COMMONS' AMENDMENTS CONSIDERED.

HL Deb 24 August 1857 vol 147 cc2014-68

Order of the Day for the consideration of the Commons' Amendments read.

THE LORD CHANCELLOR moved, That the said Amendments be now taken into consideration.

LORD REDESDALE

said, he felt it his duty to propose that these Amendments be taken into consideration that day six months. He trusted it would not take long to explain his views on the subject, but at the same time it was necessary that he should enter a little into several points which induced him to think that their Lordships could not at present take the Amendments into consideration. The Bill was unquestionably a measure of the greatest importance, but it was not one of great urgency. He would state three grounds on which he thought that their Lordships ought not to proceed with the consideration of the Amendments. The first depended on the character of the alterations made in the Bill by the House of Commons, which were of such magnitude and importance that they ought not to be hurriedly discussed or hastily decided upon. In the second place, when it was recollected what had occurred during the present Session, their Lordships might fairly be of opinion that great advantage would arise from giving the country further time to express its wishes on the subject; and the third consideration which induced him to make the Motion of which he had given notice was, that in the relief several important particulars which was supposed to be obtained by the Bill, was not obtained; that therefore the measure was imperfect, and, as an imperfect measure, ought not to be further proceeded with. With respect to the Amendments made by the Commons, he should not detain their Lordships long, except on one or two points. He would at once admit that some of the Amendments made in the other House were improvements upon the Bill as it left their Lordships' House; other Amendments, again, were of little moment either the one way or the other, and some were grave in their character and objectionable in their effect. With respect to the alteration made by the addition of three Puisne Judges, he did not regard that as a change materially affecting the character of the Court—and he would now advert to the first important alteration—namely, the introduction of local jurisdiction in cases of judicial separation. Here he took a very decided objection both as to the principle introduced and the manner in which that principle was carried out, as well as to the local courts proposed to be constituted. The Bill, as amended, proposed that the sentence of judicial separation might be obtained by the husband or wife from the Judges of assize or from quarter sessions. Now, even as to the Judges of assize, there were reasons rendering that course not entirely free from objection; but he thought that the Court of Quarter Sessions was the most objectionable that could be selected for the purpose. The provision would introduce into the Court of Quarter Sessions, where all the magistrates of the country might assemble, something like the trial of the action for crim. con. The justices assembled at a Court of Quarter Sessions were not accustomed to the consideration of such cases, and they knew nothing of the principles and rules of the Ecclesiastical Courts by which all proceedings as to separation under this Act were directed to be governed. In short, he thought that their Lordships must feel that an introduction of a jurisdiction of this nature was most unsatisfactory and objectionable. Their Lordships, however, would not be surprised at it when they considered that this clause was not the result of care and deliberation, but was introduced hastily to meet an abstract Resolution of the House of Commons, that some local jurisdiction should be given. He doubted whether local jurisdiction could be safely allowed—it might be; but that was matter for consideration hereafter; and he did think that a tribunal of this nature ought not to be introduced except on good and sufficient grounds, and that no adequate reason was to be found in a mere abstract vote of the House of Commons. To adopt such a provision as this in regard to the Court of Quarter Sessions was, he believed, in the highest degree inexpedient and inopportune. If local jurisdiction was to be established, he thought that the appointment of a second Judge Ordinary to go circuit and try causes locally would have been preferable to this Amendment of the Commons. Passing by some minor alterations in the Bill, with respect to which he would not offer any argument to their Lordships, the next alteration to which he should direct their Lordships' attention was a very important one, being the introduction of four new causes for which a wife might sue for a divorce; and in this respect he thought that the Amendments introduced by the Commons were essentially erroneous. The first new ground was adultery committed by the husband in the conjugal residence. It appeared to him that that proposition was open to the gravest objection. It was intended, no doubt, to meet the case of a man bringing a mistress into the house and allowing her to sit at meals with his wife and to mingle in their general society. But as it had been pointed out when the Bill was in that House, such a case would in most instances come within the category of adultery coupled with such cruelty as would entitle the wife to a divorce; but, if it did not, he did not think that it should be made the separate ground for a divorce, because it might enable the wife, when so disposed, by putting temptation in the way of the husband, to effect the object which she had in view. The next ground was adultery coupled with rape; but he thought that rape was an offence against the woman ravished, by which, as committed generally under the impulse of sudden passion, the wife was far less insulted and injured than by habitual adultery with a mistress or other women. He objected, therefore, to the introduction of that plea for divorce. The other two picas he need not characterize with more particularity than to say that they contemplated offences which were of very rare occurrence, and that the introduction of them into an Act of Parliament which would come into the hands of females and all classes of the community was objectionable. There was an Amendment to Clause 26, enabling the court to order the husband's paramour to be brought before it as a respondent on the wife's petition for dissolution of marriage—of the effect of this he would not pretend to judge, but would leave it to those whose judicial functions enabled them more clearly to form an estimate of its advantage or disadvantage. The next Amendment, however, was one of very great importance. In introducing it to their Lordships, he would remind them how forcibly the action for criminal conversation had been denounced in this House and elsewhere, and how eloquently its evils had been descanted upon; yet, the Amendment contained a provision, giving "damages"—mark the word—to the husband, in the case of the adultery of the wife. One of the main objections to the action for criminal conversation was that, by awarding damages, it estimated the wife's loss by a money payment. The new clause provided, that the claim of every such petitioner should be heard and tried on the same principles, in the same manner, and subject to the same rules and regulations as actions for criminal conversation were now tried and decided on in the courts of common law; and unquestionably established a similar proceeding to the action for criminal conversation. He knew that it might be said, in answer to this objection, that the court had power to direct in what manner the damages recovered should be applied, and that it might direct them to go to the maintenance of the wife, or towards making a provision for the children. Even so, the money did, in point of fact, go to the husband; for if it went to the wife or children, it spared him the necessity of making them such an allowance as he might otherwise be obliged to do. At all events, where there were no children, or where provision for the wife was unnecessary, the argument could not hold good, and the damages—recovered by an action which was to be carried on precisely in the same manner as an action for criminal conversation—must go to the husband. This power given to the court to direct the manner in which the damages should be applied therefore in no way affected the question, either as regarded the objectionable character of the action of crim. con., or the equally objectionable principle of giving damages for the loss of a wife's society. If there were any valid objections to the wording of the provision of the Bill as it went down to the Commons imposing a fine on the adulterer, he thought that it might easily have been amended without the revival of the action for criminal conversation. By the Bill as it left this House the appeal to the House of Lords against the decision of the court was limited to questions of law only. This restriction has been struck out by the Commons, and an appeal is allowed against the decision itself. No one can deny the extreme importance of this alteration, or that it requires the most mature consideration. The next important Amendment was, that having relation to those clergymen who might have conscientious scruples with regard to the marriage of persons who had been divorced. To this Amendment he did not in any way object—indeed, had it gone further, it would have had his concurrence. But to the rider to that Amendment he had very grave objections, by which clergymen who conscientiously objected to marry the divorced parties were required to surrender their churches for the performance of the ceremony by another clergyman. It was said, that persons in this position who desired to obtain a religious sanction to their union would be subjected to inconvenience if they were not allowed to be remarried in the parish where they, or one of them, resided. But such persons might go before a registrar, and then might proceed to any parish in the kingdom where they knew the clergyman was willing to perform the ceremony, and there be married according to the forms of the Church. Instead of this, however, the clause allowed divorced persons, contrary to the will of an incumbent, to intrude themselves into his church provided with a clergyman who entertained no objection to unite them. None but a disreputable clergyman would be found to undertake the office. No one with the feelings of a Christian minister or a gentleman would be party to such intrusion. For such a provision there was not the slightest ground; all precedent was against it; it introduced a principle, the consequences of which could not be foreseen; and he trusted, therefore, that their Lordships would withhold their assent from this clause. He had now gone through the principal provisions to which he entertained objections, and he thought that, without adding one word more, he had said enough to convince the House that these Amendments were of too grave a character to be proceeded with at that period of the Session, and that they ought to be postponed on account of the limited time allowed to their Lordships for consideration. It was, too, not their Lordships only, but the public, who required further time. Extraordinary as it might appear, this subject had never been seriously considered by the people of this country until within the last few months. The number of petitions which had been presented against the Bill during the last few weeks proved that the country had not been led to consider the probable consequences of this Bill until it seemed likely to pass through the other House of Parliament—a period so recent that no one could contend that sufficient time had transpired to allow the due consideration of so important a question. As a proof of this, he would point out that, after the measure was sent down from this House, a petition of a most important character was presented, signed by several thousand clergymen, representing almost the whole of their body; and it was impossible not to conclude that these reverend persons, though they might be thought to be particularly interested in the subject, had not become fully aware of its probable consequences till a late period in the progress of the Bill. This fact afforded a pretty good instance of the small regard which people in general had paid to the question, and the necessity of further consideration. When they looked at the increasing number of petitions presented to the House of Commons, up to the last moment, against the Bill, it was evident that people were only just awakening to its probable effects, and he thought, therefore, that precipitately to hurry forward a measure which affected every household—a measure for which there was no immediate necessity, and which was not called for on any urgent ground—was not doing justice either to the country or to Parliament. And he would also venture to instance himself as showing the effect which due consideration of this question produced. When he was appointed a Member of the Commission, he was one of those who thought that facilities for divorce might be safely extended, but the consideration which he felt it his duty to give to the subject before he could report upon it had shown him his mistake. And he might point also to a distinguished Member of the other House—a man not likely to be thoughtless in matters appertaining to religion—in whose views a further consideration of this subject had made considerable alterations. Under such circumstances he thought that for the country generally further time should be given. The last ground of objection he proposed to urge against the measure was its extreme imperfection. One of the great arguments in favour of it was the expensive and anomalous nature of the proceedings now necessary before Parliament. But no provision had been made to meet the case of divorces in India, and in such cases exceptional Bills would still have to be passed. Then, again, the Bill did not apply to Ireland. The Probates Bill, a sister measure, upon which this Divorce Bill was in some degree dependent, was extended to Ireland. Why was not the same course pursued with regard to this Bill? Where was the difficulty in the way? Certainly none arose out of the machinery of the Bill. It was solely on account of the late period of the Session, and an apprehension of increased opposition in the Commons from some of the Irish Members, that the provisions of the Divorce Bill were confined to England alone; that was to say, the measure, for want of due time for consideration, would be an imperfect one; and in the next Session of Parliament they would have to deliberate again on the subject, owing to this hurried, immature piece of legislation. After all, the greatest question of all involved in the Amendments was the extension of the grounds of divorce. Their Lordships had made some extension and the Commons had made a very material one, and the Bill had been essentially altered. There was, in fact, a considerable difference in the conclusions come to by the two Houses, and the question was, whether this difference should be settled as the result of deliberate judgment, or merely to suit the wishes and convenience of Government. He hoped, however, that on a question of this nature, which so deeply concerned the welfare of England, their Lordships would not proceed with unbecoming haste merely to enable the Government to take credit for having passed a Divorce Bill, but would give it that earnest and grave attention which it demanded. Believing that it could not this Session receive adequate consideration, he moved that the Commons' Amendments be taken into consideration that day six months.

The noble Lord concluded by moving that the Commons' Amendments be taken into consideration that day six months.

Moved, to leave out ("now") and insert ("this day six months.")

THE LORD CHANCELLOR

said, the noble Lord in support of his Motion had addressed to their Lordships arguments founded on a variety of considerations; but with all respect to the Noble Lord, he begged leave to say that the greater portion of his arguments had no reference whatever to the question whether the Commons' Amendments should be taken into consideration then or that day six months, but to the question whether those Amendments were improvements or otherwise, or to the question whether their Lordships ought to have read the Bill a third time. The first part of the noble Lord's address consisted of observations upon a number of Amendments or alterations which had been made by the Commons, which he represented as being anything but improvements; but whether these alterations were for the better or worse would be the question to be legitimately discussed when each particular Amendment came under consideration. If his noble Friend had been able to show to their Lordships that the Amendments which had been made were totally new, something which had never been considered by the House before, that they came upon their Lordships by surprise, there might have been some foundation for his argument against their proceeding to discuss them. But in point of fact the Amendments to which his noble Friend had particularly adverted were alterations with the merits or demerits of which their Lordships had become perfectly familiar through the debates which had taken place in that House before the Bill was sent down to the Commons. Firstly, with regard to the policy or impolicy of giving some of the jurisdiction in matters of divorce to local courts, that was a question which was discussed by their Lordships, and about which great differences of opinion were expressed by their Lordships. He did not scruple to say that he thought it would be more expedient in the first instance to confine the jurisdiction in these matters to a central court; he stated so when the Bill was introduced in their Lordships' House, and he would not recede from the opinion which he entertained from the commencement of the debates upon it. At all events the subject was discussed when the Bill was before their Lordships. But the other House had decidedly expressed their opinion that at the very outset jurisdiction should be given to local courts as well as to a central court. This therefore was a matter which their Lordships were perfectly competent to deal with, because they had already maturely considered it. The next point to which his noble Friend adverted was the extension of jurisdiction in granting dissolution of marriage at the instance of the wife, which had been given by an Amendment inserted in the other House. As the Bill stood when it passed from their Lordships to the other House, divorce could be obtained by the wife in two cases, and the House of Commons had substantially only added a third cause of divorce: for with regard to the other cause which had been inserted by the Commons—namely, unnatural offences—their Lordships did not include that cause in the Bill, because they did not wish it to be defiled by any reference to those offences, and because they felt that, according to ancient practice, divorce would be granted. With all deference to his noble Friend, he thought it was most absurd to object to their Lordships proceeding to consider the Amendments on the ground that one of those Amendments provided that the commission of offences of a disgusting nature should be a cause for divorce, because it was not likely that application for a divorce on that ground would be made more than once in a century. There were indeed two or three other grounds of divorce introduced by the House of Commons, but they came under the same category as the other. The Committee of their Lordships which sat on this subject two or three years ago thought that bigamy with adultery ought to be a ground of divorce. He yielded to their view, and inserted that case in the Bill: the Commons had added to it the case of rape, and the case of a husband bringing his mistress to reside with him in the conjugal residence. Whether these Amendments were well expressed was not the matter which their Lordships had at present to discuss, but he could not believe that they were not then competent to discuss those questions. The next Amendment to which his noble Friend adverted was that relating to the clergy. That alteration might or might not be an improvement; but surely it was not to be contended that their Lordships were not then in a condition to discuss a question on which they had already had four divisions on each of which occasions they came to a particular conclusion which had not been adopted by the Commons. There was then the question as to the abolition of the action for crim. con. He was one of those who did not see his way to the abolition of that action, for he felt that there might be instances of great pecuniary loss arising from adultery, and he could not think that it was altogether safe to abolish that action without giving some substitute. Their Lordships, however, came to an opposite conclusion, and thought that action ought to be at once abolished. There was a great difference of opinion on the subject, and although the House of Commons had not actually restored the action of crim. con. they had done what was almost tantamount, with the exception of providing that the money to be recovered might be settled, if the Court thought fit, for the use of the wife, or of the children of the marriage. With respect to the Church, what the House of Commons had said was, that they yielded to the scruples of the clergy to the extent of saying that they should not be bound to marry such parties in the parish church, but that the church, which for many purposes was the church not of the clergyman but of the inhabitants, should be used for the solemnization of marriage by any other clergyman who did not object to the marriage of divorced persons. Their Lordships would have to consider, when that part of the Bill came under consideration, whether they ought to sanction the compromise thus made by the House of Commons. The other House had inserted an Amendment to the effect that on any question that might arise under this Bill an appeal might be made to their Lordships' House. That Amendment would have to be discussed, not now, but when it came in due course under their consideration. If, then, all the Amendments made by the Commons were such as their Lordships were perfectly competent to deal with at once, then the argument of his noble Friend for delay proceeded upon an entire fallacy. His noble Friend said that the Bill was imperfect, because, among other reasons, it did not extend to India. Now, it should be remembered that the law of marriage and divorce was pre-eminently a law of domicile, and it was extremely difficult to legislate in one domicile, as it were, for what applied to another. It might be that their Lordships might see their way to legislate for India; but the probability was, that on such a subject India must be allowed to legislate for itself, and if it had not now the requisite power to do so, then it would be for the Legislature to confer such a power. It was also objected that the measure did not extend to Ireland. Unquestionably Ireland ought to be considered if a Bill could be introduced; but it was found impracticable to legislate in regard to that country in the present Session, more especially as this was not a matter like that of probate, in which precisely the same laws that were adapted to one part of the kingdom were equally fitted for another. There were many peculiarities arising out of the state of the population of Ireland which would render necessary important deviations from the legislation applicable to England. That was the reason why the abolition of the action of crim. con. was confined to this country. It was next alleged that a postponement ought to take place to give further time for the consideration of this subject. What time? How long would it require to make such a question ripe for legislation? It was now nearly ten years since a Royal Commission was issued to inquire into it. The most distinguished men, irrespective of party connection, were selected to conduct the investigation. One of the most eminent of their number was Mr. Walpole, who concurred in the recommendations of his brother Commissioners; and yet that right hon. Gentleman was neither an adherent of the present Government nor in any way chargeable with being opposed to the Established Church. Vice Chancellor Wood, another of the Commissioners, who was very different in his political leanings, yet no one could doubt that he also was an ardent and stanch friend of the Church, and a man who would never consent to anything which he thought calculated to weaken or injure that sacred institution. The Commissioners having made their Report, the Government had announced more than once that a measure would be introduced to carry out their suggestions, and a Bill was accordingly brought in in 1854, and passed that House. The measure was revived in two succeeding years; and was again introduced early in the present Session, and after lengthened deliberations it had received the approbation of both branches of the Legislature. It was said, indeed, that these Amendments came up very late in the Session; but what was the meaning of that assertion? Could it be pretended that there had been any delay in introducing the Bill? It had been introduced at the earliest possible period. He had had two Bills to bring in, the one relating to probate, the other to divorce, and he had taken the first day left vacant by the discussion of the former measure to lay the latter upon their Lordships' table. A month having been occupied in considering it, it then went down to the other House, where, as soon as the state of business would permit, it was taken up and debated day after day and night after night with the most praiseworthy pertinacity, and ultimately it received a third reading, and had now come back to their Lordships for the consideration of the Amendment. Under such circumstances was it reasonable to allege as a ground for postponing the Bill for six months that the Amendments came up to their Lordships at too late a period to be duly considered? If such a doctrine were to prevail, the result would be that no important measure which had undergone a full discussion in both Houses could ever become law. He purposely refrained from entering into the merits of the different Amendments. The proper time for doing that would be when each particular Amendment was before their Lordships; and he should then be prepared to give his reasons for asking the House to agree to them. But on the question whether their Lordships would now entertain the subject at all, it was to be hoped that, seeing there was nothing new in the Amendments—nothing that had not been already, more or less, directly discussed by that House—their Lordships would reject the proposition of the noble Lord and allow those Amendments to be considered.

LORD ST. LEONARDS

said, that the question before the House was not what were the merits of particular Amendments, but whether, their hours being numbered, their Lordships had sufficient time for the due consideration of a series of as important alterations as any that were ever made in a Bill sent down to the other Chamber. He had been anxious to know whether the noble and learned Lord on the woolsack was prepared to maintain the Commons' Amendments as they stood, and it now appeared that he was so prepared. If that were really so, he should be compelled to vote for the Amendment of his noble Friend (Lord Redesdale). Nothing could induce him to take that course but his firm persuasion that the only alternative open to their Lordships was either to accept or reject the alterations which the other House had made in this Measure, and not to consider them as carefully as their importance demanded. They must recollect by whom this Bill had been passed, and how it had reached the House of Commons. It had been carried by the votes of a large number of noble Lords, whose opinions were entitled to the greatest deference. Great consideration was due to the absent. Those noble Lords were not absent from inattention to their duties, but because they had no reason to believe that such important Amendments would come up from the other House this year. The learned Lord on the woolsack had defended the Government in regard to the period when this Bill was introduced; but nobody had found fault with them either for not introducing it earlier, or for not pressing it forward in this or in the other House with greater vigour. No one had a right to complain of the protracted discussions which the measure had provoked in the Lower Chamber. But, although nobody might be to blame in this respect, that did not alter the fact that the hours of the Session were numbered, and that the time at their disposal did not permit of the examination of these most important Amendments with the attention they required. The measure in substance and effect had been wholly changed by the ordeal it had undergone elsewhere. Those alterations touched the constitution of the Court originally proposed by the Bill. To the grounds of divorce previously recognized by their Lordships on behalf of the wife other grounds, which were entirely new, had been superadded. The provision in regard to the action for crim. con. had also been extensively modified, and there had likewise been a relaxation made in the law in favour of the clergy. In all his innocence he must declare that, whatever might be the view of the learned Lord on the woolsack, the clergy clause, in his opinion, had no necessary connection with the measure. It stood entirely by itself. He had had the misfortune to differ in Committee with eight of his noble Friends in respect to the Court constituted by the Bill, having felt convinced that the Judges appointed to form this tribunal could not possibly find leisure to attend its deliberations. The Commons had added the senior Judge for the time being in each of the Courts of Queen's Bench, Common Pleas, and Exchequer. This entirely met his views, and he of course approved of the Amendment. The House of Commons, by an abstract vote, declared that they would have local Courts, the desire being, as the phrase ran, to bring divorce home to the poor man's door. This remedy ought, indeed, to be extended to the pool as well as to the rich; but he should be very sorry to see every possible facility given to the multiplication of divorce cases throughout the country. The knowledge of the indissolubility of the marriage tie of itself tended to reconcile the parties. During some of the years of a man's life he might wish for a divorce or a separation, but there were many more in which he would regret that he had ever obtained one. It was good therefore that persons should be guarded against the temporary inspirations of their own passions. Parties did not require to be excited to sever the nuptial tie for slight causes, but rather to be restrained. The other House determined to have local Courts, but where did they design to get them? It was at first proposed to give jurisdiction to the County Courts, but no one would listen to that suggestion. Then it was said that the only available local Courts were those of the Judges of Assize, Quarter Sessions, or some Queen's counsel or serjeant-at-law named in the commission. Their Lordships, even in cases of judicial separation, were most anxious to establish such a Court for the decision of these important questions that it would be impossible to doubt the justice of the conclusions to which they should arrive. He would appeal to those of their Lordships who were in the habit of attending Quarter Sessions whether it was not ludicrous to talk of a Court of Quarter Sessions for the trial of such cases. Why, one case of divorce would take up more time than the whole business of the Sessions. Let their Lordships conceive the county magistrates, with two or three cases of divorce to consider at the end of the county business! Parliament had already added greatly to the labours of Courts of Quarter Sessions, and now it was proposed to refer an entirely new class of cases to them. What did county magistrates know of the procedure in Ecclesiastical Courts upon divorce Bills? The Courts of Quarter Sessions were to be Courts of divorce under the Act, and they ought, one would think, to know something of the law and practice of those Courts. These county magistrates would not only have to decide questions of fact, but matters relating to the conduct of the parties. Everything, indeed, that was now brought into an action of crim. con. would be brought before Courts of Quarter Sessions. They would also have to consider questions of alimony, and what did they know of the practice of the Ecclesiastical Court in such cases? They must know the fortune both of the husband and wife, and the state of the family, and they would have to decide upon the maintenance, education, and custody of the children, and many other things that required the careful deliberation of a Civil Court. Imagine the poor magistrates in Quarter Sessions called upon to decide matters which they could not cope with! He felt confident that this part of the Bill would break down. With regard to the Judges of Assize the moment a question of difficulty arose, requiring time for its investigation, they would say "We cannot hear it. We have not time. It must go to arbitration." The tendency of recent legislation had too much been to give the Judges power to force parties to go to an arbitration at great cost and with much delay. The Judge would say with truth that he had to open the commission on the following day at the next assize town, and that he had not time to hear a divorce case. A week, in fact, would not be too long with all the aids and appliances of counsel practised in the law for the examination of one of these cases of divorce; but where were the counsel upon circuit, or even the Judges, who knew the law by which the proceedings in such cases ought to be guided? He remembered a joke in the old House of Commons when it was proposed to compel watchmen to sleep in the day time, in order to be prepared for watching at night, whereupon a Member, whom sleep deserted, requested that the mover would be so good as to put him in the Bill; Parliament in like manner was now asked to require parties to do that which it is impossible for them to perform. The Judges of Assize were lastly to appoint some Queen's counsel or serjeantat-law named in the Commission to try these cases. Whoever framed this part of the Bill must be content to be told that it would not work. It was impossible, indeed, for any man who was conversant with the matters which would come before these Courts to say that the Bill would work. In certain cases an appeal was given from these local Courts to the Court of divorce and marriage, so that a poor man would be dragged through a course of litigation, and would end, where he ought to begin, at the divorce and marriage Court. One of the clauses provided for the expenses to be incurred, and the effect of this clause would be that any person who acted as Recorder or the nominee of a Judge would be entitled to receive a portion of the fees for his own benefit. Thus the suitor would be compelled to pay the cost of the Judge who was to try his cause. This business could not be managed contemporaneously with the general business of the circuit: the Queen's counsel or serjeant must therefore stay behind and quit his circuit. Where would be the counsel to aid him in his labours? Indeed, where at any time would counsel on the circuit be competent to discuss these questions with a knowledge of the law and practice of the Ecclesiastical Courts. He should suggest to Her Majesty's Ministers that they should not press the clause relating to the question of local jurisdiction, inasmuch as it was a point in reference to which no division had been taken in their Lordships' House, but that they should consent to its rejection upon the perfect understanding that that course had not been taken upon the merits of the proposition, but with the view that a separate Bill should be brought in next Session for the purpose of carrying into effect the objects which the advocates of the clause were anxious to attain. The next point to which he should advert was that which related to the question of the extension of the number of the grounds upon which a woman would be enabled to obtain a divorce. The subject was one which had for a long period occupied the attention of their Lordships, and a Government measure had in 1854 been introduced into that House, in which only two grounds had been set forth as conferring upon the wife the right to demand a divorce, those two grounds being bigamy and incestuous adultery. In Committee unnatural offences were added to the list; but then it was required that the offending party should first be convicted of the bigamy or other offence, and finally the additions were struck out. The question whether the commission of n rape should be added to the list had indeed been considered when the Bill had come under the notice of this House in Select Committee; but after mature deliberation the decision had been arrived at that that offence should not be held to constitute a sufficient cause for granting a divorce at the suit of the wife. There had, however, been no mention made upon the occasion to which he referred to those disgusting offences to which his noble and learned Friend on the woolsack had alluded as happening only once in a century, and he could not help concurring in the observation which had emanated from the Commissioners who had been appointed to inquire into the subject of divorce, to the effect that there were cases against which it was not fitting that any legislative enactment should provide. The very rareness of their occurrence rendered, in his opinion, any such enactment unnecessary, while he thought it was desirable that no mention should be made of them in a Bill which would be in the hands of the purest women in England, especially when it was borne in mind that the law as it stood afforded a remedy against those by whom they might be committed. But passing from that point, he wished to call their Lordships' attention next to that provision which had been introduced into the Bill by the House of Commons, making adultery upon the part of the husband, when it took place in the conjugal residence, a ground entitling the wife to obtain a divorce. By the law of France, the fact of a man's living with a concubine in the conjugal residence constituted a ground of divorce; but when, he would ask, did such a state of things occur in this country? Very rarely, if at all, and even if it did take place it would be a case accompanied with circumstances of so cruel a nature as would justify the granting of a divorce a mensâ et thoro in our Ecclesiastical Courts, and therefore, coupled with adultery, would enable the wife, under the other provisions in the Bill, to dissolve the marriage. The clause in the Bill dealing with the subject was one which, in his opinion, would be found to be productive of great mischief. The offence against which it was intended to provide was one which must no doubt be viewed with the utmost abhorrence, but he could not help thinking that it was one in reference to which there was no necessity for legislation, while he should contend that the proposed legislation might lead to very injurious consequences, as, for instance, in the case of a wife who was anxious to get rid of her husband, and who might with that view place in his way an intriguing chambermaid, who might induce him to forget what he owed to himself and to society, and cause him to yield to temptation to which he had been designedly subjected. He did not mean to extenuate the commission of such an offence, but then he must say that it was one of a much less grave nature than many others in relation to which the Bill contained no provision whatsoever, while he might add that a Select Committee of their Lordships' House had refused to assent to any proposition making it a ground of divorce against the husband. The provision is a bad imitation of the French law, and it should be borne in mind that in France there can be no absolute divorce. And there all sorts of questions have arisen, as, for example, what if there are a town and country residence, and the offence is committed in one whilst the wife is in the other, or in an upper story whilst the wife is au premier, or in a summerhouse. A licentious husband could always evade the law, which to effect the object for which it is intended should extend to adultery with any woman usually resident in the conjugal mansion. But to pass on. He had proposed when the Bill was in Committee in their Lordships' House two clauses, one abolishing the action of crim. con., and the other providing for the infliction of a fine on the adulterer, to be assessed by a jury or by the Court, but to be deemed a crown debt, with power to pay the husband's costs out of it. After considerable debate, the abolition of the action of crim. con. was agreed to, and his noble and learned Friend on the woolsack was to Lave his own clause preferred as a substitute; for both he and the Lord Chief Justice objected to a fine being assessed by a jury, and accordingly he introduced Section 31, which authorized the Court to impose upon the adulterer a fine, and to order him to pay the costs; but in the other House, the power of the Court to impose a fine was objected to by the Attorney General. Now, the other House of Parliament had struck out the words relating to a fine, and had confined the operation of the clause to the payment of costs, while the clause abolishing the action for crim. con. was allowed to remain. But what was to be the substitute for the action for crim. con.? Why, a husband was to be allowed to petition for a divorce or a judicial separation, or in a petition limited to such objects only, and to claim damages against the adulterer, and the action was to be conducted according to the same form of procedure and under the same principles and rules as the present action for crim. Con? Now, wherein did the difference exist? He had read the clause fifty times over, and was utterly unable to see any distinction. Well, then, again it was said that a man was disgraced by receiving a money compensation for his own dishonour, but the Bill, as it at present stood, not only provided that an injured husband should receive a money compensation, but also that part of the damages awarded might be allotted by the Court for the benefit of the children or the maintenance of the wife. The Court would have the power to dispose of a fine as they might think fit. For his own part, he looked upon the clause as a most monstrous one. Many persons would rather touch a scorpion than the money which was awarded as damages in compensation of their dishonour, and that statement had been freely used against the action for crim. con.; but yet the present Bill not only provided that a man might receive money compensation, but also that a portion of the damages might be allotted for the benefit of his children. As the clause stands, the husband will no longer have the excuse that he is compelled to bring the action in order to obtain a divorce, for he may even bring an action without seeking for a separation or a divorce. Look at the collusion between a husband and wife to draw in some rich booby; the damages may be settled upon the wife, and then the husband and wife may continue to live together. Who could endure that the price of his wife's shame should be settled on his children! he (Lord St. Leonards) thought that a man would rather strangle his children than allow them to be maintained by money so acquired. He would wish to say a few words upon another most important subject. No man had a greater respect than he had for the conscientious feeling of the clergy, but at the same time he could not approve a clause in the Bill which appeared to him to contain the principle of placing the clergy above the law of the land. If the Bill were in accordance with the law of God, why should any exception be made? and, if not, then he would implore the Government to attend to the voice of the right rev. Bench. It had been enacted that parties might go before a registrar and contract a civil marriage, without having a right to any ceremony of the Church, but by the same Act permission had been given to these persons to have their marriage celebrated by the Church, and an option had been given to the clergyman to perform the ceremony or not, as he pleased. The allowance of this option was a most dangerous step. He himself should have thought that if persons had contracted a civil marriage, and desired to it the sanction of the Church, the clergy would have been most anxious to admit them within its pale, and, so far as they were authorized, to sanction the union. He very much regretted the provision in this respect which had been introduced into the Bill. How he should vote in regard to it was, however, another question. He must respect the consciences and the convictions of the persons as a concession to whom this provision had been introduced, and while he must take that opportunity of expressing his regret at its introduction, and his determination, so long as he occupied a seat in that House, to countenance no similar evasion of the law on the part of any class of Her Majesty's subjects, he was not prepared to say that he should vote against this Amendment. As the Bill stood, it first allowed clergymen to declare their own law, in direct opposition to the law of the land, and then it placed upon them a restraint which could lead to nothing but unmixed mischief. They might refuse to celebrate the marriage themselves, but they must permit any other person having a right to exercise ecclesiastical functions within the diocese to come into their churches, and perform that holy ceremony. Let their Lordships picture to themselves what would be the feelings of a clergyman who, having refused to marry a divorced person, on the following day saw a neighbour come into his church and solemnize the marriage. Under such a state of things as that what would become of the friendly feeling, of the domestic happiness which now existed among clergymen who constantly visited and constantly assisted each Other? This provision would sow the seeds of the most deadly enmity. If he supported the principal clause, it would be not because he preferred it, but because the House of Commons having pronounced in its favour, the clergy, as a body, might feel that they had a right to it; and therefore, deeply as he might feel against this privilege, and convinced as he might be that it would be injurious to the best interests of the country, he should most unwillingly vote against it. It might appear to the House that his observations ought to have been reserved until the particular Amendments were considered, but he felt that he should make himself better understood by taking a general view of the principal points, and he could promise the House that if they should enter upon the consideration of the Amendments he would not repeat the observations to which they had been so good as to give their attention.

EARL GRANVILLE

My Lords, I am very far from complaining of the course which has been pursued by the noble Lords who have gone so fully into the consideration of, and given us so much information concerning the Amendments which have come up from the House of Commons. On the contrary, I think that the noble and learned Lord and the noble Lord who proposed this Amendment have adopted a most legitimate course. At the same time it does appear to me that the intimate knowledge of these Amendments which both of them have shown, although on several points they have come to perfectly adverse opinions on their merits, a little disposes of the charge that we are asking the House to consider Amendments when it is impossible that it should be properly aware of their value. Putting aside what really is a fiction, that because officially we know nothing of what passes in another place, we are, therefore, perfectly ignorant of all that has happened in regard to this Bill, up to the present moment, I apprehend that the noble and learned Lord on the woolsack fully showed you that these are points of such a nature that, although they involve separate Amendments, any noble Lord who takes an interest in the question has had an ample opportunity of making himself master of their merits. At the same time, while I think that these two noble Lords took a most legitimate and, perhaps, useful course in going so fully into the demerits or the disadvantages of each of these Amendments, still as I apprehend that the question before the House is whether we shall consider these Amendments at once or postpone their consideration for six months—which, of course, means indefinitely—I do not feel myself obliged to follow those noble Lords point by point. I apprehend that if the Amendment is carried, there is an end of the Bill for this Session. On the other hand, if it is not carried, I presume that noble Lords opposite do not consider that that decision will dispose of the whole question. They will then bring forward each of the Amendments to which they object to be carefully considered by your Lordships. Therefore, I think it would be rather a waste of time if I were to go over a line of argument which must be repeated at a subsequent stage. There was, however, one general argument urged by the noble Lord who moved this Amendment which had no great effect upon my mind. That was as to the advantage of ventilating public questions. As a general rule I think it is impossible to ventilate questions too fully, to answer them too cautiously, or to give too much time for taking every possible opinion; but I hardly remember any Bill which has been more carefully and conscientiously discussed on both sides, and both in this House and in another place, than this measure has been. I must also say that I am not certain that there is not an advantage in settling delicate questions of this sort, involving so much, with regard to our social habits, instead of leaving them to be handled in every possible way, some of those ways being, I am quite certain, productive of disadvantage. It may be a metaphysical argument as to the motives which induce persons to commit these crimes, or it may be that an opening is given to persons to consider what scruples can possibly be excited, as have been excited, with regard to the clergy—in this respect I have no doubt most conscientiously felt, but still such as have not existed for a long time, and such as have not been raised without a certain amount of agitation. I do not think that any further advantage will be obtained by leaving this question as a bone of contention for some indefinite period of time. Therefore, if for no other reason than that, I should request your Lordships at once seriously to apply yourselves to the consideration of these Amendments, which I do not admit are such complete changes as they have been represented to be. With regard to the lateness of the Session, that we can only answer in connection with the question whether the House is in such numbers as to be able to consider this subject, and I have hardly during the Session seen the House so full on both sides as it is to-night. I must add that if it is true that we are to-night not to have the advice of some of the most important Members on the other side of the House, that arises from no dereliction of their duty, as it would do if they absented themselves from any motives of personal convenience, but from the fact that on this point they generally agree with the Government, and therefore do not think it necessary to appear in their places to-night. I therefore hope that your Lordships will negative this Motion, and at once proceed to the consideration of the Amendments which have been made in this Bill by the House of Commons.

THE EARL OF CARNARVON

contested the statement of the noble Earl, that this Bill was substantially the same as that sent down to the House of Commons. He had taken the trouble to make an analysis of the clauses as they now stood, and he found that, of seventy-three clauses, fifty-nine were either new or had undergone alteration. Five had been struck out and twenty-one had been added, by the other House. Thirty-three had been altered—nineteen materially, and fourteen verbally, or in other minor respects. It was therefore incorrect to say that this was the same Bill which their Lordships had considered already.

EARL GRANVILLE

presumed that, among the clauses changed, the noble Earl had included those which related to the title of the court.

On Question, "That 'now' stand part of the Motion?" their Lordships divided: Contents 46; Non-Contents 44: Majority2.

Resolved in the Affirmative: Commons' Amendments considered accordingly.

CONTENTS.
Cambridge, D.	Brodrick, L. (V. Midleton.)
Cranworth, L. (L. Chancellor.)
	Byron, L.
	Calthorpe, L.
Somerset, D.	Camoys, L.
Wellington, D.	Campbell, L.
	Clandeboye, L. (L. Dufferin and Clancboye.)
Lansdowne, M.
Townshend, M.	Congleton, L.
Abingdon, E.	Dacre, L.
Clarendon, E.	Dartrey, L. (L. Cremorne.)
Ducie, E.
Fortescue, E	De Mauley, L.
Granville, E.	Denman, L.
Harrington, E.	Foley, L.[Teller.
Harrowby, E.	Glenelg, L.
Munster, E.	Granard, L. (E. Granard.)
Portsmouth, E.
Shaftesbury, E.	Holland, L.
Suffolk and Berkshire, E.	Howden, L.
	Hunsdon, L. (V. Falkland.
Hardinge, V.	Overstone, L.
Hutchinson, V. ( E. Donoughmore.)	Panmure, L.
	Portman, L.
Sydney, V. [Teller.]	Rivers, L.
	Stanley of Alderley, L.
London, Bp.	Sundridge, L. (D. Argyll.)
Boyle, L. (E. Cork and Orrery.)	Wycombe, L. (E. Shelburne.)

NOT-CONTENTS.
Norfolk, D.	Lincoln, Bp.
	Oxford, Bp.
Bath, M. [Teller.]	Rochester, Bp.
Salisbury, M.	Salisbury, Bp.
Winchester, M.
Amherst, E.	Bagot, L.
Beauchamp, E.	Bayning, L.
Buckinghamshire, E.	Berners, L.
Carnarvon, E.	Boston, L.
Cottenham, E.	Clifton, L. (E. Darnley.)
Dartmouth, E.	Monteagle of Brandon, L.
De La Warr, E.
Hardwicke, E.	Petre, L.
Leven and Melville, E.	Polwarth, L.
Nelson, E. [Teller.]	Raglan, L.
Powis, E.	Rayleigh, L.
Romney, E.	Redesdale, L.
Talbot, E.	Sheffield, L. (E. Sheffield.)
Vane, E.
Verulam, E.	Southampton, L.
	Saint Leonards, L.
Dungannon.V.	Tenterden, L.
St. Vincent, V.	Truro, L.
	Walsingham, L.
Chichester, Bp.	Wynford, L.

On the clause establishing a local jurisdiction in cases of application for Restitu- tion of Conjugal Rights or Judicial Separation,

THE LORD CHANCELLOR

briefly narrated the history of the clause. It was thought, he said, by the House of Commons, and especially by Members not connected with the Government, that there ought to be local tribunals for the trial of petitions for judicial separation, and that parties residing in the country should not be compelled to apply to the general Court in London. Hence it became necessary to consider to what local courts the jurisdiction should be intrusted. He did not pretend to say that the tribunals mentioned in the clause were free from objection; but, admitting the principle of local jurisdiction, he did not think it would be possible to hit upon better local courts than the Judges of Assize and the Quarter Sessions. It had been said that the Judges of Assize were always so extremely pressed for time, that they had been in the habit of saying, "This case will occupy too much time; it must be postponed till another occasion, or decided in some other way." Now, with an experience of eleven years as a Judge of Assize, he must say that, although he had often heard that that was commonly done, he never saw it done, and he believed it had been greatly exaggerated. All difficulty could be guarded against by rules and regulations to be framed under the Act,—one of the first of which would necessarily be, that petitions should be presented a sufficient time before the holding of the assizes, that the Judges might be aware what business there would be. With respect to the Quarter Sessions, the House of Commons had thought that, as they were seeking to provide a remedy for the poor as well as for the rich, it would only be consistent to establish a tribunal which would be really accessible. There really was no ground for asserting that the Courts of Quarter Sessions would not be competent to discharge the new functions that this Bill would impose upon them. The magistrates composing those courts were men of station, acquainted with the habits and feelings of the humbler classes, and they would be quite able to deal with the cases of separation which would come before them from those classes. He did not mean to contend that the tribunals proposed were not open to objection, but the same could be said of any tribunal that could be suggested. The question now was, whether the Amendment made by the other House was so open, to objection as to induce their Lordships to refuse their assent to it. He believed that it was not, and that neither this nor any other Amendment which had been introduced in the other House had at all altered the essential character of the Bill; and as, in a great measure of this kind, there must always be something experimental, he should urge upon their Lordships to concur in the Amendment of the other House.

LORD MONTEAGLE

said, he felt such strong objections to this Amendment, made in the other House, that he could not abstain from expressing them. When the Bill was first introduced, the noble and learned Lord on the woolsack had assured their Lordships that it was not intended to alter the conditions and principle of the law of divorce, but simply to improve the tribunal which administered it. Had the Bill been confined to that object, it would have been well, but as it stood at present the Amendments, or rather the changes adopted in this and the other House, had set aside the prudent resolutions of his noble and learned Friend, and he much feared would lead Parliament into innumerable difficulties. Confining himself for the moment to the clause under consideration, he would ask their Lordships whether they thought it did provide improved tribunals for dealing with subjects of divorce. He believed that in one respect, he alluded to the Quarter Sessions clause, it not only failed to improve the existing tribunal, but by an ingenious alchemy it extracted all that was bad from the old system and added thereto all the elements of mischief which any new tribunal could possibly possess. Of the proposition to refer these matters to the Judges of Assize he would say nothing more than that, if this new jurisdiction was imposed upon those Judges it would cause great difficulty in the performance of their primary duties on circuit by overburthening them with new functions arising out of the law of marriage. But a much more fatal change was made. In selecting the Courts of Quarter Sessions, in addition to the Courts of Assize for determining these cases of separation, of management of children, of provision for wives, the House of Commons had selected tribunals which of all others were the worst fitted to determine such matters. He spoke in the presence of men who habitually took part in the proceedings of the Quarter Sessions, many of their Lordships acting as Chairmen of those Courts, and he would put it to their Lordships individually, as magistrates, whether they could truly and conscientiously declare that they believed themselves to be competent to decide on such delicate matters as those he had recapitulated? Would any Peer rise up and say that he felt competent to adjudicate on such questions? Would the noble Marquess opposite, who was so familiar with the business of the Court of Quarter Sessions (the Marquess of Salisbury) say that he felt competent? Would you, my Lord, or you? Ho made this "appeal nominal" as the French called it, with confidence, because he well knew if every Peer was to vote in accordance with his personal convictions how the decision must be? And if each Peer whom he addressed declared his in competency to discharge those duties, how could they and the class of county magistrates be fitted to undertake collectively that which they individually rejected. The noble and learned Lord had recommended the Court of Quarter Sessions upon the ground of its cheapness; but it must be remembered that cheapness was relative and depended upon the value of the article purchased, not on its money price. What is worthless must always be dear at any price. Upon a former occasion the noble and learned Lord had told them that it would be a fallacy to suppose that a Court presided over by the Lord Chancellor and composed of great Judges must therefore necessarily be an expensive tribunal, and he assured the House that he did not know a tribunal in which justice could be more cheaply administered than in the new Court to be established under the Bill before them. If this new tribunal of the Quarter Sessions was to be given to the poor simply because it was cheap it would be a dangerous gift, unless care was taken to make it also a good and useful tribunal. Were the gentlemen of England likely to accept with satisfaction duties which they had no professional knowledge or guidance to enable them to discharge aright? And the House must bear in mind that at Quarter Sessions they would have no experienced bar to guide them, for the questions of law raised under this Bill would be those of which the barristers employed at Quarter Sessions knew nothing. His noble and learned Friend said a Bill of this kind should be considered as experimental; but, suppose the experiment failed, in what condition would the Government be placed if they had to come to Parliament and ask them to withdraw from the magistrates sitting in Quarter Sessions the authority which they had failed to exercise satisfactorily? This would be a disgrace to the magistrates of England, if it were not a disgrace to the Legislature, for so ill-advised an enactment. He therefore earnestly entreated their Lordships to relieve the Quarter Sessions from the duties which the Bill proposed to impose upon them, and in order to bring the question to an issue he would move and take the sense of the House on a Motion to omit the following words from the clause: "Or to the Court of Quarter Sessions of the peace held for the county or borough in which the husband and wife are or were last resident."

THE EARL OF HARDWICKE

said, he should support the Amendment. The Courts of Quarter Sessions performed their duties with satisfaction; but he thought it extremely unlikely that the magistrates at quarter sessions would be able to give satisfaction to the people of England in the exercise of judicial authority in such cases as would arise under this Bill. Indeed, he regarded it as perfectly ridiculous to hand over to the quarter sessions, involving the nicest and most delicate points that could be raised, and also points of law of which the magistrates had no knowledge whatever. Even the barristers who attended those courts were wholly incompetent to deal with these questions. His noble and learned Friend on the woolsack said these courts were only for the poor, and that there were other tribunals for the rich; but he (the Earl of Hardwicke) did not think that was a statement that would be very satisfactory to the people of England. The Courts selected for the poor were plainly incompetent for the discharge of the duties they were to be saddled with, while those selected for the rich were to be presided over by the highest judicial authorities in the country. In times gone by, when the Whigs were out of office, they pandered to the prejudices of the people—as the Whigs always did when out of office—by declaring that the gentlemen of England sitting in quarter sessions were unfit for the duties they had to perform, and that they ought to be set aside to make room for a paid magistracy. If they passed this Bill as it now stood, they would impose duties upon English gentlemen which they would not be able to discharge, and then they would, perhaps, turn round upon them, accuse them of incompetency, and cry up their favourite maxim of a paid magistracy. The gentlemen of England would not thank Parliament for asking them to attend to duties they were so ill qualified to perform, and thus exposing them to be held up to the world for incompetency. He hoped, therefore, that the House would force upon them no such duties.

LORD WYNFORD

said, he would oppose the Amendment. The Bill, as it left their Lordships' House, gave exclusive jurisdiction to a particular Court; but, since the Bill had gone to the House of Commons, several jurisdictions had been added to it. He contended that the Court of Quarter Sessions was totally unfitted for trying cases of divorce, and he appealed to noble Lords who might have lately returned from presiding over those Courts, whether their own experience and observation did not lead them to the same conclusion. Here, then, they would have Judges of Assize, Recorders of boroughs, Chairmen of Quarter Sessions, giving decisions which would all help to be law by and by. How was it proposed to bring these decisions under one uniform rule? Why the thing was utterly impossible. The decisions would be given in such direct contradiction to one another, as human ingenuity would never be able to reconcile.

THE EARL OF POWIS

concurred in the opinion that it would be most inexpedient to confer this power upon Courts of Quarter Sessions. All who were in the habit of sitting in those Courts, would, he thought, have good ground for complaining if, in addition to the management of the prisons and the county affairs, they had duties of this nature thrust upon them. But, besides that, how could it be expected of them, as a body of unprofessional persons, that they should give decisions which would be satisfactory, without the assistance of members of the bar who had practised in these cases, and possessed a knowledge of this particular branch of the law? In the smaller counties, especially the Welsh, where there was not sufficient business to attract barristers, and the practice was entirely confined to solicitors, the result would be, that the argument of this class of cases would fall exclusively into the hands of attorneys, and their Lordships might easily guess that most of it would be of a description that would not be always in the hands of the most reputable. Then they would have attorneys who lived in little villages raking up cases of this sort; setting the husband against the wife, and using the information they might acquire in confidence to dress up actions for the Quarter Sessions—a local tribunal, with a local Judge and a local jury. What could be worse than to have these cases discussed four times a year before a tribunal which would have the greatest difficulty, from a want of legal knowledge, in excluding improper evidence and arriving at just conclusions, and which would, at the same time, be placed in the position of having the cases argued before them by those who would, very often, be the lowest members of the profession? He did trust, therefore, that their Lordships would not consent to extend this jurisdiction to the Courts of Quarter Sessions.

EARL FORTESCUE

readily agreed that jurisdiction in cases of divorce might be given with propriety to the Judges of Assize, in whose learning and ability the public reposed the greatest confidence; but be must say, although he regretted to differ from the majority of the House of Commons, that he could not shut his eyes to the gravity of the objections which had been urged against the still further extension of the jurisdiction to the Court of Quarter Sessions. That Court was not, in his opinion, at all adapted to conduct such inquiries, and he would most earnestly press upon the Government that they should amend the clause as proposed by his noble Friend.

THE DUKE OF SOMERSET

agreed that it would be most unwise to extend the jurisdiction to Courts of Quarter Sessions, and expressed a hope that the Government would act upon the advice which had been given them, and omit the words relating to those Courts from the clause.

EARL GRANVILLE

said, that, though he thought the case had been rather overstated, yet the Government were not disposed to resist the strong expression of opinion on both sides of the House against this provision, and he would, therefore, consent to the omission of the words relating to the Quarter Sessions.

Amendment agreed to: words struck out.

LORD ST. LEONARDS

said, he had no objection to leave the clause applicable to the Judges of Assize; but he could not consent to allow the same jurisdiction to be exercised by her Majesty's Counsel and Serjeants-at-law who were named with the Judges in the Commission. He proposed, therefore, to strike out the words relating to Queen's Counsel and Serjeants-at-law.

THE LORD CHANCELLOR

said, that the commission of assize went to two of the Judges named for the purpose, and with them were associated all or most of the Queen's Counsel and Serjeants that went on the particular circuit, and those learned persons had, he believed, exactly the same jurisdiction as was given to the Judges; and the only meaning of the proviso to the clause was that in reference to those new duties the Commission should give exactly the same jurisdiction as in ordinary cases. The usual course was to delegate to those persons who had concurrent jurisdiction with the Judges the duty of trying the minor offences and inferior causes. It was possible, certainly, that the Judge might think proper thus to delegate the power of trying a divorce case, but he thought that was extremely unlikely. Undoubtedly he had the power to do so, just, for instance, as any Judge at Liverpool, having a case of the most horrible murder ever known, might delegate it to a Queen's Serjeant or a Queen's Counsel; yet he never did so, and always referred to them the smaller matters. The only reason for the proviso was, that there should be the same security in cases of emergency for having these functionaries to exercise jurisdiction as there was in ordinary cases, in respect of which the Commission would remain unaltered.

LORD ST. LEONARDS

said, what he apprehended was that the Judges would not have time to try these cases themselves, but would pass on their circuit, and leave Queen's Counsel or Queen's Serjeants behind to try them; and he drew attention to the wording of the clause (P) added by the Commons, which allowed application for restitution of conjugal rights, or for judicial separation, but omitted to provide for a decree for restitution of conjugal rights in the subsequent part of the clause.

Amendment negatived; Commons Amendment agreed to.

Upon Clause B, added by the Commons, Lord ST. LEONARDS observed, that this clause was a substitution for two clauses introduced on his Motion, by their Lordships, to provide a security for a wife's earnings when she was deserted by her husband. The main objection to his clauses was, that magistrates would not know what amounted to desertion, but after all that word was retained. He did not think the clause an improvement, and he suggested that the wife should be empowered to recover the specific property as well as double value, and the clause was amended accordingly.

Upon Section 24, which provided for the registration, of the fact of separation ceasing, but was struck out in the other House, Lord ST. LEONARDS said, he found that when the clause was objected to, the learned person who had the care of the Bill exclaimed that it was introduced into this House by Lord ST. LEONARDS; but he begged to disclaim the paternity of it. He had never seen it; it had been introduced by his noble and learned Friend on the woolsack on the Report, and to him the merit of it must be assigned.

Clause 25.

LORD ST. LEONARDS moved to disagree to Amendment ("or of adultery committed in the conjugal residence").

THE DUKE OF ARGYLL

recommended their Lordships to adopt the Amendments made in this clause by the Lower House. Not inserting words was quite a different thing from striking them out when once they had been introduced. There was a general feeling in Parliament and in the country against the Scotch law of divorce, which put the woman on the same equality as the man in respect to matters of divorce. He should own that his own predilection was in favour of the Scotch Jaw, though he fully admitted that the social effects of adultery were different in the cases of the respective sexes. It had been found that in Scotland a woman never looked for a divorce on the ground of adultery unless her feelings had been outraged by conduct aggravating the adultery. However, the majority of the House of Commons was of opinion that the case of the man bringing his concubine into his family residence was so gross a one, that justice to the wife required she should have the means of procuring a divorce after so great an indignity having been offered to her, and he should vote for the Amendment.

LORD MONTEAGLE

said, he should support the Motion. Incases like these it ought to be the object of the Legislature to guard against collusion, which was, in point of fact, a fraud upon the law. But could they imagine anything more likely to lead to collusion than the proposal of the House of Commons? The proposer of the words under consideration had entirely misunderstood the enactment of the French law which he had attempted to copy. The French law gave a woman a right of divorce in case her husband obtruded his mistress into the house; but as the clause stood a man might bring his concubine home, and the wife would have no remedy, unless she could prove an act of adultery actually committed under her roof. What could be more easy than for the adulterous couple to live together to all intents and purposes in the conjugal residence, and yet evade the law by actually committing elsewhere the offence which would give the wife a remedy? In fact the clause, as it stood, was absolute nonsense. This might not be very Parliamentary language, and might not seem very respectful to those—he did not know who they were—who framed the clause, but he defied any man to construe the words consistently with reason or common sense. It was a dangerous thing to attempt to deal with particular cases, for all those cases which were not enumerated were left untouched. The State Trials recorded the case of a Member of that House who, a long time back, became a party to the commission of a rape upon his own wife. A more horrible and disgusting crime could not be imagined; yet even an offence like that would not entitle the wife to a divorce as this clause was now worded. He conceived that the words which the noble and learned Lord proposed to omit were wholly unnecessary, and he would therefore support the Amendment.

LORD REDESDALE

thought such special provisions as that to which his noble and learned Friend objected only served to point out the modes in which grounds for divorces might be laid, and he would vote for the Amendment. He wished also to point out that a divorce might be granted on an allegation of rape, and a jury might afterwards decide that the offence had not been committed.

THE EARL OF HARROWBY

admitted that it was desirable, if possible, to cover all the cases of divorce by general words, without enumerating particular acts; but, until general words which would apply to all cases could be devised, he thought the clause ought to be retained in its present form.

LORD PORTMAN

suggested that the word "convicted" should be substituted for "guilty," so that the clause would run "if the husband has been convicted of incestuous adultery," &c.

THE BISHOP OF OXFORD

thought it would be advisable to leave out the particular words used in the clause, and to substitute for them such general words as the following:—"Adultery accompanied in the judgment of the Court with disgraceful aggravation."

On Question, whether to agree? their Lordships divided.

Contents 27; Not-contents 44: Majority 17.

Amendment disagreed to.

LORD ST. LEONARDS

then moved to disagree to Amendment ("or of Rape, &c.")

THE LORD CHANCELLOR

said, that those words were undoubtedly words which were revolting to utter, but at the same time he thought the Bill more perfect with them than without them. When the Bill was discussed in their Lordships' House it was said that these cases were so extremely rare that when they occurred the injured wife might be left to her remedy by applying for a special Act of Parliament. Nevertheless, he thought that when the other House inserted the words to remove what it deemed a blot in the Bill their Lordships would not do right to reject the Commons' Amendment. With regard to the word "guilty," that would mean convicted. ["No, no!] If not, why did their Lordships send the Bill down to the other House with the expression "guilty" of bigamy in it? The same meaning attached to the word "guilty," whether in the expression "guilty" of rape or in that of "guilty" of bigamy.

LORD REDESDALE

said, the question of the person's guilt would have to be inquired into and decided upon by the Court.

LORD DENMAN

conceived that the word "convicted" ought to be inserted.

On Question, whether to agree?

Contents 45; Not-Contents 29: Majority 16.

Commons Amendment agreed to.

CONTENTS.
Cranworth, L. (L. Chancellor.)	London, Bp.
	Oxford, Bp.
	Salisbury, Bp.
Somerset, D.
Wellington, D.	Boyle, L. (E. Cork and Orrery.)
Lansdowne, M.	Camoys, L.
Townshend, M.	Clandeboye, L. (L. Dufferin and Claneboye.)
Amherst, E.	Dacre, L.
Clarendon, E.	Dartrey, L. (L. Cremorne.)
Ducie, E.
Fortescue, E.	De Mauley, L.
Granville, E.	Denman, L.
Harrowby, E.	Foley, L. [Teller.]
Portsmouth, E.	Glenelg, L.
Powis, E.	Howden, L.
Romney, E.	Hunsdon, L. (V. Falkland.)
Shaftesbury, E.
Suffolk and Berkshire, E.	Overstone, L.
	Panmure, L.
Verulam, E.	portman, L.
	Rivers, L.
Dungannon, V.	Stanley of Alderley, L.
Hutchinson, V. (E. Donoughmore.)	Strafford. L. (V. Enfield.)
	Sundridge, L. (D. Argyll.)
Sydney, V. [Teller.]
	Truro, L.
Chichester, Bp.	Wycombe, L. (E. Shelburne.)
Lincoln, Bp.

NOT-CONTENTS.
Norfolk, D.	Hardwicke, E.
Bath, M. [Teller.]	Harrington, E.
Salisbury, M.	Nelson, E. [Teller.]
	Talbot, E.
Buckinghamshire, E.
Carnarvon, E.	Rochester, Bp.
Dartmouth, E.	Bagot, L.
De La Warr, E.	Bayning, L.

Berners, L.	Petre, L.
Boston, L.	Rayleigh, L.
Brodrick, L. (V. Midleton.)	Redesdale, L.
	Southampton, L.
Calthorpe, L.	Saint Leonards, L.
Churchill, L.	Tenterden, L.
Congleton, L.	Walsingham, L.
Monteagle of Brandon, L.	Wynford, L.

LORD WYNFORD

then called attention to the proviso defining what was to be considered bigamy, and complained that it was an inadequate definition.

THE EARL OF DONOUGHMORE

added that from the wording of the proviso it was impossible to draw a distinction between bigamy and adultery.

THE LORD CHANCELLOR

explained that if a man already married went through the marriage ceremony with another woman abroad, his offence would only be that of adultery. He could not be indicted for bigamy, inasmuch as he could not be said to have acted against the Queen's peace.

Proviso agreed to.

Clause 27 agreed to.

Clause 28.

THE BISHOP OF OXFORD

stated that, when the Bill went down to the other House it provided that no man should be entitled to a divorce who was himself guilty of adultery. The Commons had struck out that provision, and he now moved that it be restored to its original form.

Moved, to reinstate ("guilty of adultery, or has been") struck out by the Commons.

Earl GRANVILLE, the LORD CHANCELLOR, and LORD ST. LEONARDS said a few words in explanation.

On Question, Whether to agree to Commons' Amendment?

Their Lordships divided:—Contents 39; Non-Contents 35: Majority 4.

Commons' Amendment agreed to.

CONTENTS.
Cranworth, L. (L. Chancellor.)	Sydney, V. [Teller.]
	London, Bp.
Somerset, D.
Wellington, D.	Boyle, L. (E. Cork and Orrery.)
Lansdowne, M.	Camoys, L.
Townshend, M.	Churchill, L.
	Clandeboye, L. (L. Dufferin and Claneboye.)
Clarendon, E.
Ducie, E.	Congleton, L.
Fortescue, E.	Dacre, L.
Granville, E.	Dartrey, L. (L. Cremorne.)
Harrington, E.
Harrowby, E.	De Mauley, L.
Portsmouth, E.	Denman, L.
Shaftesbury, E.	Folcy, L. [Teller.]
Suffolk and Berkshire, E.	Granard, L. (E. Granard.)

Howden, L.	Stanley of Alderley, L.
Hunsdon, L. (V. Falkland.)	Strafford, L.(V. Enfield.)
	Sundridge, L. (D. Argyll.)
Overstone, L.
Panmure, L.	Truro, L.
Portman, L.	Wycombe, L. (E. Shelburne.)
Rivers, L.
Sheffield, L. (E. Sheffield.)

NOT-CONTENTS.
Norfolk, D.	Chichester, Bp.
Bath, M. [Teller.]	Lincoln, Bp.
Salisbury, M.	Oxford, Bp.
Winchester, M.	Rochester, Bp.
	Salisbury, Bp.
Amherst, E.
Buckinghamshire, E.	Bagot, L.
Carnarvon, E.	Bayning, L.
Cottenham, E.	Berners, L.
Dartmouth, E.	Boston, L.
De La Warr, E.	Petre, L.
Hardwicke, E.	Polwarth, L.
Nelson, E. [Teller.]	Rayleigh, L.
Powis, E.	Redesdale, L.
Romney, E.	Southampton, L.
Talbot, E.	Saint Leonards, L.
Verulam, E.	Tenterden, L.
	Walsingham, L.
Dungannon, V.	Wynford, L.

Upon Clause (F) added by the Commons, giving to the husband power to claim damages from the adulterer.

LORD ST. LEONARDS moved the rejection of the clause altogether, its effect being, his Lordship said, practically to maintain the action of crim. con.

THE LORD CHANCELLOR

said, that no doubt the Commons had decided adversely to the views adopted by their Lordships respecting the propriety of maintaining an action for damages. There was, however, a division of opinion even in this House on the subject, many high authorities insisting that the action ought to be retained. He confessed that he had been very much struck with the argument of his noble and learned Friend (Lord Wensleydale), that there were cases in which great pecuniary loss resulted to the husband from the seduction of his wife; the very fact that large damages were now given in these cases afforded a strong ground for concluding that the country thought this sort of action not an improper proceeding. Considering the difference of opinion existing on the subject, he had no hesitation in moving their Lordships to agree to this clause.

LORD ST. LEONARDS

regarded the clause as virtually inconsistent with the subsequent one, which abolished the old action for crim. con.

THE DUKE OF ARGYLL

observed, that their Lordships had adopted the principle of inflicting a fine upon the adulterer, making this some substitute for the action at present maintainable. The substitute, however, provided by the House of Commons in this clause was very much superior. There existed a great distinction between the old action for crim. con. and that now proposed. The old action was compulsory; it formed the only door to a divorce a vinculo. But in future, except in cases of great pecuniary loss, the action for damages on the part of the husband would probably be considered disreputable, and would never be resorted to.

VISCOUNT DUNGANNON

opposed the clause.

EARL GRANVILLE

pointed out that, while, under the old system, the only means of getting a divorce was, by applying for a certain sum of money to be adjudged to a husband as compensation for the loss he had sustained, the action at present provided was not compulsory, and the sum to be assessed was paid to the Court, the Court distributing it as it thought fit. That cases occurred in which an action for damages might properly be brought, could hardly be disputed. He might cite a case, not altogether an imaginary one, in which a professional man, in the reciept of £400 a year, married a wife with an income of £1,200 a year. There was a, family from this marriage, of six daughters, and then the wife left her husband, taking her fortune with her, and he had to maintain the family upon his £400 a year. In such a case, he thought nothing could be more reasonable and more just than that the husband should be enabled to apply for damages; the Court, in its discretion, adjudging him a certain amount, not by way of compensation, but to be applied for the support of his children.

THE BISHOP OF LINCOLN

was opposed to the Commons' Amendment, which restored the objectionable action for crim. con., although power was given to the wife to appear in Court, and to defend her character if she could. He should not, however, object to the clause standing, upon the condition that the 31st clause should stand as it was originally framed.

LORD DENMAN

was understood to support the provision empowering the wife to appear and defend herself in Court.

THE EARL OF DONOUGHMORE

said, actions of crim. con. were frequently brought for the purpose of extorting money. They were disgraceful to the law of England, and he hoped that, as their Lordships had by a large majority agreed I that the action of crim. con. ought to be abolished, they would not consent to this Amendment of the Commons, which, would practically revive it.

LORD REDESDALE

thought there was nothing derogatory in a husband bringing an action for crim. con. when it was the law that no divorce should be allowed to him unless he had first succeeded in an action of crim. con. against the adulterer; but now that the Legislature was about to enact that a divorce might be obtained without the preliminary step of an action of crim. con. there could be no reason for bringing such actions, except that of a desire to make a pecuniary gain by a wife's guilt, and the Commons' Amendment would hold out an encouragement to seek damages for adultery.

THE BISHOP OF OXFORD

denied that this Amendment resembled one of the Amendments which he had asked their Lordships to adopt—(a clause imposing a fine). The noble Duke who said that it was, could hardly have read it. He quite agreed with the noble Duke that there would be an advantage in enabling the Court to prevent serious pecuniary damage to the man by the adultery of his wife; but this Amendment was a very different affair from that, because it enacted that the action to be brought should be tried on the same principles as those on which the action of crim. con. was tried. And what were those principles? The taking of evidence as to that which closely touched the moral and family relation between the parties. If you could show that they had lived together and that the husband was blameless, then you gave damages in order to satisfy the husband for the loss of his wife's company. But nothing was said as to the husband being satisfied for a certain amount of property which the wife might carry off from him. As the noble Lord who had just spoken had truly said, there could now be no reason for a husband asking for compensation for the adultery of his wife as a preliminary to his obtaining a divorce. He wished they had that night the eloquence of that noble and learned Lord who, when the Bill was previously debated by their Lordships, denounced from his place upon the opposite side of the House the action of crim. con. as a disgrace to the law of England. The Lord Chancellor himself, he believed, on that occasion said that every dying thing of notoriety should have its funeral oration, and he trusted that that was the funeral oration of that great disgrace of England's law—the action of crim. con.; and yet their Lordships were now, without the shadow of an excuse, about to revive that shameful action under circumstances of new aggravation.

THE EARL OF HARROWBY

called the right rev. Prelate's attention to the latter part of the clause, which provided that the Court should have power to direct in what manner the damages should be applied, and to order that the whole or any part thereof should be settled for the benefit of the children, or as a provision for the maintenance of the wife. This provision contained a security against abuse which did not exist under the present law. A man wishing to make merchandise of his wife's honour could now bring his action of crim. con. and pocket the whole of the damages; whereas, under this clause, the Court could settle the money upon his children. It must, however, be admitted that had their Lordships been dealing with this question originally, the clause might have been drawn up in a less objectional form.

On Question, whether to agree? their Lordships divided:—

Contents, Present	…	…	32
Proxies	…	…	45
			—77
Not Contents, present	…	…	40
Proxies	…	…	27
			—67
Majority	…	…	10

Amendment agreed to.

CONTENTS.
(PRESENT.)
Cranworth, L. (L. Chancellor.)	Congleton, L.
	Dacre, L.
Wellington, D.	Dartrey, L. (L. Cremorne.)
Lansdowne, M.	Denman, L.
Townshend, M.	Foley, [Teller.]
	Glenelg, L.
Clarendon, E.	Howden, L.
Fortescue, E.	Hunsdon, (V. Falkland.)
Granville, E.
Harrowby, E.	Overstone, L.
Suffolk and Berkshire, E.	Panmure, L.
	Portman, L.
Sydney, V. [Teller.]	Rivers, L.
Chichester, Bp.	Stanley of Alderley, L.
London, Bp.	Stafford, L. (V. Enfield.)
Rocheser, Bp.	Sundridge, L. (D. Argyll.)
Camoys, L.	Truro, L.
Clandeboye, L. (L. Dufferin and Claneboye).	Wycombe, L. (E. Shelburn.)

(PROXIES).
Devonshire, D.	Ashburton, L.
Grafton, D.	Aveland, L.
Sutherland, D.	Broughton, L.
	De Tabley, L.
Anglesey, M.	Dorchester, L.
Bristol, M.	Fitzgibbon, L. (E. Clare.)
Airlie, E.	Godolphin, L.
Burlington, E.	Hatherton, L.
Camperdown, E.	Kilmarnock, L. (E. Erroll.)
Carlisle, E.
Cowper, E.	Leigh, L.
Craven, E.	Meldrum, L. (M. Huntly.)
Gainsborough, E.	Methuen, L.
Leicester, E.	Monson, L.
Minto, E.	Poltimore, L.
Morley, E.	Ponsonby, L. (E. Bessborough.)
Radnor, E.
Spencer, E.	Rossie, L. (L. Kinnaird.)
Strafford, E.
Zetland, E.	Sudeley, L.
	Suffield, L.
Eversley, V.	Talbot do Malahide, L.
Leinster, V. (D. Leinster.	Vernon, L.
	Ward, L.
Lichfield, Bp.	Worlingham, L. (E. Gosford.)
Worcester, Bp.

NOT-CONTENTS.
(PRESENT).
Norfolk, D.	Oxford, Bp.
	Salisbury, Bp.
Bath, M. (Teller)
Salisbury, M.	Bagot, L.
Winchester, M.	Bayning, L.
	Berners, L.
Amherst, E.	Boston, L.
Buckinghamshire, E.	Brodrick, L. (V. Midleton.)
Carnarvon, E.
Cottenham, E.	Calthorpe, L.
Dartmouth, E.	Churchill, L.
De La Warr, E.	De Mauley, L.
Hardwicke, E.	Granard, L. (E. Granard.)
Harrington, E.
Nelson, E. [Teller.]	Petre, L.
Powis, E.	Polwarth, L.
Romney, E.	Rayleigh, L.
Talbot, E.	Redesdale, L.
Verulam, E.	Sheffield, L. (E. Sheffield.)
Dungannon. V	Saint Leonards, L.
Hutchinson, V. (E. Donoughmore.)	Tenterden, L.
	Walsingham, L.
Lincoln, Bp.	Wynford, L.

(PROXIES).
Ailsa, M.	Lifford, V.
Cholmondeley, M.	Maynard, V.
	Bangor, Bp.
Aylesford, E.	Durham, Bp.
Beverley, E.	Exeter, Bp.
Ferrers E.	St. Asaph, Bp.
Guilford, E.	St. David's, Bp.
Hillsborough, E. (M. Downshire.)
	Braybrooke, L.
Macclesfield, E.	Dunsandle and Clanconal, L.
Onslow, E.
Orford, E.	Kilmaine, L.
Poulett, E.	Sandys, L.
Stamford and, Warrington, E.	Sinclair, L.
	Stourton, L.
Wicklow, E.	Wemyss L. (E. Wemyss.)

LORD ST. LEONARDS

said, in reference to the division which had just taken place, that he had never been more surprised than when he found that Her Majesty's Ministers had determined to call in the aid of proxies to support them in carrying it to a successful issue. To adopt such a course was, he contended, to act in violation of a compact which was understood to have existed between both sides of the House. Their Lordships, in considering the Amendments which had been introduced into the Bill in the other House of Parliament, were proceeding as it were in Committee, examining those Amendments clause by clause; and under those circumstances to resort to the use of proxies appeared to him to be a complete departure from that spirit of fair play in accordance with which the business of that House ought to be conducted. The clause upon which they had just divided, for instance, was one which was altogether new to their Lordships, and one, therefore, with respect to which those noble Lords who were absent, and upon whose behalf proxies had been delivered in, could not have formed an opinion; by which those who were present and who had had the advantage of hearing its provisions discussed, were overruled by the proxies of the absent Peers. He upon those grounds begged to protest against the course which the Government had deemed it right to pursue, and he felt assured that the country would look with equal disfavour upon their proceedings that evening. [A gesture of surprise from Earl GRANVILLE.] He did not quite understand what the noble Earl meant by holding up his hands in that manner. He should nevertheless adhere to the statement which he had made, while he could not refrain from remarking, in conclusion, that it would be more becoming upon the part of the representative of the Government in that House to display a somewhat greater degree of gravity than the noble Earl seemed to think he was called upon to exhibit.

EARL GRANVILLE

said, he was not a little astonished to find that the noble and learned Lord had thought proper to express surprise at the course which the Government had taken, to attribute to them unfairness, to accuse him of a want of due gravity, and even to condescend to mimic the gesture which he had used. It was not, however, the first time he had heard complaints made upon the part of a minority in that House against proxies being called. He had even this very Session heard similar complaints made, and he recollected that upon the occasion to which he referred the noble Earl who was the leader of the Opposition in that House had administered to a noble Lord who urged those complaints the soundest dressing he had ever listened to. The noble and learned Lord was clearly wrong in supposing that their Lordships were in Committee [Lord St. LEONARDS: Ho! ho! I said no such thing. What I did say was, we were, as it were, that is, like as in Committee], or that the rules applicable to their proceedings when in Committee were those by which in considering the Amendments made in a Bill by the other House of Parliament they ought to abide. The noble and learned Lord had himself during the evening proposed certain Amendments, which he had consented to without using the power which he possessed of rejecting them by the use of proxies; but upon a question with regard to which he believed the opinion of the Government to be a sound one, and more especially a question which would have endangered the Bill itself in another place, if he had abstained from calling proxies he should have felt himself guilty of a dereliction of duty.

THE MARQUESS OF BATH

complained of the course which had been adopted by the Government, as being a most unusual one. It had generally been the practice to inform those noble Lords who conducted the divisions on either side of the House of an intention to call proxies, but he had only heard that very morning that proxies would be used. Another complaint which he had to make against the Government was, that the proxies which they had used against the clause, had been originally given to them in order to support it.

Commons' Amendment agreed to.

Clause 53, which exempted the clergy from performing the marriage ceremony over persons divorced on the ground of adultery.

LORD ST. LEONARDS

proposed the insertion of words the effect of which would be to confine the exemption to persons in holy orders at the time of the passing of the Act. The provisions of this Bill were to last for all time, but only the present clergy could claim the exemption from the general law. The proviso required amending besides, for it provided for the security of the clergy from any penalty for solemnizing or refusing to solemnize the marriages in question. Now the word solemnizing should clearly be omitted, for a clergyman would be subject to no penalty, &c., for solemnizing such marriages.

THE BISHOP OF SALISBURY

said, that the noble and learned Lord (Lord St. Leonards) had in the early part of the discussion declared that he had very strong objections to placing any class of Her Majesty's subjects above the law of the land. He (the Bishop of Salisbury) entirely agreed with such an objection, when stated in such general terms, but he thought that in the present case a sufficient answer to the objection of the noble and learned Lord would be, that no question was raised whether the clergy should be placed above the law, but whether the legislature should secure the clergy against the consequences of certain provisions of a law still under the consideration of Parliament. It was not, however, to meet this objection of the noble and learned Lord that he (the Bishop of Salisbury) rose to address their Lordships, but to state to their Lordships the difficulties he felt with regard to the measure of relief which was provided for the consciences of the clergy in the clauses which were now under discussion. He (the Bishop of Salisbury) shared the strong feelings, which he believed had been expressed in another place by the first Minister of the Crown, against giving such consideration, as was contemplated by the clauses of the Bill, to any sense of moral repugnance, which the clergy might entertain, to celebrate such marriages. He (the Bishop of Salisbury) thought that if it were established that according to the law of God persons whose marriage had been dissolved might be remarried, no mere moral repugnance should be sufficient to justify a clergyman in refusing to perform the marriage ceremony. Take for example the case of a person who, although he might have fallen into the grievous sin contemplated by such dissolution, might be a sincere penitent, and might on the Sunday before he went to his church to be married have been admitted by this same clergyman to the Holy Communion. Now, supposing that "a divorce a vinculo" was sanctioned by the Law of God as expressed in the Law and Services of the Church, surely such a case as the one he (the Bishop of Salisbury) had mentioned, would show that no such general plea of moral repugnance ought to be allowed the clergy. It was indeed helping them to place a yoke on the laity which the laity could not be expected to bear. Another objection to the relief that was offered to the clergy was this—it was clogged with a condition which could introduce nothing but confusion into our parishes. A law which would enable clergymen to go through the length and breadth of dioceses performing marriages which their brethren had refused to solemnize, would most certainly increase divisions in the Church. The clergy did, indeed, ask for a fair and equitable protection against a grievance they feared they were about to suffer; but this grievance was of a different nature from that which the other House of Parliament had dealt with, and so the relief offered was not that which he (the Bishop of Salisbury) hoped their Lordships would still provide. The real question was this—the clergy were ministers of a branch of the Church of Christ, the law of which was that marriage was indissoluble. That law had been expressed in the canons and services of the Church, and he asked how was it possible for any person who believed that the Church of England was a true exponent of the law of Christ, to solemnize marriages between persons who had either of them been previously married, and whose marriage was not yet dissolved by death. He admitted that it might be right for the Legislature to make a law exempting their fellow-citizens from the law of the Church, but in doing that they ought in no way to prevent the Church from carrying out her own laws. That was the real question; that was the relief which the clergy sought. He did not complain that they were making a law for the relief of their fellow-citizens; but he complained that by compelling the clergy to perform these marriages they were forcing their consciences against what they were taught by their Church to believe was the law of Christ. He (the Bishop of Salisbury) had the more hope that this claim of the clergy would be recognised by all fair and reasonable men, from having heard the noble Earl (the Lord President of the Council) state most distinctly, on the occasion of a former debate with regard to the admission of the Jews to Parliament, that no reasonable man thought that Parliament was able to entertain and decide questions of doctrine. He (the Bishop of Salisbury) had carefully noted that just and statesmanlike opinion, and he owned that the clear expression of that opinion by such an authority had caused him to give his vote against the admission of the Jews to Parliament with less confidence than he had entertained before. But the Parliament was now, unless the clause with regard to the clergy was amended, doing that which the Lord President had said it had not the power of doing—it was about to rule what was in the case of marriage the law of the Church of England to which the clergy of the Church of England were bound to submit. Rather than that such should be the position of antagonism in which the State should place itself to the Church, he (the Bishop of Salisbury) would prefer the passing of an enactment that in all cases the principle of marriage being a civil contract should be recognised. He was content honestly to accept the change in the relative positions of Church and State which events might make more wide day by day; but he prayed their Lordships not to constrain the clergy to do that which in their souls they believed to be contrary to the law of the Church. There could be no question that the law of the Church of England was, as it had frequently been laid down by Lord Wensleydale in the course of their debates, and as it was expressed in the Office for the Solemnization of Matrimony, that marriage was indissoluble. If they made marriage a civil contract they would give to their fellow countrymen all the relief which they required, and would do nothing oppressive to the consciences of the clergy. The clergy did not ask—they had no right to ask—for any relaxation of the law on the ground that they had a feeling of moral repugnance to these marriages. They asked that they should not be compelled to perform these marriages not on this ground—but on the ground that they were contrary to the law of Christ and of the Church, and in so doing they were, he thought, asking for no more than they had a right to seek, and which, be still trusted, their Lordships would secure to them.

THE BISHOP OF LONDON

did not wish to enter into the question as to whether or not marriage was dissoluble by the law of Christ, because it had been deliberately decided by both Houses of Parliament, in more than one division, after hearing all that could be said from that bench, and after reading what had been written upon the subject, that, by the law of Christ, marriage was in their opinion not indissoluble, and, therefore, the law of the land was perfectly justified in continuing to dissolve marriages as they had been dissolved for the last hundred years. At the same time, he must say that he thought the noble and learned Lord who had moved this Amendment had acted upon a misunderstanding of what were the feelings of a large body of the clergy upon this subject. He had no doubt that many clergymen believed, with the right rev. Prelate who spoke last, that marriage was indissoluble by the law of Christ; but putting aside that question altogether, he was convinced that the only ground upon which a great majority of the clergy who had appended their names to the declaration to which such repeated references had been made, wished that an exemption should be granted to them was, that the marriage service was not such a service as they would like to use over persons whose sin alone had put them in the position of being remarried. It was true that in the declaration in question there were certain words which might be understood to mean that was indissoluble, and that such marriages as those contemplated by the Bill were adulterous; but their Lordships well knew that when a large mass of persons came to act together, it was absolutely necessary that they should not scrutinize with a very critical eye the exact phraseology of the declaration to which they might put their names; and he happened to know, as a matter of fact, that many clergymen who had signed the declaration, in the present instance, had done so, not because they agreed with every word of it, but simply because they thought it desirable that the very solemn service which was given in our Book of Common Prayer should not be used with words incongruous to the occasion, in the marriage of persons divorced for adultery. It was on that ground, and on no other, that he should wish the clergy to have the exemption which had been given to them. There were, it was true, other services of the Church which the clergy had a difficulty in using, on account of the circumstances of the persons over whom they were used. If their Lordships were met to consider a question which had to do with the construction of the burial-service, for example, he doubted whether they would frame that service exactly in the terms in which it now stood; and although they were not assembled to construct the marriage service afresh, yet they were now called upon to discuss a law which had reference to that service, and they might, therefore, consider whether it was suitable to be used on certain particular occasions. Therefore, although he and a vast number of the clergy maintained that marriage was not indissoluble by the law of Christ—that adultery was so heinous a crime that, in itself, it destroyed marriage—it was quite consistent for them to wish that they should not be obliged to use all the expressions in the marriage service in the remarriage of persons divorced for adultery. Their Lordships had already, in four divisions, shown their indisposition, considering the great difficulties of the case, to allow the clergy to have an exemption, and the Bill went down to the Lower House without any such Amendment. Surely, the clergy ought, if they were anxious for this exemption, to be very thankful that they had got any exemption at all from the House of Commons, for it was generally believed that their feelings were more respected by their Lordships than by the other branch of the Legislature. For his own part, if he were asked for his opinion, he would advise the clergy to accept the compromise which the Bill, as it now stood, offered to them. If the Bill were to be thrown over for three or six months, and another Session were to be, he would not say wasted, but misspent in discussions of a kind by no means calculated to promote public morality, he was afraid their claims would not be so readily acknowledged as they had been. To allow a clergyman to go into another man's parish and to celebrate marriage, was, undoubtedly, something new; but so was the exemption, for the clergy had hitherto been obliged to remarry divorced persons. Moreover, he did not think it was very likely that parties would be so glad to make a parade of their sin as to go to their clergyman and request to be married in his parish church, and it was extremely unlikely that, in the event of his refusing to officiate himself they would seek to bring in another to officiate for him. He believed that the provision with respect to the parish church had been introduced, not with any idea that it would ever be practically useful, but because of certain strong language used by the friends of the clergy in both Houses, which had created an impression in the minds of the laity that the clergy wanted to domineer over them, The House of Commons wished to have the principle recognized that the parish churches belonged to the laity as well as to the clergy; and, when they were making a great, and he thought a just, concession to a proper feeling on the part of the clergy, to be able to point to something which showed that they were determined not to be domineered over. His advice, therefore, to the clergy was, that they should receive the exemption with the condition which had been annexed to it.

VISCOUNT DUNGANNON

said, he had heard with much surprise and regret the observations of the right rev. Prelate. He maintained that the Bill inflicted pains and penalties on the clergy for acting according to their conscience. It was a direct insult to a clergyman to empower another clergyman to go into his church and celebrate a marriage which he had conscientiously objected to in the face of his parishioners, But no right-minded clergyman would perform such an act under such circumstances, and so far, the Bill would be nugatory or worse. As regarded the Amendment of the noble and learned Lord, he (Viscount Dungannon) could not understand why clergymen not yet in holy orders, should not entertain conscientious scruples as well as those "now in holy orders." Why should they, therefore, be excepted from the Bill? The claim was caculated to open wide the gates of schism and distrust in the Church, and to lay the foundation of want of confidence among the clergy. He should therefore move that the latter part of the clause be struck out. The whole Bill was highly objectionable as injuriously affecting the domestic habits and the social and moral order of the community; and he was altogether opposed to it, upon a conscientious conviction of its unsatisfactory character.

THE BISHOP OF OXFORD

said, that the whole principle upon which what he might call the immunity for the clergy was claimed had been misunderstood. It had been argued as if the clergy were asking to be exempted in future from doing something to which all other people were liable; whereas he believed the true state of the case was, the clergy asked that a law should not be made which would subject them to a peculiar infliction, from which all other men were exempt. If he could show that, he hoped the House would pause before deciding upon the question before it. By recent legislation two things had been done. The civil contract of marriage had been sanctioned, in addition to the religious marriage by the clergy, and especial care had been taken that no reproach should rest upon such marriages, but that they should be considered equally as good and honourable as marriages performed in the church. That followed from the adoption of a true standard of civil and religious liberty. Parliament had gone a step further, and had enacted that ministers of all other denominations should perform the religious ceremony of marriage according to their own rites; and in doing that too, they had only followed out the principles of civil and religious liberty. But let the House consider how this new legislation would affect, and affect alone, the clergy of the Established Church. They did not say that a Dissenting minister should be bound to marry a member of his congregation whom he might object to marry upon the ground of having been divorced; but they were going to subject ministers of the Established Church—of their own Church—to an obligation to which no other ministers were subject. The clergy of the Established Church were thus placed at a great disadvantage, and were not allowed to act upon their conscientious views, while Dissenting ministers of all denominations were completely unrestricted. Upon that ground, alone, the clergy had a fair right to complain. Then, again, it had been argued that compliance with the legislation of Parliament was a part of the contract by which the clergy held the national endowments. But a contract always appeared to him (the Bishop of Oxford) to be an agreement which bound two parties to a common result, and which neither of the two parties, without the concurrence of the other, had any right to change. No one could deny that the clause would introduce a new element into the contract between the clergy and the nation, without the assent of the former. Upon that ground also, he thought the clergy had a right to complain. That was an objection which, if he were an advocate of the indissolubility of marriage, he should urge just as strongly as he did at present. There was a particular form of service prescribed by law, which governed the clergy of the Established Church in performing marriages, and they had no power to alter it. If the words of that service were at variance with the facts under which they were called upon to perform the marriage. surely that was another fair ground of objection. In another place, where the clergy were not so much represented as in their Lordships' House, not only those who expressed the feelings of the clergy, but many of those who differed from them, joined, to their honour, in saying that they would not be parties to inflicting upon the clergy of the Established Church an injury which they would not make applicable to the ministers of other denominations. It had been said that a great agitation had been raised, and great efforts had been made, to get signatures to the declaration of the clergy; but so far from that being the case, 8,000 names were freely appended to it within a fortnight of the time when the clergy began to realize the state of things that was coming upon them, and it showed, in a remarkable degree, the universality and extent of the conviction created in their minds by this measure, for men of all shades of opinion in the national Church—men who never before saw their names standing together to a common declaration or protest—united in subscribing this declaration, feeling that there was being inflicted on their consciences, by this new legislation, that which was galling to them, and to which they could not honestly give their assent. He prayed their Lorships not to believe that the passing of this clause would meet the wishes or feelings of the clergy. He had, that very night, received a letter from a clergyman holding an important position in this diocese, in which he said it had been asserted in the House of Commons that the clergy were satisfied with the so-called compromise of the Attorney General, by which the control of the church and the service celebrated therein were, in effect, taken out of the hands of the incumbent, and by which adulterers were to be enabled to hire any clergyman of the diocese to do that for them which the incumbent of the parish refused to do; that he had the charge of a parish containing 50,000 souls, and that no earthly consideration would ever induce him to open his church to be desecrated by the celebration of the marriage service in such circumstances; that the clergymen of the two parishes adjoining his had made a similar declaration, and he added that no time had been given to enable the clergy to make their sentiments known on the subject. He agreed with the writer of this letter, that the clergy had not had an opportunity of making known their views upon this question. He begged also to say that he thought this was one of those cases in which it would be highly improper if the opinions of noble Lords present were overruled by the use of proxies. Proxies were given to be used by the Government, or by others who held them, when broad general questions of constitutional principle were involved, or great leading questions with regard to which those who gave them had distinctly and clearly made up their minds, and held views in unison with those to whom their proxies were committed; but they were not applicable in cases like the present, when the variations of opinion arose in the course of debate, and when the point at issue were not of that broad character that admitted of no doubt as to how a person would vote if he were present. Proxies were excluded in Committee for this very reason, and he might state that aright rev. Brother was that night very much puzzled how to act with a proxy, just because he was uncertain how the rev. Brother, for whom he held it, would have acted had he been present. He trusted, therefore, that whatever decision their Lordships arrived at on this question, there would be no attempt made to overrule the decision of those present by the proxies of members who were absent. He would rather that no immunity was given to the clergy than that these two clauses should stand as they now did. He implored their Lordships to strike out the immunity to the clergy altogether, and leave them to act as their consciences would make them act, rather than give effect to a measure which would only introduce confusion and mischief. He asked them to leave the marriage of divorced parties to be performed merely as a civil contract, which they had declared was as honourable as marriage in church, and strike out the whole of that clause which professed to confer a boon upon the clergy. They would observe that the clause did not affect the Bishop; and he avowed before their Lordships that if he knew of one of these hired interlopers coming in the way he was here permitted to do, to enter a church, he would meet him at the door with an inhibition and suspend him from his office. There was nothing in the clause to prevent him so doing. The great principle of the Church of England as regarded the parish church was that the Bishop was guardian of that church; that the parish priest was his representative, and that the services of the church were performed not for the clergy but for the laity. Talk of the clergy domineering over the laity in this nineteenth century! Amid all the liberty of thought and license of action we enjoyed, with the perfect equality of every sect and the free avowal of every opinion, amid all the supremacy of the laity which this implied, for any reasonable man to talk of any one of the clergy domineering over the consciences of the laity seemed to him as preposterous as to talk of their endeavouring to overturn the monarchy, or putting the Crown of England below the mitre. The clergy were connected with particular parishes for the purpose of preventing the coming in of any kind of division; but the beneficent intention of that arrangement would be overruled by the clause now before their Lordships. He begged their Lordships to understand that it would not be the respectable clergy who would take advantage of this proposed Amendment to go into the churches of their reluctant brethren. It was not the respectable neighbouring clergyman that would come in to create the discord. No; it was the wretched skulking man—the shame and reproach of the English ministry—the clergyman living away from his own parish in consequence of debt, and glad to go anywhere for the sake of fees; it was only such a person as this who would go into another parish to sow discord amongst those in whose service the resident clergyman was spending his health and strength. It was to give this licence to any man whom the lowest sense of decency would not prevent from clutching the paltry fee which would fait to him that they proposed to do away with all that was held sacred in reference to the solemnization of the marriage rite. Most earnestly did he beseech their Lordships to refuse their sanction to a provision so calculated to create discord. But if the opponents of the Amendment were to be overruled, let it be by the votes of those who had heard the arguments, and not by means of the votes of noble Lords who were absent. He would ask the Government not to resort to this latter class of votes for the purpose of introducing anew source of division amongst the clergy of the Established Church. The Right Rev. Prelate then moved to omit ("on the ground of his or her adultery.")

On Question, Whether the said words shall stand part of the clause? their Lordships divided:—Contents37; Not-Contents 32: Majority 5.

CONTENTS.
Cranworth, L. (L. Chan cellar.)	Congleton, L.
	Dacre, L.
Wellington, D.	Dartrey, L. (L. Cremorne.)
	Denman, L.
Lansdowne, M.	Foley, L [Teller.]
Townshend, M.	Glenelg, L.
Clarendon, E.	Granard, L. (E. Grcnard.)
Ducie, E.
Fortescue, E.	Howden, L.
Granville, E.	Hunsdon, L. (V.Falkland.)
Harrowby, E.
Portsmouth, E.	Monteagle of Brandon, L.
Shaftesbury, E.
Suffolk and Berkshire, E.	Overstone, L.
	Panmure, L.
	Portman, L.
Sydney, V. [Teller.]	Rivers, L.
London Bp.	Sheffield, L. (E. Sheffield.)
Boyle, L. (E. Cork and Orrery.)	Stanley of Alderley, L.
	Strafford, L. (V. Enfield.)
Brodrick, L. (V. Midleton.)	Sundridge, L. (D. Argyll.)
Camoys, L.
Clandeboye, L. (L. Dufferin and Claneboye.)	Wycombe, L. (E. Shelburns.)

NOT-CONTENTS.
Norfolk, D.	Chichester, Bp.
Bath, M. [Teller.]	Lincoln, Bp
Salisbury, M.	Oxford, BP.
Winchester, M.	Rochester, Bp.
Amherest, E.	Bagot, L.
Carnarvon, E.	Bayning, L.
Cottenham, E.	Berners, L.
Dartmouth, E	Churchill, L.
De La Warr, E.	Dc Mauley, L.
Nelson, E. [Teller.]	Petre, L.
Powis, E.	Polwarth, L.
Romney, E.	Rayleigh, L.
Talbot, E.	Redesdale, L.
	Southampton, L.
Dungannon, V.	Tenterden, L.
Hutchinson, V. (E. Donoughmore.)	Truro, L.
	Wynford, L.

Resolved in the affirmative.

On Motion, that their Lordships agree with the clause,

THE BISHOP OF OXFORD

then moved that their Lordships should disagree to the proviso added to Clause 53 and Clause (G).

THE EARL OF CARNARVON

supported the Amendment of the right rev. Prelate. It was to the astonishment of the House of Commons that the Attorney General had, twenty-four hours after the Government made a concession to the clergy, moved an Amendment which rendered that concession nugatory. He deeply regretted that such a course should have been adopted.

EARL GRANVILLE

said, that his noble Friend (the Earl of Carnarvon) was mistaken in his view of the circumstances under which the condition was added to the concession.

LORD REDESDALE

believed that no honourable clergyman would undertake a service in another clergyman's church, when the latter was opposed to the performance of that service. Neither did he believe that any respectable couple would present themselves for marriage in the church of a clergyman who could not conscientiously consent to their marriage. He would prefer rejecting the concession altogether to taking it with the condition now annexed to it.

VISCOUNT DUNGANNON

thought that the condition annexed to the clause was an outrage to the feelings of the clergy.

On Question, Whether to agree? their Lordships divided:—Contents 37; NotContents 27: Majority 10.

CONTENTS.
Cranworth, L. (L. Chancellor.)	Congleton, L.
	Dacre, L.
Wellington, D.	Dartrey, L. (L. Cremorne)
Lansdowne, M.	Denman, L.
Townshend, M.	Foley, L. [Teller.]
	Glenelg, L.
Clarendon, E.	Granard, L. (E.Granard.)
Ducie, E.
Fortescue, E.	Hudson, L. (V. Falkland,)
Granrille, E.
Harrowby, E.	Monteagle of Brandon, L.
Portsmouth, E.
Powis, E.	Overstone, L.
Shaftesbury, E.	Panmure, L.
Suffolk and Berkshire, E.	Portman, L.
	Rayleigh, L.
Sydney, V. [Teller.]	Rivers, L.
	Stanley of Alderley, L.
London, Bp.	Strafford, L. (V. Enfield)
Boyle, L. (E. Cork and orrery.)	Sundridge, L. (D.Argyll.)
Camoys, L.
Churchill, L.	Wycombe L. (E. Shelburne.)
Clandeboye, L. (L. Dufferin and Claneboye.)

NOT-CONTENTS.
Norfolk, D.	Lincoln, Bp.
Bath, M. [Teller.]	Oxford, Bp.
	Rochester, Bp.
Amherst, E.	Salisbury, Bp.
Carnarvon, E.
Cottenbam, E.	Bagot, L.
Dartmouth, E.	Berners, L.
De La Warr, E.	Calthorpe, L.
Nelson, E. [Teller.]	Petre, L.
Romney, E.	Polwarth, L.
Talbot, E.	Redesdale, L.
	Sheffield, L. (E. Sheffield.)
Dungannon, V.
Hutchinson, V. (E. Donoughmore.)	Southampton, L.
	Tenterden, L.
Chichester, Bp.	Truro, L.

Amendments agreed to.

Other Amendments considered and agreed to, and a Committee appointed to prepare reasons to be offered to the Commons for the Lords disagreeing to One of the said Amendments. The Committee to meet To-morrow at One o'clock.

In the division on the Amendment moved to disagree to Clause (F), added by the Commons; Proxies being called for, One of the Tellers declined to receive the Proxy of The Lord Worlingham, The Earl of Suffolk and Berkshire who held it having answered from the Bishops' Bench:—

Moved, That the Tellers be directed not to receive the Proxy.

Contents 34; Not-Contents 34.

Whereupon, according to the ancient Rule in the Law, "Semper presumitur pro Negante," it was Resolved in the Negative.

CONTENTS.
Bath, M. [Teller.]	Lincoln, Bp.
Salisbury, M.	Oxford, Bp.
Winchester, M.	Rochester, Bp.
Amherst, E.	Salisbury, Bp.
Buckinghamshire, E.
Carnarvon, E.	Bagot, L.
Dartmouth, E.	Bayning, L.
De La Warr, E.	Berners, L.
Hardwicke. E.	Boston, L.
Nelson, E. [Teller.]	Churchill, L.
Powis, E.	polwarth, L.
Romney, L.	Rayleigh, L.
Talbot, E.	Redesdale, L.
Verulam, E.	Sheffield, L. (E. Sheffield.)
Dungannon, V.	Saint Leonards, L.
Hutchinson, V. (E. Donoughmore.)	Tenterden, L.
	Walsingham, L.
Chichester, Bp.	Wynford, L.

NOT-CONTENTS.
Cranworth, L. (L. Chancellar.)	De Mauley, L.
	Denham, L.
Norfolk, D.	Foley, L. [Teller]
Wellington, D.	Glenelg, L.
Lansdowne, M.	Granard, L. (E. Granard)
Townshend, M.
Clarendon, E.	Howden, L.
Cottenham, E.	Hunsdon, L. (Falkland)
Fortescue, E.
Granville, E.	Overstone, L.
Harrowby, E.	Panmure, L.
Harrowby, E.	petre, L.
Suffolk and Berkshire, E.	Portman, L.
Sydney, V. [Teller]	Rivers, L.
Camoys, L.	Stanley of Alderley, L.
Clandeboye, L. (L. Dufferin and Claneboye.)	Stafford, L. (V. Enfield.)
	Sundridge, L. (D. Argyll)
Congleton, L.
Dacre, L.	Truro, L.
Dartrey, L.(L, Cremorne.)	Wycombe, L. (E. Shclburne.)

House adjourned at half-past One o'clock A.M., till To-morrow, a quarter to Two o'clock.