibition. He repeated that the proposal of his right rev. Friend would have the effect of rendering the whole Bill nugatory, because if in no case the relief of a divorce à vinculo was to be granted all the remaining provisions of the Bill fell to the ground. If their Lordships though there ought to be no divorce under any circumstances whatever, then let them adopt the proposition of his right rev. Friend; but if they did so, he would conjure them to come positively to the determination that none of the petitions for divorce which came before their Lordships' House as privilegia should hereafter be listened to.
§ LORD REDESDALEsaid, he thought they ought to treat this question as one affecting the morals and habits of the people at large. Hitherto divorce had been a thing withheld from the people at large, and the consequence was that the marriage law was held more sacred in this country than in any other country in the world. They were now going for the first time to make divorce possible by a legal process, and he cautioned them that if they did so it would not be possible to confine cases to the court constituted by the Bill. They would find themselves compelled to act up to their theory, and to provide a cheaper tribunal for the lower classes than that created by this Bill. But it followed from their thus lowering the character of the tribunal they would lower the character of the inquiry, and they would thus get rid of much of the security which was guaranteed by the constitution of the present court for the stability of the marriage tie. At present, where tempers differed, the parties felt that they must nevertheless remain together and accommodate themselves to each other, and this knowledge, in his belief, had caused the marriage state to be so happy in this country. A Motion had already been proposed to extend divorce to cases of desertion, and, depend upon it, if once the door were opened the example of Germany and other countries would be followed, and divorce would be allowed for incompatibility of temper. Who would be hurt by the rejection of these provisions? There were very few persons who were unfortunately 238 under the apparent necessity of seeking for the dissolution of the marriage tie—and those parties might feel some injury by the rejection of this Bill. But who were affected by this Bill in an injurious manner, although indirectly? Why, every single marriage was touched more or less by the principle of the present change in the law. It was, therefore, expedient for the House to consider how far divorces, when granted, were conducive to the happiness of the parties concerned. If their Lordships were to examine the history of twenty or thirty divorces, they would not find more than two or three instances in which anything like happiness had been enjoyed by the parties who had obtained a divorce. In numberless cases no re-marriage took place, and where there were children the greatest distress and inconvenience were experienced. If Parliament were to determine that divorces à vinculo should be no longer granted, that decision would only prevent three or four divorce bills a year from being brought forward; and would, perhaps, only affect fifty or sixty couples, while the change affected the whole marriage law of the kingdom. He should cordially support the Amendment of the right rev. Prelate.
LORD CAMPBELLsaid, that the noble Lord (Lord Redesdale) had always been consistent in maintaining that marriage was, by the Divine law, indissoluble. The noble Lord was a member of the Commission over which he (Lord Campbell) presided, and in which the noble Lord (Lord Redesdale) stood alone. That Commission was composed of men of all parties, and the noble Baron was the only member who contended that divorces for the adultery of the wife ought never to be granted. The noble Lord now said, that if their Lordships rejected these provisions they ought never to allow petitions for divorce Bills to be presented to them. But were their Lordships prepared to come to such a determination? For 200 years the husband had had this remedy as a matter of course. If he had not been guilty of misconduct, if there had been no collusion and no blame on his part, and if he proved adultery on the part of the wife, the marriage was dissolved. Although this divorce took the form of a legislative act, it was, in fact, a judicial process. That had been the practice for two centuries, and it had continued without any remonstrance from the right rev. Prelates or from any other members of their Lordships' House. Were 239 they now prepared to say that, however immaculate and exemplary the conduct of the husband might have been, if his wife were seduced he was to have no redress? Did the noble Lord mean that he was to live with her again—that there was to be condonation, as in that scene in the German play of The Stranger—and that the parties should shake hands and return to the marriage state? But, then, if there could be no condonation for the adultery of the wife, ought there not to be separation? The Divine Founder of our religion certainly permitted divorce for the adultery of the wife, and he trusted that their Lordships would not be prepared to change that law, which had substantially existed for so many years, and under which so much domestic purity had existed. The right rev. Prelate (the Bishop of Oxford) did not consider the marriage tie indissoluble—nor, indeed, could he, for he was not a Roman Catholic, and did not regard marriage as a sacrament. The right rev. Prelate would allow marriage accordingly to be dissolved for the adultery of the wife. But was the right rev. Prelate content with the present state of things? He said that he wished all persons to be placed on the same footing in regard to the administration of the law. At present, however, the man of moderate means was absolutely cut off from the application of the law as it stood. Did the right rev. Prelate, however, wish the law to remain as it now stood? Upon that point his right rev. Friend was obscure. He (Lord Campbell), however, believed that by passing the present measure their Lordships would effect a great improvement and would remove a great reproach from our judicial procedure. The Commission appointed by Her Majesty to consider this subject had, with the exception of the noble Friend, unanimously recommended this Bill. As some years had now elapsed he might mention that the Report of the Commissioners was drawn up by the present right hon. Member for the University of Cambridge (Mr. Walpole), no rash reformer, it must be admitted, and a man not likely to disregard the cause of religion and morality. Instead of an Act of Parliament being preceded by an action for criminal conversation, and a suit in the Ecclesiastical Court for a divorce à mensâ et thoro, and then canvassed in both Houses of Parliament, a judicial tribunal would be established by which on proof of the offence a remedy might be given. He agreed with the right 240 rev. Prelate that the remedy ought to be afforded to the poor as well as to the rich—to all husbands who could prove themselves free from any imputation of misconduct in the marriage state, and who had had the calamity of having an unfaithful wife. In one instance their Lordships had allowed a husband, so situated, to sue in that House in formâ pauperis, and he knew no objection why husbands should not be allowed to sue in formâ pauperis before this new tribunal, and have the means supplied to them, if they could make out that they had no means of calling witnesses and meeting the necessary expenses of having their complaints heard. He did not see why the privilege should not be converted into a right of general application. He knew that the Ecclesiastical Courts would not dissolve marriage, because they were not empowered by law to do so; but he knew nothing in the law which declared marriage to be indissoluble. Archbishop Cranmer was of opinion that a remedy should be given to all those who could prove the infidelity of their wives; and the Commission to which Cranmer belonged reported, that there ought to be a legal tribunal, whereby, on proof of adultery by the wife, marriage might be dissolved. He was not aware that it required any act of Convocation to allow their Lordships to proceed with this Bill; and, with all the respect which he felt for the Church, he considered marriage a civil contract on which Parliament had an undoubted right to legislate. He had heard a right rev. Prelate say it was exceedingly wrong for their Lordships to pass the Bill allowing marriage without going to church, because it was a purely spiritual proceeding, over which the Church, and the Church alone, had jurisdiction; but, with all his respect for the Church, he protested against that doctrine. He believed that if their Lordships should reject this Bill they would commit a great error, by continuing a state of the law that was a disgrace to this country.
THE BISHOP OF ST. DAVID'Sthought the noble and learned Lord who had just spoken had not done justice to the argument of the noble Lord the Chairman of Committees (Lord Redesdale), and had done palpable injustice to the argument of his right rev. Friend (the Bishop of Oxford). He did not observe that any part of the able argument of the noble Lord (Lord Redesdale) turned, in the slightest degree, upon the peculiar 241 opinion which he held, as to the absolute indissolubility of the marriage tie. The noble Lord appeared to him to have carefully avoided any reference to that opinion, and although he (the Bishop of St. David's) did not share in that opinion, nevertheless he could, with perfect consistency, concur in every part of the argument of the noble Lord. It might be true that, entertaining that opinion, the noble Lord would not view with dissatisfaction the abolition of the remedy now provided as privilegia; but, whether that remedy was abolished or not, his argument, being entirely irrelevant to it, would remain precisely the same. He (the Bishop of St. David's) himself was not very greatly alarmed at the prospect of the abolition of that remedy, because, as it clearly applied to a very small class of cases, whether it remained or was abolished was of very slight importance. But the ground of his objection to the present measure was not that he was not content that that remedy should remain—the only question being, whether it should or should not be extended. With regard to his right rev. Friend, he did not observe that he objected to the continuance of those privilegia, provided the remedy was purified of some of the preliminary abuses, which were the strongest, if not the only objections against it. Whether the remedy was provided in its present or in another form was a question of no importance, compared with that which the noble and learned Lord (Lord Campbell), to his great surprise, had overlooked, and to which the main arguments of the noble Lord (Lord Redesdale) and his right rev. Friend were addressed—namely, the effect which might be expected to ensue, in all relations of society, from opening to all classes the prospect of the dissolution of the marriage tie. The real question was, whether there were any such grievances for which this Bill provided a remedy as would counterbalance the evident evil which had been pointed out as resulting from this great change—a change, the operation of which was clearly to lower the sanctity of the marriage tie. He should not have troubled their Lordships except for the single purpose of recalling attention to what, he apprehended, was the main point of the question.
THE EARL OF DONOUGHMOREsaid, that as he took part in the discussion in the Select Committee, he wished to offer a few words in explanation of the judgment which he had formed upon this subject. The right rev. Prelate (the Bishop 242 of Oxford) admitted that divorce for adultery of the wife should be permitted; but he went on to say there were various reasons of policy which should prevent their giving relief to the husband, except by the circuitous mode of a private Act of Parliament; and the right rev. Prelate said, that if they passed this Bill they would place the law of the State in direct contradiction to the law of the Church. As far, at all events, as permitting divorce for adultery of the wife, the law of the State, according to the right rev. Prelate, had the authority of Holy Scripture in its favour; but the law of the Church was against it. What was the law of the Church? It was a remnant of old Roman Catholic times—a remnant of those laws which were made by the priesthood for the purpose of obtaining complete control over the people, and an invention to raise quibbles with the object of levying taxes for dispensations on the marriages of the whole population of Europe. It was confessedly by mere accident that this part of the ecclesiastical law was retained in our jurisprudence. As had been stated by his noble and learned Friend (Lord Lyndhurst), a commission of learned persons, ecclesiastics and laymen, was appointed by King Henry VIII. to consider what changes should be made in the law in consequence of the complete disruption of our Church from the authority of the See of Rome, and the result was a book, written by Archbishop Cranmer, which laid down the principle that divorce for adultery of the wife should be permitted. In the latter part of his speech, the right rev. Prelate said there was no express authority in Scripture for divorce for adultery of the husband; but he seemed to forget what was the condition of women relative to their husbands in those times. Women were slaves; they were not the equals of the men; they had none, or scarcely any, civil rights; and it was impossible to conceive a case in which women would or could appeal to any tribunal for redress against their husbands. One of the great efforts of the Divine law was to raise the condition of women, and to place them upon a footing upon which they had never previously stood, and in a position in which they were not now placed in any country which did not enjoy the blessings of Christianity. All that was intended to be bestowed upon man by that law was also intended to be conferred upon woman. Thus, fair reasoning could lead to no other conclusion 243 than that the liberty given to man to put away his wife on account of adultery extended equally to the wife in similar cases. Any argument based upon a strict literal interpretation of Scripture would lead to dangerous results. The name which the right rev. Prelate (the Bishop of Oxford) bore was associated with an act of justice and mercy, one which had conferred honour upon that name and upon the country which had acted upon the advice of his illustrious relative, and declared the absolute equality of men, and that no man could lawfully be a slave to another. But if in those days the Holy Scriptures had been interpreted in the rigid sense which the right rev. Prelate wished now to be adopted, it might then have been said with great force that slavery was approved of and spoken of in Scripture as an institution; that a slave was sent back to his master by St. Paul; and that therefore it would be acting against the law of our Saviour to abolish slavery. That argument would have been equally convincing as that now used to induce the Legislature to withhold from a wife the power to separate from her husband, which the latter already enjoyed in respect of his wife. The noble Lord (Lord Redesdale) had objected to the Bill, that it might be made to go even further than was at present intended. He (the Earl of Donoughmore) trusted that it would go further. He hoped the day was not far distant when Parliament would adopt a general law dealing with this subject in the plain common-sense view which had prevailed in Scotland for years without having inflicted any injury to the morals of the people—that we should recognise the fact that a wife had the same rights of divorce as the husband. Great stress had been laid by the noble Baron and by both right rev. Prelates upon the danger likely to ensue from the liberty of divorce which the Bill would give; but in reply to that apprehension, he would refer to the case of Scotland, where the liberty had existed for years, and without producing any deteriorating effect upon the morals of its people.
THE EARL OF DESARTobserved, that at present divorce was not legal, but in extreme cases the aggrieved parties had an appeal to that House. By the Bill, however, it was proposed to make what was now an exceptional act a legal habit, and if that were done, it must descend below the point at which it was now intended to stop. Although the Bill proposed 244 an unexceptionable tribunal to administer the law, when the public found that divorce was a legal habit, they would not be content with that arrangement, and he feared that the result would be the establishment of some kind of petty sessions' divorce tribunals, which would degrade marriage from its present character to one of connubial concubinage. He thanked the right rev. Prelate (the Bishop of Oxford) for stating his views so clearly as he had done, and hoped they would be adopted by the House.
THE BISHOP OF SALISBURYsaid, that as the noble and learned Lord (the Lord Chief Justice) had spoken of the noble Baron's (Lord Redesdale's) opinions as very peculiar ones, he felt bound to avow before their Lordships that his own convictions were clear that the noble Baron was right, and that the Bill before their Lordships' House was founded on wrong principles. He did not rise to justify this conclusion by any reference to the canons of the Church or ecclesiastical law, but he rested his argument simply and solely on the Word of God. He felt the great difficulty of entering upon such an argument in that House, but he also felt that one holding his office and having his convictions was bound to state to their Lordships, and try to vindicate in their hearing what he believed to be the truth of God's most Holy Word: and he was sure that their Lordships would patiently listen to such a statement of his opinions. To come to a right understanding of our blessed Lord's teaching on this momentous question, their Lordships must remember the provisions of "the writing of divorcement" to which reference was made in the Gospel of St. Mark, and, what was of more importance, in those two passages of St. Matthew's Gospel which were constantly referred to as sanctioning a relaxation of the present law of our Church and nation. The writing of divorcement, the libellum repudii, allowed by Moses, provided both for separation and re-marriage. The husband said, "accipe libellum repudii et esto à me abjecta et cuicunque viro permissa." But our Lord cancelled these provisions, and made separation and re-marriage impossible. Thus it is recorded of Him by St. Mark that He said, "If a woman put away her husband and be married to another, she committeth adultery; and in St. Matthew we find the same judgment of our Lord recorded, though in a different way. Our Lord's words in the 5th chapter 245 of St. Matthew are "Whosoever shall marry her that is divorced committeth adultery;" and His words as recorded in the 19th chapter are almost the same: and in both these passages it is observable that in speaking of the woman divorced the article is omitted—that it is not but which would include every divorced woman, whatever was the reason of her divorce. From these passages it seemed to him (the Bishop of Salisbury) plain what our Lord's mind was with regard to the woman—that separation so as to re-marry was impossible. Nor was it less clear with regard to the man. Thus He said, according to St. Mark, "Whosoever shall put away his wife and marry another, committeth adultery against her;" and again, according to St. Luke, "Whosoever putteth away his wife and marrieth another, committeth adultery. He (the Bishop of Salisbury) thought that no teaching could be more plain than this, and he could come to only one conclusion—viz., that our Lord had annulled the provisions of the libellum vepudii, and that divorce and re-marriage were, according to the law of Christ, impossible. He, however, admitted that there was one exception allowed for divorce—not for divorce and re-marriage, but for separation without the power of re-marrying—and that was in the case of adultery. This one relaxation of the law of our Lord is recorded both in the 5th and 19th chapters of St. Matthew. In the former the words are "Whosoever putteth away his wife, saving for the cause of fornication, causeth her to commit adultery." In the latter passage the words are, "Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery." Nor was this relaxation coufined to one sex. Our Lord made man and woman entirely equal in this matter. The case of exception included the woman as well as the man. The words of St. Paul, in the 7th chapter of his First Epistle to the Corinthians, "If she depart," imply that it was possible for the woman in some case—viz., in that one case declared by our Lord—to get a divorce from her husband; not such a divorce as to be re-married, but only such as would enable her to act upon the revelation of God's mind given by the same Apostle, "let her remain unmarried, or be reconciled to her husband." And even this one relaxation was still further guarded; though they who availed themselves 246 of it would not incur the sin of adultery, they would be doing that from which our Lord, through His Apostle, would dissuade them. The higher standard to which he would bring them He set before them in these words of his Apostle—"Let not the wife depart from her husband. Let not the husband put away his wife." He (the Bishop of Salisbury) had thus laid before their Lordships what he believed to be the mind of God, in the new dispensation, with regard to the subject on which their Lordships proposed to legislate. His conclusion was that it was contrary to the teaching of our blessed Lord for a husband to put away his wife, or a wife to put away her husband, and marry again. He entreated their Lordships to weigh well what they were doing, because it was his most solemn conviction that they would, if they passed this Bill, not sweep away (as it had been said in the debate) only the relics of the Roman Catholic religion, but pass enactments contrary to the plain letter of Holy Scripture. He entreated them to pause before they arrayed all those who read Holy Scripture as he did against any decree which man might make on the subject—he entreated them not to give their verdict against what he could not indeed say was a perfect consensus of all interpreters of Holy Scripture, but which had been the law of our country for ages, and which he in his conscience believed was the true interpretation of Holy Writ, and the only one which could keep the law of marriage, and the administration of that law, at the level of those high sanctions with which our Lord has Himself shown us marriage was surrounded before the Fall. He would only add, that one thing had at any rate been gained by this discussion. It had been admitted on all hands that, if the present law, which made marriage indissoluble, was right, wealth and station ought not to purchase exemption from its sanctions; and that if it was wrong, and that some relaxation of it was conformable to the mind of our Lord, the poor should, as Christians, enjoy the same privileges as the rich.
VISCOUNT DUNGANNONsaid, that though defects might exist in the present system, he could not but fear that the remedy proposed was far worse than the disease, and that if you once made divorce a part of the law of the land it would be the means of introducing great confusion into society and causing vast unhappiness 247 to the community. He could not help concurring with what had fallen from the noble Lord the Chairman of Committees, and hoped the House would support the Amendments of the right rev. Prelate. He believed that the difficulty which had hitherto existed in obtaining a divorce was in a great degree the cause of the morality which existed in this country with regard to the observance of the marriage state. The morality would be shaken to its very foundations by the present measure, and he could not therefore give his sanction to a Bill which, to say the least of it, was fraught with danger to the morality, the well-being, the order of society, and the happiness of the community at large.
§ THE EARL OF DERBYMy Lords, I am not going to prolong this discussion, or to enter into the very elaborate arguments we have heard adduced in support of the views entertained with regard to the dissolubility or the indissolubility of the marriage tie. I cannot help observing, however, that, even among those who agree with the proposed Amendments of the right rev. Prelate, there is a very considerable difference of opinion on this subject. Undoubtedly the right rev. Prelate (the Bishop of Oxford) did not contend for the indissolubility of the marriage tie, and admitted that there existed high authority for asserting that in certain cases, and under certain conditions, the marriage tie is dissoluble. The right rev. Prelate, who has since addressed the House (the Bishop of Salisbury), appears also to consider that the marriage tie is, to a certain extent, dissoluble as regards the man; yet, if I understood him rightly, the man is, under no circumstances, entitled to marry again. My noble Friend (Lord Redesdale) again contends that, under no circumstances, either by the law or the Gospel, is the marriage tie dissoluble. I did not understand the right rev. Prelate (the Bishop of Salisbury) to contend that the marriage tie was indissoluble. [The Bishop of SALISBURY: Yes, I did; but I said that the woman might be "put away."] Well, that is a nice distinction, which I cannot very well understand; but I will not enter into that point. I rose, my Lords, mainly for the purpose of putting to the noble Lord on the woolsack, or to my noble and learned Friend (Lord Lyndhurst), a question which, to my mind, is of considerable importance, and which may, to a certain extent, influence the vote which I am called upon to give on this question. I cannot concur 248 with my noble Friend at the table (Lord Redesdale) in the indissolubility, however much I may respect the sanctity of marriage. I do believe there are cases in which it is competent for human authority to give its sanction to the dissolution of the marriage tie. I cannot feel satisfied with the existing state of the law, because it says one thing while the Legislature says another, and because, too, under it, there is a great disadvantage, a great inequality, as regards the condition of the rich and the poor. Assuming that marriage may be dissolved in certain cases, the question then arises, by what agency shall that process be effected? My noble Friend (Lord Redesdale) says very consistently, "By no means at all; the Legislature should admit of no exceptions." But I say, not admitting that doctrine of indissolubility, if the marriage tie is to be dissolved at all, let the law of the land have an equal operation, and do not accomplish this object by exceptional legislation, setting aside the law. I am, therefore, altogether favourable to the principle of this Bill, and I confess I have been unable to hear from the authorities quoted tonight anything in Scripture or anything in reason which should prevent the Legislature from dealing with this question. When, however, I look to the probable consequences of passing this law, to the consequences of facilitating the dissolution of this, the most sacred of ties, I confess I think we are bound to regard those consequences—we are bound to ask whether by this legislation we are not sanctioning great laxity with regard to marriage, and giving facilities for the dissolution of that tie, which, except under certain circumstances, ought never to be dissolved. Are you not by this Bill offering great temptations to collusive divorces—to adultery practised by the connivance of the husband or the wife for the purpose of obtaining a divorce? If you are, then I say you are entering upon a most dangerous course of legislation, and one against which it will be exceedingly necessary to guard. Now I cannot but own that if you give facilities for obtaining divorces to the middle and lower classes—classes by whom at present the idea of a divorce is not to be entertained—I fear it may tend to collusive adultery; I fear that convenient arrangements may be made between the parties for the purpose of procuring a divorce; that where persons have become mutually disagreeable, acts will be committed for the 249 very purpose of gratifying their mutual inclination and of entering into a separate marriage. This would be a serious evil. and one against which it is right we should take some precautions. Now, my right rev. Friend (the Bishop of Oxford), if I may be permitted to call him so, has given notice of an Amendment which appears to me to introduce a sufficient, or, at all events, a very considerable check upon what I fear may be the consequence of the legislation we are now contemplating. He has given notice of his intention to introduce, after the 24th clause, a proviso which, in the case of a divorce, prohibits the party who has been guilty of the adultery from obtaining, perhaps, the very object he had in view—namely, a marriage with the person with whom that adultery had been committed. Such a provision, I say, would in my opinion meet, to a great extent, the precise danger we apprehend. I know not if it be possible for this Bill to pass during the present Session of Parliament; but, at all events, it deserves the gravest consideration, and my vote as to the Amendment of my right rev. Friend—the effect of which I no not deny will be to put an end to this Bill altogether—will be very considerably influenced by the answer which will be given by my noble and learned Friend (Lord Lyndhurst), or by the noble Lord on the woolsack, to the question I am about to put. I am disposed to vote in favour of the Bill and against the Amendment; but what I want to know is, whether, in the event of the rejection of this Amendment, the noble and learned Lords are prepared to adopt the proviso to which I have alluded?
§ THE EARL OF ABERDEENwished to remind their Lordships that, by the law of Scotland, the very check which it was now proposed to introduce into this Bill was enacted. The persons who were proved to have indulged in adulterous intercourse with each other were prohibited from marrying; and he entirely concurred with the right rev. Prelate in thinking that it was matter for grave consideration whether it would not be of advantage to introduce some such prohibition into the law of this country.
§ LORD LYNDHURSTdid not rise with any intention of entering into the discussion of the question. He wished, however, to inform their Lordships that such a provision was discussed in Committee, and was only lost because the numbers were equal. For his own part, as he had 250 supported the introduction of such a provision when the Bill was before the Committee, he should be prepared to support it in the event of it being again proposed.
THE LORD CHANCELLORsaid, he did not consider that the Bill would be improved by the introduction of such a provision, because there was experience to show that such a provision contained something radically wrong. It was one of the standing orders of their Lordships' House that no Bill for a divorce should be introduced which did not contain a clause prohibiting the marriage of the persons who had been guilty of the adultery complained of; but there was no one instance in which that clause had not been struck out, because such a clause did not prevent collusion. There were many instances in which such a restriction had been avoided by gross misconduct, for care had been taken that the act of adultery which had been committed should not be discovered to have taken place between the persons who wished to marry. Such a clause, therefore, was most objectionable, and the same objections would apply to the provision now proposed.
LORD CAMPBELLsaid, he entirely approved of the restriction under consideration, and believed its adoption would prove a very salutary check. He regarded the existence of such a safeguard in Scotland as the principal reason why the facilities for divorce in that country had been found consistent with the preservation of the purity of morals; and he thought it would be dangerous to pass the Bill without such a restriction.
THE BISHOP OF OXFORDsaid, he did not rise with the intention of addressing their Lordships upon the original question, but he was anxious to say a few words in reference to what had fallen from the noble Lord opposite. He thought that it would be in the recollection of the House that he had never alleged that any canon of the Church laid down the law upon the matter, nor had he denied that marriage in its essence was other than a civil contract. The noble and learned Lord opposite had quoted what he himself looked upon as a great authority—the opinion of the Reformers of the English Church—and he had pointed out that Cranmer was in favour of divorce on account of adultery, as also was the Reformatio Legum. Now, the Reformatio Legum proposed to allow divorce on account of adultery, but at the 251 same time, it proposed to allow it for many other causes. If a man were absent from his wife for two years, the Reformatio Legum proposed that the wife should be allowed to marry again, and if the husband subsequently returned without being able to give any valid reason for not having communicated with the wife, the second marriage was held to be valid and binding. There was, however, a strong check against collusion, for in such a case the first husband was condemned to banishment or perpetual imprisonment. [The Earl of DERBY—"He would not be so foolish as to come back."] He did not mean to apply an argumentum ad hominem to the noble Lord opposite, but what he wished to point out was, that although it was perfectly true that the Reformatio Legum proposed to allow divorce in cases of adultery, that provision was, at the same time, accompanied by most stringent provisions against adulterers—namely, the penalty of perpetual imprisonment, and that provision entirely removed the moral objection which he entertained towards the present course of legislation. There was one point which had been advanced with which he could not agree, and that was, that the present law was more unfair to the poor than the altered law would be. By the present system divorce was placed out of the reach of all with very few exceptions, while by the altered law it would be placed within the reach of all who were able to afford it, and it was better, he believed, to allow an opportunity for showing particular exemptions from a universal law than to make a universal law the benefits of which could only be enjoyed by the rich. He believed upon his conscience that the Bill would give no real relief to the poor, but that, on the contrary, it would tend to set class against class, and to relax in English society those stringent rules which had hitherto proved so advantageous.
§ On Question, their Lordships divided:—Content 43; Not Content 10: Majority 33.
§ Amendment negatived.
THE BISHOP OF OXFORDthen moved, to insert at the end of Clause 24 the following words:—
Provided always that it shall not be lawful for a husband or wife who shall have been found guilty of adultery to intermarry with any woman or man with whom the adultery has been proved to have been committed.
§ Amendment agreed to.
LORD DENMAN,who spoke from the 252 Opposition benches, proposed to insert, between the 15th and 16th Clauses, the following:—
And further, the said Court may order such divorce in case of desertion, if not assured by evidence that the husband was not at the time of such desertion, or has not since been, cohabiting with another woman.
THE LORD CHANCELLORcould not accede to the Amendment, which he thought would only embarrass the Bill.
§ Amendment negatived.
§ Amendments made; Bill to be read 3a To-morrow.
§ House adjourned till To-morrow.