REPORT OF AMENDMENTS. (Hansard, 4 June 1857)

LORD BROUGHAM
said, that although another opportunity would occur of giving his opinion upon this Bill, yet having, from accidental circumstances, not had the advantage of being present at its former 1097 stages, he thought it right to refer to one or two points upon the present occasion. He entertained a very strong; objection to an omission in the Bill itself—of which, however, generally speaking, he entirely approved—and he also objected to what had been called an "Amendment" that had been made in Committee, believing that in the history of legislation, they would not be able to find an instance in which the word was more inaccurately used. The strongest objection to the action for criminal conversation—which on all hands, or perhaps he ought rather to say, in deference to his noble and learned Friend (Lord Wensleydale), on almost all hands, was admitted to be an evil—was the grievous and crying injustice which was done to the unhappy wife of the plaintiff. Behind her back, without even the possibility of knowing that such an action was pending, with no service of notice, with perfect facility to her husband of colluding with the alleged adulterer, her character might be for ever ruined and undone. Instances of this had repeatedly occurred. On a former occasion, some were stated by his noble and learned Friend (Lord Lyndhurst), and he had himself mentioned one, in which an action for criminal conversation was compromised by the family of the defendant paying a very trifling sum, all that the husband wanted being a, verdict, preparatory to obtaining a divorce; and it turned out, by the proceedings in the Ecclesiastical Court, that not only was the wife perfectly guiltless, but the marriage had never been consummated, either by the husband or any other person. These were among the strongest arguments for abolishing the action for criminal conversation; but to a great degree the same objection applied to the suit instituted under the Bill; for the husband might proceed against the wife, and the alleged adulterer have no knowledge of those proceedings. [The LORD CHANCELLOR: The proposal was to make them both defendants.] That did not appear by the Bill as reported. He was glad to hear such an alteration was intended. But he now came to consider what was called the Amendment. He found that their Lordships had invented a new species of divorce, and for that invention of theirs they would probably not deem it necessary to take out a patent, inasmuch as they might be quite sure no one would have any desire to pirate their invention or infringe their right of authorship in the design. It was an in- 1098 vention of a new species of divorce, being neither separation à mensâ et thoro nor divorce à vinculo matrimonii, but partly one and partly the other, having the defects and imperfections of both. It was partial and imperfect like divorce à mensâ et thoro, and being irrevocable like divorce à vinculo, it perpetuated those defects. With respect to one party it was a complete divorce. The vinculum was dissolved, the marriage was annihilated, and that party might marry again. But with respect to the other party, it was only half a divorce. That party could not marry again. He might take it that, generally speaking, the husband would be allowed to marry again, and not the wife, for this reason,—although the Bill somewhat dishonestly, as he thought, by way of appearing to give equal justice to both, provided that either party might be prevented, if not the party prosecuting the divorce. We knew very well, that in ninety-nine cases out of a hundred, it was the husband and not the wife who prosecuted for divorce; this was the result of the principles that guided the legislative practice, and the new court was to proceed on the same. Substantially, therefore, their Lordships' invention left the husband free, but, with the usual imperfections of all unnatural productions, all hybrid and monstrous things, left the wife not altogether free, nor altogether fettered. Part of her chain was removed, but some links were left clanking round the rags in which their Lordships were pleased to clothe her. She was not to marry again. She was doomed to the alternative of prostitution or want—of sinning or starving—of the streets or the workhouse. Truly, with all his respect for their Lordships, and all the proneness which he naturally had to admire originality of conception, he should be guilty of some of the inconsistency in which this invention was framed, and of the hypocrisy which it largely tended to encourage, were he to express any admiration of the original genius which it displayed. Supposing they put all violation of justice out of their view (no little matter in an assembly which was the highest court of justice in the realm)—supposing they put all regard for morality out of view (no little sacrifice) even for argument's sake, in a place adorned by the dignitaries of the Church—supposing justice and morality out of the question, and taking it upon the lower ground of expediency, he wanted to know what they 1099 gained? Their object was to prevent adultery. Had this invention such a tendency? What if it had no tendency whatever of the kind? What if, on the contrary, it had a tendency to encourage the offence? And such must needs be its effect, unless he were told, contrary to all the maxims and principles of our law, and contrary to the fact, that the woman, and not the man, was to be regarded as the principal offender. The law said, and experience proved, that it was rather the man than the woman, and this invention directly encouraged the man in the offence by giving him an Act-of-Parliament guarantee against having to take to his home the accomplice of his guilt. How often have men been checked in their course of invading their neighbour's bed by the apprehension that they might be tied for life to the victim of their seduction, whom the laws of honour would cast upon their hands? But this law abrogated those laws at once, and made it utterly impossible the penalty of his offence should fall upon the seducer. With respect to the woman, the loss of her station as a wife, the loss of her position in society, the loss of intercourse with her children, the loss of everything which a woman valued most in social existence, of all that was valued even by women whom no care for children affected—afforded, as he thought, much better security against her going astray than this addition—unjustly, uncharitably, and inexpediently preventing her marriage, not merely with the adulterer, but with any person whatever. He, therefore, took the view taken, he was sorry to say, by a minority of their Lordships; and the more he considered the point, the more confidently he held the opinion, that a greater blot never was affixed upon a measure in itself highly beneficial than had been imprinted upon this by the Amendment to which he had now directed their attention.

§ LORD REDESDALE
said, he must remind the House that the noble and learned Lord had altogether omitted one very important argument from his consideration in denouncing the Amendment in question—an argument which he (Lord Redesdale) had stated in support of the alteration in Committee, and to which he believed their Lordships generally assented—namely, the distinct asseveration in Holy Scripture that "he who marrieth a woman that is divorced committeth adultery." On that ground the Amendments were introduced 1100 —on that ground they were supported, and seeing that they were entirely in accordance with the law of God, he could not withhold from them his assent. It was not his intention at present to enter into controversy with the noble and learned Lord with regard to his second objection, because it would be discussed at a future stage.

LORD BROUGHAM
replied, that it was far too late in the day to bring forward a quotation from St. Matthew as a ground for the insertion of a clause in this Bill forbidding a woman to marry again, as well as a man, after being divorced, considering that not only is the same injunction not contained in the writings of two other Evangelists, but that for 150 years we had gone on allowing both parties to marry again after being divorced. The opinion of learned men had also been expressed in support of that doctrine, as might be seen from the writings of the learned and able Bishop Cousins.

§ LORD REDESDALE
said, that the words of St. Matthew were sufficiently explicit for him whether confirmed by the other Evangelists or not.

THE EARL OF DONOUGHMORE
said, he had supported the Amendment in question when under the consideration of the Committee, on the ground that he thought the party who had broken the marriage contract had no right to profit by his or her own crime.