§ Against the Rejection of the Amendment to the 25th Clause.
§ DISSENTIENT—1. "Because the effect of rejecting this Amendment will be to confine the dissolution of marriage upon the adultery of the husband to the four cases stated in the Bill, which we consider to be not only inexpedient, but, as contrasted with the relief upon the adultery of the wife, partial and unjust.
§ 2. "Because, as the clause is framed, although the husband should be living in the most open and notorious adultery, and should even bring his mistress into the family residence, insulting the wife by her presence, and should endeavour by ill usage to compel her to submit to this disgrace, such a case would not come within its provisions.
§ 3. "Because the adultery of the husband, accompanied with the commission of the greatest crimes, and even the most infamous vices, would not entitle the wife to relief under this clause.
§ 4. "Because the adultery of the husband, although coupled with his condemnation to penal servitude, even for life, and the consequent degradation and misery of the wife, would not, under the provisions of this Bill, enable her to obtain a dissolution of the marriage.
§ 5. "Because many other cases of similar injustice and hardship are excluded from relief under this clause.
§ 6. "Because to allow a divorce for the adultery of the wife, and to refuse it in these and other cases of adultery by the husband, coupled with acts of deep injury inflicted upon the wife, is manifestly unjust.
§ 7. "Because, although the adultery of the wife may lead to the imposing a spurious offspring on the husband, and entitle him to a divorce for a reason which would not apply to the case of adultery by the husband, other circumstances may, and frequently do, occur in connection with the adultery of the husband, giving the wife an equal claim to this remedy.
§ 8. "Because no distinction is made in Scripture between the case of the man and of the woman in the commission of adultery. The sin is the same in both—both are included under the same prohibition.
§ 9. "Because the whole tendency and spirit of 230 the Christian religion is manifestly calculated to raise women to equal rights and equal responsibilities with men. 'It has,' in the words of an eminent writer on general law (Chief Justice Story) 'elevated woman to the rank and dignity of an equal, instead of being an humble companion, or a devoted slave of her husband;" and accordingly we find that as Christianity extended itself, and its influence was brought to bear upon social and civil affairs, so the condition of woman was improved, and her rights to protection and redress were acknowledged. With respect to marriage and divorce the rule of the Roman Catholic Church applies to both sexes equally, while all Protestant Legislatures (except our own), in declaring that marriage may be dissolved for the cause of adultery, have accorded to the wife the same rights and remedies as to the husband.
§ 10. "Because by our ecclesiastical law (the only law at present applicable to this subject), the same judgment is pronounced in the case of adultery, whether the crime be committed by the husband or wife. And there appears to us no reason why, in extending the remedy, the principle should be changed.
§ 11. "Because as to the objection that the extension of the law to cases of adultery by the husband will give occasion to a great number of suits for divorce, we think such apprehension is altogether groundless. The proceedings can originate only with the wife, and she has, both as to feeling and interest, so much at stake, so much to relinquish which must be most dear to her, that we think there is little fear of her resorting to this remedy, except in extreme cases, and after all hope of amendment has ceased.
§ 12. "Because by the law of Scotland the adultery of the husband with respect to divorce is placed on the same footing with the adultery of the wife. This law is found to be attended with no inconvenience. The evidence on the subject is above all exception, and we deem it most desirable that laws which so deeply affect the social and moral condition of the people should, in contiguous parts of the same empire, be in accordance with each other.
| "HUTCHINSON. | |
| "HARRINGTON. | |
| "LYNDHURST. | |
| "TALBOT DE MALAHIDE. | |
| "BELMORE." |
§ Against the rejection of the Amendment to omit the 55th clause.
§ DISSENTIENT—1. "Because the abolition of the action for criminal conversation would cause a great anomaly in the law of England, which has hitherto been perfect in one respect at least, as it provides a remedy for an injury to every legal right. If a man has his estate taken from him wrongfully, he may be restored to the possession of it; if a specific chattel he may recover it in specie, by a recent improvement in law rendering that remedy more effective; he may in some cases compel a specific performance of a contract; but in all others the law gives a compensation in money only, for it is impossible in the nature of things to give any other.
§ 2. "Because to deny this the only possible remedy for the grievous injury to a husband by the loss of the right to the society and assistance of his wife in his domestic affairs and the education 231 of his children—on the ground that it is irreparable; would be most unjust—and the other reason assigned, that it would be disgraceful in the husband to receive the price for his own and his wife's dishonour, is a misapplication of terms, as it treats the sum recovered by law as if it had been the subject of a bargain with the adulterer.
§ 3. "Because the same inaccurate reasoning would apply to many other injuries of a similar nature incapable of pecuniary estimate, actions for atrocious libels, for infamous slanders, for assaults attended with contumely and insult, and for the seduction of a daughter, all of which are capable of the same opprobrious designation of disgraceful bargains with the wrong-doer.
§ 4. "Because the reason assigned that sometimes the wife maybe totally ignorant of the charge made by the husband against the adulterer, and it would be unjust that she should have no opportunity of vindicating herself, is insufficient, because such a case is scarcely possible, and laws are to be made for matters of frequent not rare occurrence, and the remedy, if one should be required, would be not to deprive the husband of all remedy for his violated right, but to provide that he should give notice to the wife, and that she should be at liberty to intervene for her own interest.
§ 5. "Because the husband has almost always interests of a material nature and capable of pecuniary estimate that are injured by the adultery. In the higher classes of life, a wife may have a sum settled to her separate use, the benefit of which the husband would in part enjoy—in the lower, the earnings of the wife in an art or trade may contribute to the maintenance of the husband and his family. In almost all the wife has duties to perform in superintending the household and educating the children, which have analogy to those of a servant, and in the lower classes closely resemble them. All these are properly the subject of pecuniary compensation, and yet the husband is to be deprived of it altogether, and that for the benefit of the adulterer.
§ 6. "Because the maintenance of this action tends to the repression of adultery, the repeal of it to its increase.
§ "WENSLEYDALE."
§ As to 55th Clause.
§ DISSENTIENT.—1. "Because many noble Lords supported the fifty-fifth Clause of the Bill, solely on account of a power of imprisonment (not imperatively but discretionally to be acted on)—being contained in some part of the Bill.
§ 2. "Because a Jury is more likely to obtain the confidence of suitors (who may possibly not even wish for a divorce), than the Judges of the newly constituted court.
§ 3. "Because by an Amendment of the practice of the courts of common law counsel may be heard in support of the fair fame aad interest of wives accused of adultery.
§ 4. "Because the vexatious Suits Act (if passed into a law) will tend more than ever has hereto fore been practicable, to prevent frivolous charges from being brought forward.
§ 5. "Because the action for criminal conversation is strictly analogous to the action for loss of services in actions on the case for seduction.
§ 6. "Because in all actions for assault, Her Majesty's subjects can proceed both civilly and 232 criminally in all cases whether of a common or of an aggravated nature, and ought to have equal rights under this Bill.
§ "DENMAN."
§ Against the Third Reading.
§ DISSENTIENT.—"Because the Bill authorizes the intermarriage of the adulterous parties, but does not relieve the clergy from the legal obligation of celebrating matrimony in such cases with the office of the church. Yet that office expressly declares that holy matrimony, instituted by God in the time of man's innocency, signifies the mystical union between Christ and His church, whereas adultery is constantly spoken of in holy Scripture, as symbolizing apostacy from that church and the violation of that blessed union. In contempt of this sacred truth the Bill not only sanctions the marriage of parties whose ability to marry is founded altogether on their being adulterers, but it also compels the clergy to marry them in profanation of the most sacred words of Scripture, and with perversion of the most solemn truths of the Gospel. For, even if the use of the office could be tolerated in the marriage of adulterous parties who are repentant of their adultery, yet no security is given or can be given by any statute that the parties concerned are really penitent; and yet those parties have by their adultery incurred the church sentence of excommunication, which, if duly pronounced, would render them incapable of being married with the rites of the church. If the circumstances of the times prevent the due exercise of the church's discipline, yet the least that might be expected from a Christian Legislature is, that it be careful to protect the State from the guilt of countenancing such fearful profaneness and to respect the conscientious feelings of all faithful churchmen, who cannot but be shocked by such wanton trifling with the gravest spiritual matters; and especially of the clergy, who, if the Bill shall finally pass, will not be able to perform what belongs to their office without violating their sense of duty to God, and cannot refuse to perform it without incurring the heavy penalties of human law. The enactment is the more grievous because there already exists a mode of contracting matrimony between such parties, which not only leaves the rights and sanctions of the church unviolated, but would also relieve the parties themselves, if truly penitent and sensible of their own degradation, from the anguish and misery which they must feel in repeating vows to God which they have already broken, and hearing pronounced over them the curse of God against all who have, as they already have, 'put asunder those whom God has joined together.'
§ "H. EXETER."
§ DISSENTIENT:—1. "Because the contract of marriage is the most solemn engagement into which a man can enter, and in which he promises to love, comfort, and honour the woman, and keep her under all circumstances of sickness or of health, and adhere to her as long as they shall both live.
§ 2. "Because the purposes of this engagement, as deduced from Scripture, are of the deepest interest and importance—namely, for the birth of children to be brought up in the love and fear of God, for a remedy against sin, and for mutual 233 society, help, and comfort, both in prosperity and adversity.
§ 3. "Because by wilful desertion not only is this sacred promise impiously violated, but all the purposes for which this ordinance of God was instituted are wholly frustrated. Even in the most ordinary contract, the breach of it on the one side puts an end to the obligation on the other, and we see no reason why a different rule should be applied to the contract of marriage, and more especially in a case destructive of the entire objects of the union. It appears to us to be contrary to all principle, and most unjust, that the husband should be permitted to set at nought an engagement followed, as it must be, by such, consequences, and that the woman should continue to be bound by it.
§ 4. "Because we feel strongly the extreme cruelty of such conduct towards the deserted wife, in the utter disappointment of all her confident expectations of happiness from the promised love, comfort, and society of her husband, and leaving her without hope to the contemplation of a long, dreary, and desolate future.
§ 5. "Because divorce from this cause is justified as Scriptural by the highest ecclesiastical authorities. It is well known that at the Reformation the subject was anxiously and carefully considered by prelates and divines eminent for learning and piety, and that they came to the conclusion that wilful desertion was a scriptural ground for divorce. We find the names of Archbishop Cranmer, of the Bishops of London, Winchester, Ely, Exeter, and others; of Latimer, Parker, &c.; of Peter Martyr, Martin Bucer, Beza, Luther, Melancthon, Calvin, &c., among those who maintained this opinion, and which was adopted by the whole body of Protestants on the continent of Europe. Accordingly, this has been the acknowledged doctrine of all their churches to the present day. We find the same doctrine expressly stated and adopted in the 8th Article on Divorce in the Reformatio Legum Ecclesiasticarum, compiled under the authority of Henry VIII. and Edward VI., which body of laws, although it did not receive the confirmation of the Crown, in consequence of the early and unexpected death of King Edward, has always, as the Commissioners on the Law of Divorce, in their Report, justly observe, been considered of great authority. We also find that at a, more recent period a right rev. Prelate, eminent for learning and talents (Cozens, Bishop of Durham), in his celebrated argument delivered in this House, in the case of Lord Roos, maintained the same opinion. His words are these:— The promise of constancy in the marriage ceremony does not extend to tolerating adultery or malicious desertion, which dissolve the marriage.'
§ 6. "Because, by the law of Scotland, wilful desertion, as in all the Protestant churches on the Continent, is considered to be a scriptural ground for divorce, and the law in this respect is regarded by all the first authorities in that country, not only to be free from inconvenience, but as just and highly beneficial. We further deem it to be most desirable, that upon such a subject as marriage and divorce, affecting as it does the whole social system, the same law should, as far as practicable, prevail in both parts of the kingdom, and the more so as continued experience has shown the great inconvenience occasioned by the difference and anomalies of the two systems.
234§ 7. "Because, as to the objections to the proposed extension of this measure on the ground of its tendency to demoralize society, this is not only disproved by the example of Scotland, but a careful examination of the state of society in Roman Catholic countries will, we think, lead to the conclusion that the principle of the indissolubility of marriage is far less favourable to morality than the opposite doctrine, accompanied with a cautious exercise of the power of divorce in suck extreme cases as those of adultery and malicious desertion.
§ 8. "Because, as to what is urged with reference to the law of our Ecclesiastical Courts, we answer that the object of the present Bill throughout is to amend that law, and to render it more consistent with reason and justice; and, with respect to the Church of England, we will merely repeat what we find stated in the argument of the learned Prelate to which we have already referred—namely, that 'We cannot see why they are to be styled the Church of England who join with the Council of Trent, rather than those who join with all the reformed churches, and plead against the canon of the Church of Rome, which hath laid an anathema upon us if we do not agree with them.
§ "LYNDHURST.
§ HUTCHINSON."
§ DISSENTIENT—1. "Because the Bill contains provisions authorizing in certain cases divorce à vinculo matrimonii of Christian marriage, and is thus in direct opposition to what our Lord has declared both in His own words and in the unvarying teaching of His Church.'
§ 2. "Because the harmony and stability of the family relations, upon which the well-being of the State is ultimately based, will be unsettled and impaired by the facilities which are offered for divorce.
| "NORFOLK (E. M.) | |
| PETRE, | |
| STAFFORD, | |
| VAUX OF HARROWDEN, | |
| ARUNDELL OF WARDOUR, | |
| LOVAT." |
§ DISSENTIENT—1. "Because, in opposition to the Word of God, which is embodied in the law of our Church, the Bill sanctions the remarriage of a divorced husband or wife during the lifetime of the divorced wife or husband.
§ 2. "Because, in direct contradiction to the plain teaching of our Saviour Christ, the divorced adultress is permitted to remarry during the lifetime of her husband.
§ 3. "Because the Court of Divorce provided by the Bill will, as a general rule, be accessible only to the rich, and thus what is treated in the Bill as the right of every injured husband is by it withheld from the poor, and such legislation will almost inevitably lead to committing the decision of causes involving the sentence of divorce à vinculo matrimonii to many and inferior local courts, and so to the risk of the wide spread of collusive adultery.
§ 4. "Because the permission of intermarriage, as granted in the Bill to the parties through whose adultery the divorce has been caused, tends to promote a dissolution of manners throughout that large class of society in which no conventional law severely punishes the divorced woman.
235§ 5. "Because the whole tendency of the Bill is to dissolve the sanctions and endanger the purity of God's great institution of family life throughout this land.
§ 6. "Because it will lead to the clergy of the Church of England being required to pronounce the blessing of Almighty God on unions condemned by their Church, and repugnant, as many of them believe, to the direct letter of Holy Writ, and to employ at unions founded on dissolved marriages, from the marriage service of the Church of England, language which is in its plain sense inconsistent with the dissolubilty of marriage.
| "For 1st, 2nd, 3rd, and 6th Reasons, | "S. OXON, |
| LEEDS, | |
| W. K. SARUM, | |
| NELSON, | |
| REDESDALE, | |
| DESART, | |
| "For 3rd, 4th, 6th, and 6th Reasons, | DUNGANNON." |