§ House in Committee (according to Order) on Re-commitment.
§ Clause 1 to 16 agreed to.
§ Clause 17, (Divorce à mensa et thoro by reason of Desertion of Wife).
THE LORD CHANCELLORexplained that this clause, as it stood, provided that upon desertion by the husband for two years, a wife might apply for a divorce à mensâ et thoro. Since the House had last had the Bill before it he had received several letters from men, complaining that there was no provision of a like nature extended to them. Upon considering the matter, it seemed to him that there was no sufficient reason why, upon a man being deserted by his wife for two years, he should not have the right of obtaining a divorce à mensâ et thoro from her. He I reminded their Lordships that as the Bill stood last year the clause to which the one under consideration answered, merely provided that upon such desertion a wife might petition for alimony. That, however, was but an incomplete remedy, as the husband, to save the payment of alimony, might re-quire the wife to return to him, and thus put an end to her right to the payment. But, by enabling a wife to sue for a divorce à mensâ et thoro upon desertion, this was put a stop to, and the further advantage was gained of securing a mode of relief; applicable in the converse case to the man. With a view, therefore, to extend the advantages of this clause to males, he proposed the addition of the words "husband or" in the second line of the clause.
§ LORD ST. LEONARDSsaid, this Bill sanctioned for the first time the principle that divorces could be granted upon the sole ground of desertion. That he considered to be a very dangerous principle, and would open the door to great collusion, The Select Committee which had considered this subject had recommended that in cases of desertion the Court should be empowered to grant the wife alimony, but not to pronounce a divorce. That was a much more reasonable proposition than the present. As the clause now stood, nothing could be easier than for the husband to absent himself for the very object of procuring a divorce à mensâ et thoro. He should therefore move as an Amendment in line 13 to strike out the words "divorce à mensâ et thoro," in order to restore the provision for alimony to a deserted wife; 1404 and thus replace the clause as it was left by the Select Committee.
§ EARL GREY rose to order. The Lord Chancellor had proposed an Amendment in line 12, and until that was disposed of their Lordships could not discuss an alteration in line 15. They ought to proceed according to the recognized rules and practice of Parliament.
§ LORD ST. LEONARDSagreed with the noble Earl, but maintained that the course he had pursued was calculated to save the time of their Lordships. The clause as it stood provided that desertion by her husband should give a wife a right to divorce à mensâ et thoro. The Lord Chancellor now proposed to extend the clause so as to meet the case of a wife deserting her husband. Now, his argument was that neither husband nor wife should have a right to divorce for desertion; and if his Amendment to that effect were adopted by their Lordships there would be no necessity for discussing the alteration proposed by the Lord Chancellor in line 12.
§ EARL STANHOPEthought that much of the irregularity which arose in Committee proceeded from the unsatisfactory mode in which the Amendments were printed. They appeared, not according to the order in which they ought to be taken up, but according to the alphabetical order of the names of the Peers proposing them.
§ EARL GRANVILLEsaid, that some latitude should be allowed to their Lordships in the discussion of Amendments applying to the same clause. At the same time he thought the House would gain much if it gave rather more authority to the Peer in the chair. He could not make a proposal of that kind when the Lord Chancellor was presiding, because the noble and learned Lord was a nominee of the Government; but he was at liberty to say that if the Chairman of Committees, an officer selected by their Lordships themselves, were invested with a kind of mild despotism, great advantage would result in the transaction of public business.
§ LORD REDESDALE(the Chairman of the Committee) replied, that the question was the Amendment proposed by the Lord Chancellor in line 12. In no circumstances would be have put any other question than that; but it was always 1405 open to any noble Lord to suggest that, for the sake of convenience, two Amendments bearing upon the same subject should be discussed together; and it certainly was very convenient to bear explanations as to the whole clause.
EARL, FITZWILLIAMwished to make an observation on a word in the second line of the clause. He thought that "separation" should be substituted for "divorce" with reference to the proceeding here contemplated as the result of desertion.
THE LORD CHANCELLORremarked that the clause, as it now stood, provided that any wife deserted by her husband for two years should have a right to divorce à mensâ et thoro. Since the Bill was printed he had received a number of letters from husbands stating that a corresponding benefit ought to be given to them, he saw no reason why that request should not be complied with, and therefore be proposed to introduce words in line 12 giving a husband the same remedy if deserted by his wife as the clause now gave to a wife if deserted by her husband. Last Session great discussion took place as to whether in the case of unjustifiable desertion there ought not to be divorce à vinculo matrimonii, as was the law in Scotland. The Committee decided in the negative; but their Lordships were generally of opinion that some relief ought to be given, and it was at his own suggestion that, instead of being entitled to divorce à mensâ at thro for desertion, a wife was to be simply enabled to petition the Court, and obtain an order for alimony. Since that time he had changed his mind upon the point, his objection being that the husband might come back and deprive his wife of the relief granted by the Court. What, in his opinion, was necessary was that the wife should have a new status under such circumstances. He had, therefore, substituted the present clause, and made provision for a divorce àmensâ et thoro, which really amounted only to a separation. The precise question before the House was whether the husband should not have the same relief as the wife.
LORD CAMPBELLsaid, he did not object to the husband having the same right as the wife to obtain from a competent court, on reasonable evidence, a separation, equivalent to what was known to the law as a divorce à mensâ et thoro, which was not, in fact, a divorce, because the parties might come together again and 1406 live happily the rest of their days. It was proposed by some that there should be no community of property whatever between husband and wife, and he was surprised that the proposal should have received the sanction of his noble and illustrious Friend (Lord Brougham)—illustrious for his promotion of law reform and his defence of the weaker sex. With married persons there should be community of property as well as of persons; but when a new status was acquired by divorce à mensâ et thoro the community of property ought to cease. The wife's property would then be protected, and they would bear no more of the cruel instances of husbands returning and sweeping away everything belonging to their deserted wives
§ Amendment agreed to.
§ Question again proposed, "That the Clause, as amended, stand part of the Bill."
EARL FITZWILLIAMsaid, a woman who was separated occupied a different position from a woman who was divorced. The general public did not understand the legal distinction between divorce à vinculo and divorce à mensâ et thoro. He would, therefore, move to substitute the word "separation" for "divorce à mensâ et thoro."
LORD CAMPBELLsaid, that the noble Earl's proposal would unnecessarily introduce an element of uncertainty into the Bill. The phrase "divorce à mensâ et thoro" was well known to the law, its attributes well understood, and its import clear and defined. Instead of it the noble Earl proposed to introduce a new word—a word, too, already appropriated to another state of things; and the result would be that uncertainty as to the intent of the Legislature would be created, to quiet which a long course of litigation might be necessary.
THE LORD CHANCELLORwould not pledge himself to the precise words, but thought they should insert the words "judicial separation, which shall have all the effect of" before "divorce à mensâ et thoro."
§ EARL GREYwas for reforming legal nomenclature generally, and getting rid of Latin where possible. Why not call a divorce à vinculo "a divorce," and a divorce à mensâ et thoro" a separation"?
§ LORD ST. LEONARDSsaid, the answer to the noble Earl's question was simply because a divorce à mensâ et thoro was not a separation—which was a voluntary 1407 parting capable at any time of being got over by reconciliation and recohabitation—but a divorce, an utter and total disjunction of the marriage connection so far as "bed and board" was concerned. It would be as well to call things by their right names, even in an Act of Parliament.
THE EARL OF WICKLOWsaid, the noble and learned Lord's explanation itself showed that there was an ambiguity in the use of the word divorce, which would lead to confusion in common minds, and ought to be removed.
On the suggestion of the LORD CHANCELLOR, words were inserted to the effect of enabling parties to petition for a "judicial separation" instead of a "divorce à mensâ et thoro."
THE DUKE OF ARGYLLhoped it was understood that a corresponding substitution of terms would be made in the rest of the Bill wherever it was necessary.
§ LORD REDESDALEsaid, that would be understood as a matter of course.
§ On the Question, "That the Clause, as amended, stand part of the Bill,"
§ LORD ST. LEONARDSsaid, he thought the substitution of "judicial separation" for "divorce à mensâ et thoro" was a very unwise one, altering as it did, and without, as it seemed to him, due consideration, a well-understood phrase which had been known to the law from the earliest times. Their Lordships could not define what "judicial separation" was. Besides, he might remind them that an alteration of terms did not change the substance of the thing meant, and it was therefore desirable to adhere to the old phraseology. The noble Earl (Earl Fitzwilliam) seemed to speak of "judicial separation" as if it were something distinct from "divorce à mensâ et thoro," but it was, in point of fact, the same thing. He conceived that their Lordships' object was not to separate a man and wife without sufficient cause, but rather to restore wherever possible the restoration of conjugal rights. Why then, that being their object, grant a divorce à mensâ et thoro to a husband or wife who might be deserted for two years? He (Lord St. Leonards) believed the intention of the Committee upstairs, on whose Report the Bill was founded, was to adhere as nearly as possible to the established law, but to give a new tribunal, and readier means of access to that tribunal, to all classes of the population. He would move that the clause be omitted.
§ On Question, "That the said Clause stand part of the Bill,"
§ Their Lordships divided:—Contents 76; Not-Contents 37: Majority 39.
| CONTENTS. | |
| Canterbury, Archbp. | Worcester, Bp. |
| Cranworth, L. (L. Chancellor.) | |
| Ardrossan, L. (E. Eglintoun.) | |
| Cleveland, D. | Aveland, L. |
| Somerset, D. | Belper, L. |
| Wellington, D. | Brougham and Vaux, L. Calthorpe, L. |
| Cholmondeley, M. | Campbell, L. |
| Lansdowne, M. | Carew, L. |
| Townshend, M. | Churchill, L. |
| Congleton, L. | |
| Abingdon, E. | De L'Isle and Dudley, L. |
| Airlie, E. | De Tabley, L. |
| Albemarle, E. | Foley, L. [Teller.] |
| Amherst, E. | Granard, L. (E. Granard) |
| Burlington, E. | |
| Clarendon, E. | Hatherton, L. |
| Cowper, E. | Kintore, L. (E. Kintore.) |
| Ellesmere, E. | Leigh, L, |
| Fitzwilliam, E. | Lilford, L. |
| Fortescue, E. | Lyndhurst, L. |
| Granville, E. | Lyttelton, L. |
| Grey, E. | Manners, L. |
| Harrowby, E. | Meldrum, L. (M. Huntly.) |
| Mayo, E. | Melros, L. (E. Haddington.) |
| Minto, E. | |
| Morley, E. | Mont Eagle, L. (M. Silgo.) |
| Munster, E. | |
| Orkney, E. | Monteagle of Brandon, L. |
| Portsmouth, E. | |
| Shaftesbury, E. | Mostyn, L. |
| Stanhope, E. | Panmure, L. |
| Ponsonby, L. (E. Bessborough.) [Teller.] | |
| Bolingbroke and St. John, V. | |
| Rivers, L. | |
| Falmouth, V. | Rossie, L. (L. Kinnaird.) |
| Gordon, V. (E. Aberdeen.) | Saye and Sele, L. |
| Somerhill, L. (M. Clanricarde.) | |
| Hardinge, V. | |
| Hutchinson, V. (E. Donoughmore.) | Stanley of Alderley, L. |
| Sundridge, L. (D. Argyll.) | |
| Sydney, V. | |
| Torrington, V. | Talbot de Malahide, L. |
| Truro, L. | |
| Kilmore, &c., Bp. | Wensleydale, L. |
| London, Bp. | Wrottesley, L. |
| NOT-CONTENTS. | |
| Manchester, D. | Bangor, Bp. |
| Norfolk, D. | Durham, Bp. |
| Lincoln, Bp. | |
| Salisbury, M. | Llandaff, Bp. |
| Westmeath, M. | Oxford, Bp. |
| St. Asaph, Bp. | |
| Belmore, E. | St. David's, Bp. |
| Chichester, E. | |
| Derby, E. | Berners, L. |
| Harrington, E. | Boston, L. |
| Malmesbury, E. | Colville of Culross, L. [Teller.] |
| Nelson, E. [Teller.] | |
| Talbot, E. | Denman, L. |
| De Ros, L. | |
| Dungannon, V. | Downes, L. |
| Lifford, V. | Feversham, L. |
| St. Vincent, V. | Gray, L. |
| Kenmare, L. | Redesdale, L. |
| Lovat, L. | Stafford, L. |
| Lovel and Holland L. (E. Egmont.) | Saint Leonards, L. |
| Vaux of Harrowden, L. | |
| Petre, L. |
§ Clauses 18 to 21. agreed to.
THE LORD CHANCELLORsaid, he now rose to propose a clause with reference to a question which occasioned considerable discussion when this Bill was last before their Lordships—namely, as to the punishment of persons who were guilty of adultery—namely, whether by imprisonment or by a money fine in the event of adultery being declared a misdemeanour. It was originally proposed by this Bill that an action of crim. con. should not be brought until after a divorce had been obtained. That proposition was very fully discussed, but it was not satisfactory to their Lordships, and it was rejected. The noble and learned Lord opposite (Lord St. Leonards) proposed that adultery should be constituted a misdemeanour, and that proposition had been provisionally adopted. In the interval he (the Lord Chancellor) had considered with great attention the propriety of carrying that suggestion into effect. He had, however, arrived at the conclusion that it was not desirable to make adultery a, misdemeanour, for on many accounts it would be extremely difficult, if not impracticable, to carry out such an enactment. It would, for instance, be necessary to make exceptions where the adulterer was not aware that the woman was married, for in many cases traps might be laid, and a man might find himself accused of a crime which he had no idea of committing, or of having committed any crime cognizable by the law. Again, it was obvious that a very easy mode of extorting money by collusion would thus be afforded, and he thought the evil likely to result from such a change of the law would counterbalance its advantages. The two objects which they should endeavour to accomplish were, first, to render the commission of adultery less frequent; and, secondly, to take care that, when proceedings were adopted for obtaining a divorce à vinculo matrimonii, there should be a bonâ fide resisting party, and that no collusion should take place. He now proposed a clause with the view of carrying out those objects. What he suggested was that any person seeking to obtain a divorce à vinculo matrimonii should not be at liberty, as he now was, to proceed against the wife alone, unless the 1410 court should declare that there were special reasons for sanctioning such a course; and also a fortiori that he should not be enabled to proceed against the adulterer alone in the absence of his wife, so as to fix adultery on her in her absence; but that in every case when the husband sought a divorce à vinculo matrimonii on the ground of adultery, he should present a petition to the court praying that both parties should be made respondents or defendants in the case. Both the parties, the alleged adulterer and the wife, would thus be before the court, and the action would be bonâ fide resisted. As to the punishment, he should propose that the Court should have the power to impose a fine upon the paramour, and that fine, with the view of indicating that it was not in-tended to be merely a nominal one, he should propose to limit to an amount not exceeding £10,000. The amount had been objected to as being excessive, but it was only intended to indicate that it should not be a merely nominal fine. He, therefore, now proposed the insertion of a clause, to the effect that in actions for adultery both the wife and the adulterer should be made parties to it; and that a decree of divorce against the wife should also be a decree condemnatory of the adulterer, and subjecting him to such a fine as the Court in its discretion might impose. He believed that such a course would be the most practicable, and one most likely to prevent the commission of the offence, because it would not only have the effect of exposing the conduct of the parties and inflicting a heavy fine upon the paramour, but every one charged would have proper notice of the action and an opportunity of defending themselves. The noble and learned Lord then proposed his clause, as follows—
Upon any such Petition presented by a husband the Petitioner shall make the alleged Adulterer a co-respondent to the said Petition, unless on special grounds, to be allowed by the Court, he shall be excused from so doing, and the Respondents, or either of them may insist on having the alleged adultery tried by a jury as hereinafter mentioned.
LORD BROUGHAMsaid, he entirely approved of the plan proposed by his noble and learned Friend. They were all agreed in condemning the action for criminal conversation, but the difficulty was how to prevent the adulterer and the adultress from going free. Many years ago Pitt, Fox, and Grenville, and others who edified and adorned the two Houses of Parliament, 1411 expressed it is their opinion that the action for criminal conversation ought to be abolished, and that a substitute for it ought to be provided by making adultery an offence liable to be visited with punishment. Of the same opinion was that renowned advocate and splendid orator—the chief of the legal profession in his day—Erskine, many of whose immortal laurels were gained in connexion with actions for criminal conversation; and in that opinion Lord Eldon entirely concurred. He had before alluded to the injustice and hardship inflicted upon women by that action; and of these he would now give their Lordships one example. He held in his hand five letters from the alleged, the falsely alleged, paramour of the injured lady to whom they referred, and he would answer for it that the reading of those letters by two, or thee, or more, of their Lordships, would at once convince them that the charge against that lady of having had an amour with his late lamented friend Lord Melbourne, was absolutely and necessarily impossible to be true. He had read them, and they had produced the most absolute conviction in his mind that the thing was utterly and entirely untrue. Yet an action was brought behind the back of that lady, without necessarily any notice, and but for the verdict of the jury, obtained through the exertions of his noble and learned Friend (Lord Campbell), the character of that lady would have been ruined for life, she being as entirely and absolutely guiltless as any human being in the three kingdoms. As regarded the punishment of an adulterer, he preferred the infliction of a fine to an indictment for misdemeanour, his reason for so doing being the difficulties which beset all attempts to detect conspiracy in such cases. One example occurred to him at that moment. A merchant's clerk in the city went home with a woman whom he supposed to be following her professional avocation; it afterwards turned out that she was married; an action was brought, and on proof being given of the fact of marriage, damages were awarded to the amount of £1,500. It was almost impossible to provide any absolute safeguard against conspiracy and collusion.
§ EARL GREYsaid, that although he thought that the clause now proposed was a great improvement on the original proposition, still he was of opinion that the imposition of a fine would operate very unequally upon the wealthy and the poorer 1412 classes of persons. He should be glad to see imprisonment enacted as well as a fine, and if no other noble Lord undertook the task, he should himself propose a clause to that effect. From the first he (Earl Grey) had entertained grave doubts of the propriety of legalizing divorces à vinculo matrimonii at all; he trusted therefore that the present measure would be regarded only in the light of an experiment, and that, if found to lead to an increased laxity of morals, the Legislature should return to what had always been the theory, though not the practical law of the country—namely, rendering the marriage tie indissoluble except by the death of one of the parties.
LORD CAMPBELLsaid, he had always thought the action for crim. con. a disgrace to English jurisprudence, and he entirely approved of the proposals of his noble and learned Friend in the clause under discussion. With regard to the suggestions for making the offence a misdemeanour, he could not give it his support, as it would enable any man to prosecute in those cases. The fine would be in all cases proportioned to the means of the adulterer, and would therefore press equally upon the rich and the poor, He would, however, have preferred his noble and learned Friend leaving the amount of the fine quite open to the discretion of the presiding Judge.
THE BISHOP OF OXFORDsaid, that while he entirely agreed with the noble and learned Lord as to the inexpediency of granting additional facilities for obtaining divorce, he thought that the punishment of imprisonment should be added to the money fine, because a fine in the case of a rich man was next to no punishment, and in the case of a man of moderate means it would operate as a very heavy punishment. Imprisonment, on the other hand, savoured of disgrace, which a money fine did not; indeed, he could imagine the latter punishment being regarded in certain vitiated states of society rather as an honour than as a disgrace. The proper course would be to render adultery a disgraceful crime against society, and to punish it as such. If the House agreed to the present clause he would move, upon the reading of the 25th clause, the insertion of a clause to enable the Court to impose imprisonment as well as fine, and also to give power to apply any part or the whole of the fine to pay the costs of the proceedings.
§ Clause agreed to.
1413§ THE EARL OF MALMESBURYsaid, he wished to propose an Amendment to this clause, to the effect that a party who had once been a defendant in a suit in the court of divorce should afterwards be allowed to become a prosecutor in the event of having contracted another marriage. The object was to avoid the scandal that often took place on the Continent.
THE LORD CHANCELLORcould not assent to any such Amendment. If a divorce à vinculo was allowed at all, the effect ought to be to place the parties in a position of perfect freedom, as if no marriage had ever been contracted. As to scandals to which the noble Earl had referred, he did not think they were likely to occur in this country. For many years the law of divorce had been in practical operation, and no such case had ever occurred.
§ Clause agreed to.
§ Clauses 22 to 25 agreed to.
§
THE LORD CHANCELLOR moved to insert a clause:—
Whenever in any such petition presented by a husband the alleged adulterer shall have been made a co-respondent, and the adultery shall have been established against him, the Court shall impose on him a fine of such amount as it may deem just, not exceeding ten thousand pounds, and may also order him to pay all or any part of the costs of the said proceedings.
THE BISHOP OF OXFORDproposed, as an Amendment to the proposed clause, to insert after the word "established"—
it shall be lawful for the Court to pass upon the guilty parties, or either of them, sentence of fine and imprisonment, or fine or imprisonment, as if they had been convicted of a misdemeanour at common law, and it shall be lawful for the Court to order the whole or any part of such fine to be applied in payment of the costs of the proceedings.
THE LORD CHANCELLORthought it would be better to limit the punishment to fine, as this was the first time that such a principle had been introduced into the law.
VISCOUNT DUNGANNONsupported the Amendment, as a fine only would be of very little effect in the case of wealthy persons.
LORD CAMPBELLthought it would be to better to keep by the fine alone. In some cases a husband might feel reluctance and even horror at taking a course which might send his wife, even though guilty, to prison.
§ THE DUKE OF NORFOLKobserved, that in some cases a heavy fine would fall as a punishment upon the children.
THE BISHOP OF OXFORDreminded their Lordships that imprisonment was not rendered imperative by his Amendment. It might be inflicted in extreme cases, but these would be very rare.
THE LORD CHANCELLORcould imagine nothing more revolting to the mind of a man whose wife had been unfaithful to him than the reflection that he could not obtain a divorce without subjecting her to imprisonment.
LORD BROUGHAMobjected to the Amendment, which gave a Court power to inflict a heavy punishment of imprisonment without the intervention of a jury. No doubt the sole action of a Court was sometimes useful, as in cases of insolvency or bankruptcy, but it was not the same in respect of criminal proceedings.
THE BISHOP OF OXFORDobserved that, by a new clause which would be proposed, there would be a trial before a jury.
§ EARL GREYsaid, as they were about for the first time to make divorce a part of the law of the land it was necessary to guard that change by every possible precaution. A pecuniary fine might be sufficient in some cases, but there were others in which it would be totally inadequate. There were special cases in which justice could only be done by punishing the guilty parties by imprisonment. In cases where a designing woman had entrapped a man into adultery with the desire of being detected, a fine would be of little use. Such cases might be rare, but that they did sometimes occur was a matter of history.
§ On Question, Whether the said words be there inserted? their Lordships divided:—Contents 43; Not-Contents 33: Majority 10.
§ Amendment made; Clause, as amended, agreed to.
| CONTENTS. | |
| Centerbury, Archbp. | Shaftesbury, E. |
| Stanhope, E. | |
| Norfolk, D. | Dungannon, V. |
| Gordon, V. (E. Aberdeen.) | |
| Westmeath, M. | |
| Hutchinson, V. (E. Donoughmore.) | |
| Airlie, E. | |
| Amherst, E. | Lifford, V. |
| Bantry, E. | |
| Chichester, E. | Bangor, Bp. |
| Cowper, E. | Durham, Bp, |
| Derby, E. | Kilmore, &c., Bp. |
| Grey, E. | Lincoln, Bp. |
| Mayo, E. | Llandaff, Bp. |
| Nelson, E. [Teller.] | London, Bp. |
| Romney, E. | Oxford, Bp. |
| St. Asaph, Bp. | Lovat, L. |
| St. David's, Bp. | Lyndhurst, L. |
| Lyttelton, L. | |
| Calthorpe, L. | Petre, L. |
| Congleton, L. | Redesdale, L. |
| DeMauley, L. | Sheffield, L. (E. Sheffield.) |
| Denman, L. | |
| De Ros, L. | Stafford, L. |
| Granard, L. (E. Granard.) | Vaux of Harrowden, L. |
| NOT-CONTENTS. | |
| Cranworth, L. (L. Chancellar.) | Cloncurry, L. |
| Colville of Culross, L. | |
| De Tabley, L. | |
| Wellington, D. | Foley, L. [Teller.] |
| Leigh, L. | |
| Lansdowne, M. | Lovel and Holland, L. (E. Egmont.) |
| Clarendon, E. | Manners, L. |
| Granville, E. | Mostyn, L. |
| Harrington, E. | Panmure, L. |
| Harrowby, E. | Rivers, L. |
| Malmesbury, E. | Rossic, L. (L.Kinnaird) [Teller.] |
| Minto, E. | |
| Morley, E. | Somerhill, L. (M. Clanricarde.) |
| Orkney, E. | |
| Portsmouth, E, | Stanley of Alderley, L. |
| Seafield, E. | Sundridge, L. (D. Argyll.) |
| Belper, L. | Talbot de Malahidc, L. |
| Brougham and Vaux, L. | Truro, L. |
| Campbell, L. | Wensleydale, L. |
§ Clauses 20 to 44 agreed to.
§ Upon Clause 45, prohibiting persons divorced after being proved guilty of adultery from marrying again,
§ THE LORD CHANCELLOR moved the omission of certain words, and the insertion of others, with the view of restoring the clause to the state in which it stood previous to the Amendment moved by the Archbishop of Canterbury when the Bill was last in Committee, prohibiting the re-marriage of the guilty party. That Amendment was made by the most rev. Prelate, and was carried on a division by a small majority. Without saying what was the proper interpretation of the scriptural texts on the subject, he would admit that they ought to legislate on it in the spirit of those texts, and with the view to promote public morality and public policy. He could conceive nothing more scandalous in point of public morality than by Act of Parliament to place the woman, and in some cases the man, in a position in which they must remain single, and in the case of the woman, to force her, necessarily in some instances, into a state of prostitution. It was gross injustice to leave the adulterer at liberty to re-marry, and to restrain the woman who had been 1416 divorced in consequence of his licentiousness from the same liberty. He thought there ought to be no restriction, and that the woman in such cases ought to be at liberty to marry the adulterer or any one else. The noble and learned Lord then moved to omit ("Party on whose petition the marriage shall have been dissolved") and insert ("respective parties thereto").
THE ARCHBISHOP OF CANTERBURY,who was very imperfectly heard, was understood to say, that both upon Scriptural grounds and for reasons of public morality he did not think that guilty persons ought to be permitted to marry again. He would, therefore, oppose the Amendment.
THE DUKE OF ARGYLLstated that several noble Lords had voted for the introduction of the words proposed by the Archbishop of Canterbury upon the supposition that they amounted merely to a prohibition of marriage between paramours. He could not believe that a majority of their Lordships would wish to condemn a person guilty of adultery to perpetual celibacy, or, probably, to a life of immorality. It was not improbable that some so-called Amendments had been proposed with a view to the rejection of the Bill elsewhere.
§ THE EARL OF DERBYsaid, the Amendment of the most rev. Prelate (the Archbishop of Canterbury), which it was now proposed to expunge, did not condemn the guilty party to perpetual celibacy. It provided that the husband or wife guilty of adultery should not marry while the husband or wife who had obtained a divorce continued to live. If that provision were removed they would have the anomaly of a person divorced à vinculo being in a better position than a person divorced à mensâ ct thoro, because the latter could not, but the former could, marry in the lifetime of the person from whom they were divorced.
§ EARL GREYexplained that on the former evening he voted for the Amendment, because he did not wish to see divorce à vineulo given without some safeguard; but he thought it ill fulfilled that purpose, and, as they had now made adultery liable to punishment, not only by fine but by imprisonment, he should vote for the Amendment now proposed—that was, to strike out the prohibition.
THE BISHOP OF OXFORDsaid, the object of their Lordships should be to surround the innocent with the greatest number of guards, rather than to leave the guilty exposed to the possible inconvenience of marrying their paramours. That was most eminently the character of the proposition of the most reverend Prelate. All experience showed that the purity of civilized society depended more upon the absolute chastity of the woman rather than the principle of the man. The temptation I to sin assailed the man and the woman on two opposite sides of their character. In the man the great temptation was the gratification of appetite; but it was not so in the woman. The late Mr. Coleridge, in one of his admirable essays on the relation between the two sexes, expressed the idea so forcibly that he would quote the words—"The desire of the man is for the woman; the desire of the woman is for the desire of the man." That was to say, that the woman was led astray, not by the direct temptation of sensual appetite, but by the proffer of affection—by the promise that what in early life she trusted to be to her husband, but had failed in being—namely, the object of attachment and affection—she would be to the tempter. Those married women who had fallen from the direct temptation of appetite were very rare exceptions, and in ninety-nine cases out of 100 they fell, because their marriage had been unhappy in its consequences. To say, therefore, that the woman should not marry for the natural lifetime of the husband she dishonoured, was to take away from the tempter a prevailing bait and to give an additional safeguard to her remaining innocent. Let their Lordships remember what the proviso was, that was embodied in the clause at the instance of the most rev. Prelate. It was not in any sense put in as a penalty upon either party that they should be prohibited from marrying, longer than they would have been prohibited from marrying another, if they had not sinned. The innocent party was allowed under the clause to marry again; and was it an extreme punishment to say to the guilty person that he or she should not marry again during the lifetime of the party from whom he or she was divorced? It seemed to him monstrous to represent that as an outrageous violation of liberty.
§ After a few words from Lord DE ROS,
VISCOUNT DUNGANNONfelt himself at liberty, now that adultery was to be 1418 punished by fine and imprisonment, to vote for the proposal of the noble and learned Lord, and against the Amendment made the other night in the Bill, on the Motion of the most rev. Prelate.
§ On Question, "That the words proposed to be left out stand part of the Bill?"
§ Their Lordships divided:—Contents 24, Not-Contents 46: Majority 22.
| CONTENTS | |
| Canterbury, Archbp. | Bangor, Bp. |
| Durham, Bp. | |
| Norfolk, D. | Lincoln, Bp. |
| Llandaff, Bp. | |
| Amherst, E. | Oxford, Bp. |
| Derby, E. | St. Asaph, Bp. |
| Mayo, E. | St. David's. Bp. |
| Nelson, E. [Teller] | |
| Romney, E. | Calthorpe, L. |
| Colville of Culross, L. [Teller.] | |
| Gordon, V. (E. aberdeen.) | Lovat, L. |
| Hutchinson, V. (E. Dononghmore. | Lyttelton, L. |
| Lifford, V. | Redesdale, L. |
| Stafford, L. |
| NOT-CONTENTS | |
| Cranworth, L. (L. Chancellor.) | Campbell, L. |
| Cloncurry, L.) | |
| Congleton, L. | |
| Cleveland, D. | Dc Mauley, L. |
| Wellington, D. | Denman, L. |
| De Ros, L. | |
| Cholmondeley, M. | De Tabley, L. |
| Lansdowne, M. | Foley, L. [Teller.] |
| Westmeath, M. | Granard, L. (E. Granard.) |
| Airlie, E. | Leigh, L. |
| Chichester, E. | Lovel and Holland, L. (E. Egmont.) |
| Cowper, E. | |
| Granville, E. | Lyndhurst, L. |
| Grey, E. | Manners, L. |
| Harrington, E. | Meldrum, L. (M. Huntly.) |
| Harrowby, E. | Panmure, L. |
| Minto, E. | Ponsonby, E. (E. Bessborough.) |
| Morloy, E. | |
| Munster, E. | Rivers, L. |
| Portsmouth, E. | Rossie, L. (L. Kinnaird.) [Teller] |
| Seafield, E. | |
| Stanhope, E. | Somerhill, L. (M. Clanricarde) |
| Dungannon, V. | Stanley of Alderley, L. |
| Kilmore, &c., Bp. | Sundridge, L. (Argyll.) |
| London, Bp. | |
| Talbot de Malahide, L. | |
| Belper, L. | Truro, L. |
§ LORD WENSLEYDALEthen moved an Amendment, to add to the clause the following proviso:—
Provided that the other party shall not marry the person with whom the adultery is proved to have been committed, and the Court in its decree for a divorce is to name that person
§ THE MARQUESS OF LANSDOWNEcould 1419 not assent to the Amendment, which he thought would not tend practically to promote the interests of religion and morality. He believed that in cases of this description women were generally led into error by passion, and those who had lived long in the world were aware of the feeling with which women who had so erred were regarded by their own sex. Even if women who had thus fallen remarried, they were still in a position of great degradation, and it was difficult to estimate the punishment they suffered. The object of legislation should be to provide for the reformation of offenders after they had suffered punishment for their crimes; but he believed the effect of this Amendment, by depriving a woman of the opportunity of marrying her partner in sin, would be to degrade her utterly, and to drive her to a course of prostitution. When they dealt with a burglar or a perjurer, they always supposed that he might, by repentance, be qualified to resume, in some measure, that position in society which he had occupied before he became a criminal; and were they in the case of a woman alone to refuse the opportunity of reformation, although experience had shown that women who had violated the marriage vow had subsequently become faithful wives and good mothers, and had shown themselves deserving of that limited respect which could be gained by persons under such circumstances? He agreed with a great legal authority who had said that cases of this description ought to be dealt with according to the particular circumstances of each case, and he considered that the discretion ought to be left to the Court. This Amendment, however, if it should be adopted, would deprive the Court of any discretionary power.
THE BISHOP OF OXFORD,in supporting the Amendment, observed, that it was unnecessary to repeat the arguments he had urged on a former occasion, but he might remind their Lordships that they were not legislating simply for one class, but for all classes of the community, and that they ought to consider the effect which might be produced by their legislation upon what were called the lowest orders of society. Unless they agreed to this proviso, they offered great inducements to crime, with the view of dissolving the marriage tie. The noble Marquess was wrong, in thinking that the first object of legislation was the reformation of the 1420 offender: it was the prevention of crime. It was said that they should not impose too stringent restrictions in the first instance, because, if it were found necessary, the law might subsequently he rendered more severe; but all experience showed that it was much easier to relax a law than to increase its stringency.
§ On Question, Whether the said words shall be there inserted?
§ Their Lordships divided;—Contents 28; Not-Contents 37: Majority 9.
| CONTENTS | |
| Canterbury, Abp. | Bangor, Bp. |
| Durham, Bp. | |
| Norfolk, D. | Lincoln, Bp. |
| Llandaff, Bp. | |
| Amherst, E. | Oxford, Bp. |
| Chichester, E. | St. Asaph, Bp. |
| Derby, E. | St. David's, Bp. |
| Mayo, E. | |
| Nelson, E. [Teller.] | Campbell, L. |
| Romney, E. | Colville of Culross, L. |
| Congleton, L. | |
| Dungannon, V. | Lovat, L. |
| Gordon, V. (E. Aberdeen) | Lyttelton, L. |
| Petre, L. | |
| Hutchinson, V. (E. Donougmore.) | Redesdale, L. |
| Stafford, L. | |
| Lifford, V. | Wensleydale, L. [Teller.] |
| NOT-CONTENTS. | |
| Cranworth, L. (L. Chancellor.) | Belper, L. |
| Cloncurry, L. | |
| De Mauley, L. | |
| Cleveland, D. | Denman, L. |
| Wellington, D. | De Ros, L. |
| De Tabley, L. | |
| Lansdowne, M. | Foley, L. (Teller.) |
| Westmeath, M, | Granard, L. (E. Granard.) |
| Cowper, E. | Leigh, L, |
| Granville, E. | Lovel and Holland, L. (E. Egmont.) |
| Grey, E. | |
| Harrington, E, | Lyndhurst, L. |
| Harrowby, E. | Manners, L. |
| Minto, E. | Meldrum, L. (M. Huntly.) |
| Morley, E. | Panmure, L. |
| Munster, E. | Ponsonby, L. (E. Bessbourough.) |
| Portsmouth, E, | |
| Seafield, E. | Rivers, L. |
| Stanhope, E. | Roossie, L. (L. Kinnaird.) (Teller.) |
| Kilmore, &c., Bp. | Talbot de Malahide, L. |
| London, Bp. | Truro, L. |
§ Clause agreed to.
§ Remaining clauses agreed to.
§ Report of the Amendments to be received on Friday next.
§ House adjourned at a quarter past Nine o'clock, to Thursday next, half past Ten o'clock.