SECOND READING.

HL Deb 19 May 1857 vol 145 cc483-538

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR

rose to move the Second Reading of this Bill. which involved questions of the deepest possible interest to society in general. Their Lordships would recollect that last year a Bill on the same subject—and which was very nearly similar to the present one—passed that House, but at a period of the Session too late to allow of its being passed in the other House of Parliament. In consequence of that failure he introduced during the short Session which took place in the early part of the present year a Bill founded upon the same principles, but differing somewhat in detail from the measure to which he now invited the attention of their Lordships. The progress of that Bill, however, like that of many others, was necessarily arrested by the dissolution; and it now, therefore, became his duty to invite their Lordships again to the consideration of this most important subject. He could assure their Lordships that nothing would induce him to submit a Bill which he believed would have the slightest tendency to shake the confidence of the country in the permanency, if not the absolute indissolubility, of the marriage tie. He believed that the fact of that tie being absolutely binding through life, except in very extreme cases, was the foundation of some of the best interests of society. Those who had paid attention to this subject would be aware of what had been the course of feeling, if he might so express himself, and the course of law and habit upon the question of divorce. Before the Reformation, when the Roman Catholic religion prevailed in this country as in the rest of Europe, marriage was considered as being absolutely indissoluble; it was regarded as a sacrament of the Church— an union so sanctioned by the highest authority of the Church as to be incapable of being touched or affected by any human tribunal. That state of things, though founded in some respects upon good sense—namely, upon the great importance of considering marriage indissoluble except in extreme cases—led to inconveniences of a very distressing character; the theory being pushed to the extremest length; the consequence was that, the absolute indissolubility of marriage being incompatible with the general feelings of society, a number of the most extraordinary devices, ridiculous in the extent to which they were carried, were hit upon in order to get out of the difficulty. Although it was a tenet of the Roman Catholic Church that marriages was indissoluble, yet it was at the same time held that certain circumstances preceding the marriage would render it invalid; that there might have been, for instance, what was called a pre-contract, or a contract for a prior marriage, impairing the validity of the subsequent union which it was desirable to dissolve. So, again, marriages could be contracted only where there was no consanguinity or affinity between the parties to render them illegal in the eye of the Church; and to such an extent was this notion carried that remote cousins could not marry without a dispensation having been previously obtained, and a marriage could be dissolved and a divorce, as we would call it, procured, by showing that there was some remote connection between the parties which rendered the union invalid. Lord Coke related that in one case a marriage was dissolved because the husband had stood godfather to the cousin of his wife. The effect of the Reformation was totally to change the feelings of the community upon this subject. Whereas, prior to that event, the doctrine of the Church had been that marriage was a sacrament and indissoluble, the opinion of the Reformers was that there was nothing of a sacramental nature connected with marriage, which, they thought, though under the sanction of religion, to be a mere civil contract which ought to be dealt with in the same way as other civil contracts,—namely, by considering what was most for the interests of the parties concerned. Accordingly, when Henry VIII. and Edward VI. issued the commissions to certain divines and laymen for the purpose of framing a new code of laws for the regulation of the community more suited to the altered circumstances and feelings of the people, under the influence of the Reformed Church, the Commissioners, presided over by Archbishop Cranmer, enumerated in their work entitled Reformatio Legum Ecclesiasticarum a great number of causes for which they thought divorce ought to be granted. Adultery on the part of either spouse was one of those causes; unjustifiable desertion was another; capitales inimicitiœ or deadly hatred a third; and there were several other cases in which, according to the opinion of those early Reformers, divorce might be prudent and advisable. Their recommendations, it is true, were never embodied in the form of law, but they showed what were the opinions and feelings upon this subject of the first Reformers, ecclesiastical as well as civil. Moreover, they were, to a great extent, in harmony with the feelings of the community, and the consequence was, that soon after the publication of the Reformatio Legum the doctrines which it propounded, though they did not become law, were practically acted upon by society. The first instance in which the doctrines were applied was the case of the Marquess of Northampton, who, having in 1550, obtained from the Ecclesiastical Courts a divorce à mensâ et thoro, and being anxious to marry again, the question arose whether, when the Ecclesiastical Courts had granted a divorce, it was competent to the parties to remarry—whether, in fact, a divorce à mensâ et thoro amounted to a dissolution of the marriage or not. A commission was issued to certain functionaries to inquire what was the effect of such a divorce, and the Commissioners reported that it dissolved the marriage. In the meanwhile, however, the Marquess of Northampton had decided the question himself by contracting a second marriage; and eventually, in order to legalize all that had taken place, an Act of Parliament was passed, confirming what had been done. This indicated that the opinion of our first Reformers was that the Ecclesiastical Courts had it in their power absolutely to dissolve marriage so as to enable the parties to marry again. There was a circumstance connected with the proceedings of those courts which strongly confirmed that view of the case. It was this—that in a divorce à mensâ et thoro the parties were required to enter into a bond that they would not marry again—implying that but for that security the nature of the proceeding was such as would enable them to contract another marriage. In that state of the law a case arose at the end of the reign of Elizabeth, in which the contrary doctrine seemed to be held. The case was that of a Mr. Foljambe, and it was then held that the effect of a divorce obtained in the Ecclesiastical Courts was not to enable the parties to marry again. He need not trouble their Lordships by going through the three or four cases which happened during the seventeenth century—the cases of Lord Roos, the Countess of Mansfield, and others—in which, divorces having first been obtained in the Ecclesiastical Courts, Acts of Parliament were subsequently passed to enable the parties to re-enter the marriage state. In two cases which occurred during the same period, no proceedings at all were taken in the Ecclesiastical Courts, but the marriages were dissolved and the parties permitted to marry again by the simple passing of Acts of Parliament. These precedents governed the practice of the whole of the last century, being followed more rarely in the early portion of it, and more freely afterwards. From 1715 to 1775 there were sixty Acts passed dissolving marriage, on account of the adultery of the wife. From 1775 to 1800 the number considerably increased, and amounted to two or three annually. In the first half of the present century, about two Bills a year had been passed for the same object. From the time when it was universally acknowledged that divorce by the Ecclesiastical Courts did not dissolve the vinculum of marriage, and that Parliament could pass Bills dissolving marriage, about 200 or 250 Acts had passed enabling parties, on account of the adultery of the wife, and, in some very few instances, on account of the adultery of the husband, to marry again. That fact indicated sufficiently that the feeling of the community was in favour of some re-remedy for the wrongs of a husband whose wife was proved to have committed adultery more effectual than that afforded by the law administered by the Ecclesiastical Courts; and that being the case, the question was how far the feeling of the country in favour of such a remedy was a reasonable feeling, and one to which the legislature ought to listen. He had set out by stating that he thought no measure could be more injurious, more calculated to interfere with the social welfare of the country, than one which tended to shake the solidity of marriage and the strength of the marriage tie. It was observed by a most able Judge and most powerful reasoner, Lord Stowell, that "the knowledge that persons united in marriage must continue husbands and wives often made them good husbands and wives, for necessity was a powerful master in teaching the duties which it imposed." To every word of that he most heartily subscribed, and he thought any one would be acting very unwisely for the interests of the community who proposed a measure which would at all weaken that principle. But all experience showed that when marriage was held to be indissoluble in cases of the adultery of the wife, some subterfuge was resorted to in order to supply the defect of the law; in Roman Catholic times, by pretending that the marriage was invalid, and recently by the parties obtaining a private Act to give the relief which the Ecclesiastical Courts could not give. It was a state of things which had been often complained of, and led, in 1850, to issuing a Royal Commission to inquire into the whole subject. That Commission was directed to persons of the greatest eminence, amongst others, to the present Lord Chief Justice (Lord Campbell), Dr. Lushington, Lord Beaumont, Mr. Walpole, Vice-Chancellor Wood, Mr. Bouverie, and Lord Redesdale. Having fully inquired into all the points at which he had just glanced, they made a Report two years afterwards. The course which they recommended, their Lordships were asked to adopt in the Bill which he had the honour of submitting to them. The Commissioners recommended that whereas the practice had been growing for a century and a-half or two centuries of invariably allowing the husband an Act of Parliament to dissolve the marriage if adultery on the part of the wife were proved, and relieving them altogether from the vinculum of the marriage, that state of things should no longer continue, but the law should be made to adapt itself to the practice and to what had been shown to be the wants of the community, and that a competent tribunal should be constituted, to do that which the Legislature had heretofore been in the habit of doing. The main object of this Bill was to constitute a court which should be competent to decree as a matter of right that relief in favour of persons who had just matter of complaint, which could now only be obtained by means of an Act of Parliament. The first question which demanded consideration was with regard to the mode in which the court should be constituted. The Commissioners recommended that the court should be constituted of a judge from the Court of Chancery (a Vice Chancellor), a judge from a court of Common Law, and an Ecclesiastical Judge. Substantially those recommendations were adopted in the Bill, except that, as these questions had hitherto come before the highest court, their Lordships' House, he proposed that the court should be constituted, not of a Vice Chancellor, but of the Lord Chancellor; not of a puisne Judge, but one of the Chief Justices, and of the Judge of the proposed Court of Probate. There were, of course, many details of the measure with which he need not trouble the House; but he would remark, that at the close of the last century, in 1798, Lord Lough-borough, for the purpose of preventing abuses in applications to their Lordships' House for divorce, established certain Standing Orders which had been acted upon ever since. According to those Standing Orders, no Bill for divorce could be read a second time, unless there were laid upon the table the proceedings in the Ecclesiastical Court, whereby divorce had been obtained from that Court on the ground of adultery; and further, unless the party suing for divorce had established a primâ facie title by having brought an action of crim. con. against the alleged adulterer, and obtained a verdict—though with regard to the proceedings by action of crim. con. they were dispensed with if circumstances rendered it impossible the action could be brought. The consequence of these regulations was, that the whole of those disgusting and disagreeable questions had to be inquired into three separate times before the ultimate remedy could be obtained; for the proceedings in the Ecclesiastical Court were conducted according to the particular form of that court, the action for crim. con. was brought in one of the superior courts of common law, and tried in the ordinary way by a jury; and, finally, when the suppliant came to their Lordships' House, the whole case had to be proved over again by witnesses examined vivâ voce at the bar. To the investigation of the question on three different occasions there was the grave objection, if no other, that such complicated proceedings were too expensive for the pockets of any but the richest sufferers, and that relief was put beyond the reach of all but the wealthiest classes. He proposed, in lieu of those triplicate proceedings, that the tribunal he proposed to institute should thoroughly investigate the matter once for all; and he further proposed, instead of the inefficient mode of inquiry adopted in the Ecclesiastical Courts that the investigation should be conducted by vivâ voce evidence in open court, and that all questions of fact should be decided, save in exceptional cases, by trial by jury. He thought that would be the best, the cheapest, and the most expeditious mode, and the mode which would secure the greatest chance of giving satisfaction and arriving at the truth. He proposed, that on the husband complaining that his wife had been unfaithful to him he might come before the new tribunal, and on establishing his case, and establishing also the fact that there had been no improper conduct on his part—such as adultery, desertion, cruelty, or the like—he should be entitled to obtain at once a decree which would give him the same relief as he could at present obtain only by a private Act of Parliament. Since he first submitted this measure to their Lordships, he had received letters from various persons, complaining that the measure did not go far enough. There were many cases, it was said, short of the adultery of the wife, in which the husband ought to be entitled to relief. To those applications he had not thought it desirable to listen. Questions, for example, had been raised as to how far marriage was to be considered a subject on which the positive rule of Scripture prescribed what ought to be done. There were those who thought that, except for positive adultery, divorce should never be permitted. There were others who would give the text of Scripture a larger acceptation. He would not pretend to discuss the proper mode of interpreting the passages in question; but of this he was persuaded, that if this measure ever passed into law, the good feeling of the country would require, whatever might be the cor- rect interpretation of those passages, that, in the interests of the community, they should be construed in the strictest mode. For that reason he had believed it would be impossible, and would certainly be unwise, to extend the relief to anything short of adultery. Another question of a different nature had also been raised. It was one upon which a great diversity of opinion existed. It was suggested that the same rules which governed their Lordships in granting relief to the husband should be equally extended to the wife. It had been the invariable practice in their Lordships' House to grant to a husband complaining of and establishing the adultery of his wife a private Act of Parliament, setting him free from the marriage contract. But the same rule had not been applied to the wife complaining of the adultery of her husband. Their Lordships had, no doubt, occasionally granted a divorce at the instance of the wife complaining of the adultery of her husband; but those cases had been extremely rare. It had even been the feeling of that House—indeed, it was a feeling common to mankind in general—that, although the sin in both cases was the same, the effect of adultery on the part of the husband was very different from that of adultery on the part of the wife. It was possible for a wife to pardon a husband who had committed adultery; but it was hardly possible for a husband ever really to pardon the adultery of a wife, and therefore it was that in their practice in that House their Lordships had always made a great distinction between the two cases. The only instances where marriage had been dissolved at the instance of the wife, were such as had been accompanied by some special circumstances—such, for example, as incestuous adultery on the part of the husband. The measure which he submitted to the House in the last Session was framed on that principle, and originally it proposed to grant divorces to the wife on that ground only. That Bill was referred to a Select Committee of their Lordships' House, and that subject was very much discussed both in the Committee and in the House. Some of their Lordships thought there were two or three other cases in which the privilege of divorce might be granted to the wife as well as to the husband. Two of those cases were incestuous adultery and bigamy; another was the case where the adultery had been coupled on the part of the husband with such cruelty as would have entitled the wife to a divorce à mensâ et thoro even if there had been no adultery; a third case was adultery with desertion on the part of the husband. These grounds of divorce he had added to the Bill now under consideration. When the Bill was before the House last year it would be in their Lordships' recollection that the right rev. Prelate (the Bishop of Oxford) introduced a clause to the effect that in case of the dissolution of the marriage the adulterer should never be at liberty to marry the adultress. When that proposition was made he (the Lord Chancellor) raised, he believed, his solitary voice against it. It was carried nevertheless—he would not say by a coup de main, but by acclamation—as if such a proposition was ever likely to have a moral or a useful tendency. He himself thought it was a great blot on the Bill, and would be fraught with unmixed evil instead of good, because he believed that such an enactment would be the means of removing that which in every honourable mind must be the great check to the commission of adultery. Such a clause, he admitted, was always introduced into private Bills for divorce in their Lordships' House, but he believed was invariably struck out in Committee; at all events, it was always expunged in the other House of Parliament. Therefore it was that he had not thought fit to reintroduce the clause into the present measure. One other matter and he had done. In the Committee the question was agitated whether or not a clause should be introduced into a Bill of this nature prohibiting the action for criminal conversation. The Committee was very much divided on that subject; but eventually no such proposal was carried, and the Bill went down to the House of Commons without any such clause. There had however, been much discussion on the subject ever since, and he had thought that this was probably the best course. The objection to that action was that it was generally a scandalous exhibition; and that the feeling of mankind revolted at the notion of a husband making a sort of profit from his wife's disgrace arid his own dishonour. Why, then, were these action brought? Because it was a standing order of their Lordships' House that, unless a verdict had been obtained in such an action, no divorce should be granted. The question was whether, if the necessity for these actions was removed, it should be left optional with persons to have recourse to such proceedings if they thought fit. But he thought the more reasonable course was that which he had proposed—namely, that whereas an action of crim. con. was now the necessary preliminary to a divorce, such action should in future only be founded on the fact of a divorce having been obtained. He confessed he could not quite satisfy himself that it was reasonable to say, after a divorce had been obtained by a husband on account of the adultery of a wife, that the husband should not be entitled to maintain an action for such grievous wrong, as he could do for any other legal wrong. He believed that actions of this description would very rarely be brought when they ceased to be absolutely necessary, and he merely proposed to assimilate the law in this respect to that of Scotland, where, although such actions were maintainable, they were very seldom resorted to. He thought, however, that cases might arise in which injustice would result from precluding husbands from proceeding by action for injuries of this nature, and he did not believe that the continuance of actions of crim. con., in the manner he proposed, would occasion any scandal. So much for the cases of dissolution à vinculo matrimonii. Short of this extreme remedy, however, the Commissioners recommended that the divorce à mensa et thoro—that was, divorces such as were now granted by the Ecclesiastical Courts—which absolved the parties from the obligation of living together, should still be granted as heretofore. He proposed to act upon this suggestion, and he had provided by this Bill that such jurisdiction should be continued, and should be exercised by the Judge of the Court of Probate. The Ecclesiastical Courts at present decreed separation à mensâ et thoro, not only in case of adultery, but also in cases of cruelty; and when such a decree was made the Court directed a payment under the name of alimony, regulated in amount according to the husband's means, to be made to the wife. He proposed to continue the present system, providing, however, that the alimony might be paid, if the Court thought fit, not to the wife herself, but to trustees for the wife; because he thought that would prove a more beneficial course. He proposed, also, to add a new clause, justifying divorce à mensâ et thoro—namely, unjustifiable desertion. It had often been a subject of complaint that if a husband deserted his wife for a great length of time, and subsequently returned, he was entitled, if he found she had earned or succeeded to any property during his absence, to claim and appropriate it. He (the Lord Chancellor) proposed to remedy this evil by enacting that after a husband had deserted his wife without reasonable cause for a certain defined period, a decree of separation might be obtained, but that the parties might still cohabit again, if they thought proper to do so. He now came to a portion of the measure which he regarded as of the most essential importance, affecting as it did the social status of the husband and wife after a divorce had taken place, not à vinculo matrimonii, but à mensa et thoro. Although the Ecclesiastical Courts had now the power of decreeing divorce à mensâ et thoro, which precluded the parties from the right of insisting upon cohabitation, and so far separated them, yet, with regard to all their social relations, as between themselves and the community, those relations were scarcely if at all altered. He proposed that from the time when a decree was obtained for a divorce à mensâ et thoro separating the parties, although not dissolving the marriage, the wife should, with regard to all earnings of money, all accumulations of property, and as to all contracts, be placed on precisely the same footing as an unmarried woman—that her property should be entirely her own, and that her husband should have no right to touch it. That provision, he believed, would remedy many of those evils described, no doubt with truth, as the grievances of married women, of which he, in common probably with a great many of their Lordships, had lately heard so much. If his proposition should be adopted, whenever a husband had deserted his wife, and had so conducted himself that, upon any ground, a separation might he obtained à mensà et thoro, the wife might safely trade, or exercise a profession, and accumulate money, and she would be protected in the enjoyment of the fruits of her industry, just as if she had no husband. He was perfectly aware that this might, by some persons, be regarded as a very imperfect and meagre remedy for a state of things which ought to be dealt with on much broader grounds. There were some who, in considering the subject of divorce, would open the whole question of the relations of marriage; and his noble and learned Friend Lord Brougham, whom he hoped they would soon again see in his place, had during the last short Session introduced a Bill which would have had the effect of entirely altering the social relations of husband and wife, so far as property was concerned, and which would provide substantially that there should be no community of goods whatever, but that the husband and wife should be as much distinct persons as brother and sister. He (the Lord Chancellor) would not allow himself to be led into any discussion of a subject so extraneous, and so beset with difficulties as this. The question of divorce was one of so much difficulty and extent, that it was ample enough to be dealt with alone; and if he succeeded, by the present measure, in improving the law of divorce, and of establishing on a rational footing what should be done when, unhappily, circumstances arose which naturally and justly led to a dissolution of the marriage tie, he should consider that he had accomplished a very important object, even although there might yet remain to be considered, on some other occasion, that still more difficult question—whether, indeed, the whole social relations of married life should be unravelled and changed. He would, therefore, conclude by moving the second reading of his present measure, reminding their Lordships that its object was to do away with the remedy of private legislation for such persons only as could afford to obtain a divorce by Act of Parliament, and in cases which were now relieved by the Ecclesiastical Courts, to give relief by a court especially constituted for that purpose; and, under cases of lesser evil, to confer upon the wife all those privileges which she was under the circumstances fully entitled to obtain. Having now explained the provisions of the Bill, he would ask their Lordships to give it a second reading.

Moved, That the Bill be now read 2^a

THE ARCHBISHOP OF CANTERBURY

said, the subject which had been brought before their Lordships in the Bill which his noble and learned Friend had so lucidly explained, was unquestionably one of the very highest importance, for it affected the social life of the community. It was also a most difficult subject, for it was impossible to foresee what might be the consequence of a new institution like that proposed. There was great danger, lest in endeavouring to apply a remedy to an existing and acknowledged evil they opened the way to greater evils than those which they desired to remove. The facilities of divorce, alluded to by the noble and learned Lord, which had been admitted in many of the Protestant States on the Continent, were no doubt intended not to injure morality but to obviate existing inconve- niences: but those facilities had ended in so gross a laxity of morals that it was notorious that there was a strong desire in those countries to remove them, and to return to a state of things more in accordance with the system which happily in this country had never been set aside. On these grounds he had always felt it to be no slight comfort that in legislating concerning marriage they had authority on which they could constantly and with confidence rely, and which could not direct them wrong; that they could appeal to the Divine law, and proceed as far as that allows to proceed, and stop when it directs them to stop. This had always been his comfort in a distressing question on which their Lordships had been often called to decide,—the marriage of a widower with his deceased wife's sister. Believing as he did that the Scriptures forbad that union, he had never thought himself at liberty to listen to the plausible arguments from expediency in favour of such unions which he had heard on the other side. He took the same ground respecting the measure now upon the table. He appealed to the Divine law. No one, he thought, could deny that, according to the general tenor of that law, marriage, once contracted, was designed to be indissoluble—indissoluble, saving for one cause—a cause which destroyed the purpose and intent of marriage—saving for the cause of unfaithfulness. For that cause it was declared lawful for a man to put away his wife, and, by parity of reasoning, it would be lawful for a woman to put away her husband. Thus far the Bill of the noble and learned Lord proceeded on true principles, providing such precautions and safeguards as legal experience and a knowledge of human nature showed to be necessary. He did not see that they could refuse this liberty to an injured wife or husband; though, with respect to the legal expenses attending the procedure he regretted that circumstances which they could not alter rendered this relief less available to one class of the community than another. But here he stopped. He regretted that the Bill did not stop here: that one section of the Bill permitted the parties whose guilt had occasioned the dissolution of the first marriage to form afterwards a legal union; whereas the Divine law said, "Whosoever shall marry her that is put away committeth adultery." He could not venture to contravene the Divine law, even if he could not perceive its reasonableness; but surely in this case it did approve itself to their judgment. The object of the proposal was to prevent crime. But surely they offered temptation to crime if they permitted the commission of crime in the first instance to lead ultimately to that result which had unhappily become the desired result, and to end in even permanent legalised union. Surely the first spark of guilty passion ought rather to be extinguished by the conviction that its indulgence could only lead to reproach and degradation. He believed that they would best consult the interests of morality and the comforts of social life if in legislating on this delicate subject they adhered closely to the principle which Scripture had laid down. On these grounds, while he voted for the second reading of the Bill, he must oppose in Committee the clause which permitted the guilty parties to be united in legal marriage.

LORD LYNDHURST

said, he did not know what course precisely to pursue, as he had suffered under the misfortune of not having heard a word of what fell from the most rev. Prelate; he understood, however, that on the whole the most rev. Prelate supported the Bill; but whether it was on the ground of the tribunal which was to be established he did not know. For himself, he felt extremely anxious for the success of the measure. A Bill of this nature had passed through the House on three different occasions, and the subject was examined very attentively by a Committee of that House, and when afterwards the Bill went down to the other House, it went down sanctioned by a very considerable majority of their Lordships' House. He could not, nevertheless, disguise from himself that both in the House and out of doors there was very considerable opposition to the measure. It was opposed, as he understood, both on social and religious grounds. A noble and learned Friend of his, for whose opinion he had great respect, only last night, in the neighbourhood of that House, said he was strongly opposed to the measure. Another noble Friend of his, whom he might almost call a noble and learned Friend, had circulated in print a very able article in opposition to the very principle of the Bill; and a right rev. Prelate (the Bishop of Oxford) whom he formerly had had the happiness to have as his diocesan, who ornamented every subject he touched, and gave point and vigour to every argument he used, was one of the most strenuous opponents of the present measure. It was impossible, therefore, for him not to feel very considerable anxiety with re- spect to the result of this discussion. He flattered himself a short time ago that the right rev. Prelate was not now present in the House; but the right rev. Prelate had recently made his appearance, and his active change from one position to another was a proof that the right rev. Prelate was preparing for a desperate conflict on this subject. It would not become him (Lord Lyndhurst) to enter into any Scriptural argument in the presence of the ecclesiastical array he had now the happiness to see before him. He said "the happiness," because on a former occasion their Lordships had not had the advantage of the intelligence, information, learning, and knowledge of that right rev. Bench on this subject. Considering, however, the feeling which prevailed on this subject, he should take the liberty of referring to authorities which he considered conclusive, as to the Scriptural doctrine that marriage might be dissolved in case of adultery. He maintained that that was the principle of the whole Protestant Church over and over again declared to be sanctioned by the express terms of the Scripture: it was supported by the concurrence of almost all authorities in the early period of the Church, and was sanctioned by Provincial and General Councils. This alone was sufficient authority to decide the question. And, with respect to our own Church, he would call their Lordships' attention only to that document to which his noble and learned Friend (the Lord Chancellor) had referred, the Reformatio Legum Ecclesiasticarum, drawn up by men partly ecclesiastics and partly civilians, all men of great learning and intelligence, who, after considering the subject fully and maturely, pronounced in favour of the dissolution of marriage in case of adultery. This was a body of authority which he for one felt, and all who had considered it must feel, was not to be resisted. On the other hand, he admitted that, according to the doctrine of the Roman Catholic Church, marriage could not be dissolved, because there it was regarded as a sacrament; but he thought he was authorized to say that the establishment of that principle must be traced to the Council of Trent—a Council which was anxious to extend the power of the Pope, and to enable the Emperor of Germany to crush the Protestants and destroy the Protestant religion. The authority of that Council, conducted on such a principle, the Protestant divines refused to admit. His noble and learned Friend had adverted to the various modes by which the rigid rules laid down by the Catholic Church had been rendered, in some degree, flexible, and by which its provisions had been evaded. He (Lord Lyndhurst) would not enter minutely into that subject, but would draw their Lordships' attention for a minute to the rule of the Protestant Church. Our law on this subject, even after the Reformation, was derived from the time when England was under Roman Catholic rule, and with us, as with Roman Catholics, marriage was indissoluble even in case of adultery. Accidental circumstances had prevented the change of that law. The document to which his noble and learned friend had alluded, and in which a new system of laws was drawn up in the time of Edward VI., never, in fact, came into operation, and owing to accidental circumstances the law had continued, from the time when the Roman Catholic religion predominated in this country down to the present time, on the same footing. He was bound, then, to admit that, according to the law of the country, as it at present existed, marriage was indissoluble by any legal tribunal. That being so, as the Roman Catholic Church found it necessary to resort to some means of evading the operation of the law, so we also on our side had been obliged to have recourse to palliatives: and, during 150 years, as there was no regular tribunal by which marriage could be dissolved, even in the extreme case of adultery, applications had been made to Parliament for private Acts to effect the same object. Well, this practice had gone on so regularly, and with such uniformity, that every person knew that if his character was irreproachable, and his conduct could not be found fault with, he might have a Bill presented to that House for a divorce in consequence of the adultery of his wife, with a certainty of obtaining the desired result. Laws, if they were to be respected by the people, ought to be precise, defined, exact, and extended to all classes, embracing rich and poor alike—for all were equal in the eye of the law—yet every one knew that the present system was confined to the wealthy alone, that no person with a moderate fortune could have any chance of success in resorting to it, and therefore, that so far as the mass of the community were concerned, there was no law whatever on the subject. Upon these grounds he could not see how it was possible that any solid objection could be made to the principle of the alterations proposed by his noble and learned Friend. If it were right that marriage should be dissolved in the case of adultery—and no one denied the right—surely such dissolution should not take place by occasional measures, but through the intervention of a public tribunal, open to all—to the poor as well as to the rich. But he (Lord Lyndhurst) remembered that, on a former occasion, the right rev. Prelate, (the Bishop of Oxford) supported by another right rev. Prelate, (the Bishop of St. David's) with equal ability, objected that the Bill would not answer the purpose which it professed to attain—because, he said, the tribunal it proposed to establish was such as would be accessible only to the wealthy. He said that men of the highest rank and station in the profession of the law would alone be engaged in it, —and he asked, "Do you suppose that justice can be cheaply administered by such a tribunal?" That was the argument urged by the two right rev. Prelates on a former occasion. The answer that I make to that argument is short, plain, and simple. It is this:—It does not follow that because a tribunal is composed of men of the highest professional eminence the expense of application to it will therefore be increased: on the contrary, the proceedings would be of the most simple description—a mere petition stating the complaint—there would be no written pleadings, no rejoinders, no labyrinths of that description; but the witnesses would be called to the bar, and they would give evidence vivâ voce, as they now did at the bar of their Lordships' House. It appeared to him that it would be impossible to establish any tribunal in which the proceedings might be carried on in a simpler way, or with less expense. In fact, he defied the "imagination of man" to conceive anything more simple. Another observation made by the right rev. Prelate was to this effect:—"What is to become of persons living at a distance? How are men in Northumberland or Carlisle to avail themselves of this new law? See how the expenses will increase if men from such a distance are to come to London to make their complaint. "In answer to that objection, he (Lord Lyndhurst) would observe that Her Majesty had power to direct the tribunal to sit in any place that might be desired; but it would not be necessary to recur to that power, because a petition might be presented to the Court from some person residing at a distance; the Court would consider what might be the most convenient spot for examination, and the examination would take place there; the Judges would hear the evidence taken on the spot, and the decision would be given in London. A noble Friend of his said on a previous occasion, that it was impossible to come to a satisfactory conclusion on the subject of divorce àvinculo, that the subject was surrounded by so many difficulties and entanglements that the more you inquired into it the more difficult it appeared. Well, but when you mentioned difficulties, he (Lord Lyndhurst) would ask how was justice in this matter administered in other countries? In Scotland a divorce à vinculo was decided by the ordinary tribunals, without any difficulty. In the United States, also, no difficulty was experienced in administering this branch of the law by the ordinary tribunals; and if this were so in other countries, what difficulty there could be here he was at a loss to imagine. But then this class of objectors turn round and say, with inconsistency as it appeared to him, "This law is really only applicable to the rich;" and then they add, "but if you pass such a law for the poorer and humbler classes, it will be productive of the greatest mischief, of the greatest social evil, and it will demoralize the whole community." In answer to that, he (Lord Lyndhurst) would say, that his opinion was quite the contrary; he maintained that the direct tendency of the present law was to demoralize and degrade the lower classes. A man finds his wife committing adultery; he has no remedy; he cannot apply to a court of justice to dissolve his marriage; he therefore continues to live on with her, committing acts of brutal and degrading violence on her—or he turns her out, and she goes to live with the adulterer. What, he asked, was the effect of such a scene upon the lower orders of the people? Or, again, if he do not drive her forth, he acquiesces in her shame and guilt; the adulterer comes from time to time to his residence; he cohabits with his paramour; and what, he should like to know, could be more destructive of the morality of the lower orders? Did they mean to say—could they say—that the interposition of a court of justice, dealing justice alike to all, and dividing persons of that description, would tend to demoralize the state of society more than such occurrences as he had endeavoured to describe? Let them not indulge in any theories, any abstract reasonings, or any visionary ideas on this subject. What was the case in Scotland? The law there existed accessible equally to the poor and to the rich. Had it pro- duced any bad effects there? Directly the reverse; and happily the evidence in this respect was all on his side. His noble and learned Friend (the Lord Chancellor) had referred to the Report of the Commissioners, and he (Lord Lyndhurst) was happy to state that men from Scotland of the highest rank, of the best informed minds, and of the greatest opportunity of observation, all concurred in saying that, so far from this extension of the law producing any bad result, it had a directly contrary effect; and he quoted this in answer to all those theories and all that eloquence which they had heard advanced on the other side. Having gone thus far, he must be allowed to remind his noble and learned Friend of some of his objections to his original measure, and to repeat, although this Bill was an improvement on the last, that it did not go far enough. The Committee which investigated this matter examined it with great attention, and he was happy to say that several of his (Lord Lyndhurst's) suggestions had been adopted, and were now incorporated in the Bill. He was sorry to add that it did not go to the full length that he expected, and he hoped that their Lordships would allow him to press some of his suggested amendments upon the House, in the hope that they might be added to the present measure. One of the objections which he entertained to the principles of the Bill, as it stood, was the great inequality which it recognized between the sexes. The inequality was extreme. No extent of adultery on the part of the husband could, according to this Bill, entitle the wife to a divorce; and hence the trite, but not not altogether unjust, observation, that men made the laws and women were the victims. The only argument of the slightest validity that he had ever heard adduced against placing the sexes on the same footing was that the mischief, resulting from the adultery of the woman—namely, the introduction of a spurious offspring into the house of the husband—does not result from the adultery of the man. But did it follow because there was this one point of difference that the rest of the case, as regards the woman, was not such as to require the interposition of the law? Was that the true and logical mode of argument—to select one particular fact in a case, and to say that therefore the whole case differed from another to which, with this exception, it was exactly similar? Suppose, as not unfrequently happened, that a man lived in open, flagrant, notorious adultery, without disguise, without limitation in point of time—perhaps bringing his paramour home to his own wife, insulting her in this way, and treating her with great harshness and even cruelty—was he to be told that in such a case the wife was to be left without a remedy? Was not that such a state of things as to entitle the wife to a divorce? Did not justice imperatively call for a remedy? The husband might indulge in every species of infamy connected with adultery; he might violate every human law, and yet there would be no divorce. Take the case of Lord Audley—was there to be no divorce in a case like that? Was there to be no interference between the villain and his victim? Suppose the case of a double adultery—of a husband committing adultery with a married woman; in this case you have the spurious offspring introduced, and the analogy between the case of the man and that of the woman was complete. Was there still to be no interference of the law for the behalf of the woman? Was there to be no divorce? Let their Lordships do justice. Let them not suppose that if they allowed a woman to proceed against her husband for adultery, our courts would be filled with such applications; there was no foundation for such an assumption. Remember that this proceeding could only be instituted by the woman; and no one who knew anything of the female character could suppose that she would be easily prompted to institute a proceeding of this kind. Every man who has studied the female character must know that nothing but a long, deliberate, hopeless suffering—nothing but intolerable agony, would overcome her patient endurance—would induce her to come to the court for a divorce. Everything which a woman holds dear was at stake in such a case. She loses her home, perhaps her position in society—in all probability the guardianship and care of her children—all, in short, that she most values she forfeits if she successfully prosecutes an application of this sort; and he said, therefore, that the more they considered the more they would be satisfied that there was nothing to alarm them in the provision he was suggesting, and that such proceedings on the part of the women would be very few in number. As he had said, their Lordships ought not to legislate exceptionally, and he appealed again to the noble Earl opposite (the Earl of Aberdeen) on this subject. He knew perfectly well that in Scotland the law was equal both as regards the man and the woman, and that the woman was equally with the man entitled to prosecute for adultery. Did any inconvenience arise from that state of the law? Had any evil resulting from it ever been pointed out? On the contrary, all the evidence they had was decisive on the subject. He referred again to the same document to which his noble and learned Friend had alluded. Here they had the evidence of most distinguished individuals, who, when asked if they would wish to see a change introduced into the existing Scotch law in consequence of any inconvenience resulting from it, give a positive answer in the negative, and say, "We adhere to the law because we approve of the law, and find no inconvenience resulting from it." But the case did not rest there. He relied upon the principle of our own ecclesiastical law, which did not dissolve a marriage for adultery either in the case of the man or of the woman, and punished both equally. The case of the husband by our ecclesiastical law is put on the same footing as that of the wife; that is the principle always acted upon. How then could they say that by extending relief in each instance they introduced a new principle? If the punishment at present inflicted was the same as regards both the man and woman, how was it that by carrying this punishment still further they were departing from the principle of the law? The right rev. Prelate (the Bishop of Oxford) referred me on a former occasion to St. Augustine, calling my attention to the voluminous works of that very learned, distinguished, and, I may say, curious individual. Well, St. Augustine puts the case of the husband, upon the authority of Scriptue, upon the same footing as that of the wife. He draws no distinction between the two sexes, and, as he had said, enforces his opinion by the authority of Scripture. But again, there was another authority to which he begged to refer—an authority of our own Church—he meant that great work to which he had before alluded, the Reformatio Legum Ecclesiasticarum. The learned body concerned in this work—consisting of sixteen divines of high rank, station, and learning, and an equal number of laymen of the same character, came to the conclusion that there was no distinction between the case of the man and the woman, and they express a strong and decisive opinion on the subject. There was no authority on the other side. Conjecture and ingenious argument, entirely unsupported by any principle, might, indeed, be indulged in; but he thought there was nothing like the shadow of authority in support of the contrary view. It was true that in old times that House, composed of men only, not exactly administering justice, but legislating on this subject, legislated in favour of their own sex and against the other. But there had been even in that House authorities on the side of equality. Lord Eldon is one of those to whom he would refer. He at first seemed to have been opposed to granting to the woman the same measure of relief as to the man; but a great change took place in his views; towards the close of his career, when his accumulated experience was at the highest point, Lord Eldon, upon Mrs. Moffatt's case, observed, in almost the very words he was about to use:—"I see no reason whatever why a woman should not be entitled in a case of this kind to the same relief as a man." Moreover, this was not mere assertion on the part of the noble Earl; he acted upon his belief, for he moved the second reading of the Bill. Lord Brougham too, when Lord Chancellor, opposed this Motion. He (Lord Lyndhurst) knew, however, that the noble and learned Lord—he was unfortunately absent from this discussion—now felt strongly that what a man could do a woman should also have it in her power to do, and to this view he had given clear expression in writing. Lord Thurlow likewise expressed a strong opinion in the case he had mentioned, and lastly, he would refer to Dr. Lushington, that very learned Judge of the Consistory Court, who had spent his whole life in inquiries of this kind, and who had expressed a strong and decisive opinion on the subject. He might, perhaps, be thought to have overlaid this case with authority. A strong feeling, however, existed on the other side among certain persons. He had felt it his duty, therefore, to quote all the authorities he could, and it appeared to him, that as far as weight was concerned they were irresistible. He now left this part of the case in their Lordships' hands. But he would ask them to allow him, if he was able, to go a little further. He would beg, and most earnestly entreat their Lordships, if they could not go as far as he wished, for the relief of the other sex, they would consider whether they could not grant them at least this—that when a man deserts his wife willfully—in the language of the law, maliciously deserts and abandons her—that that should be a sufficient ground for a divorce à vinculo matrimonii. It appeared to him that the arguments in favour of that proposition were unanswerable. They arose out of the very nature of the contract of marriage, of the objects for which marriage was instituted. Now what was the contract? The man promises during their joint lives to support, protect, and cherish the woman, and that he will never forsake her for another. There can be no more sacred promise, no more forcible engagement, no contract more binding. But if he disregards that promise, and abandons his wife, why was the contract still to be binding upon her? In commercial contracts if one party violated the agreement the other was released from it. Why should not the same principle be extended to cases such as he had mentioned? Then, what were the objects of the marriage ceremony? They were three in number. The first was the procreation of children, and training them up in the love and fear of God. That object was directly defeated by acts such as he had referred to. The second object was to guard against sin; but that was not only defeated by the desertion of a wife, but it usually led to the commission of sin. The third object of marriage is the comfort, society, and mutual protection of the husband and wife; but that was equally defeated by such acts as he had mentioned. Thus the whole objects of marriage were defeated by malicious, wilful abandonment of a wife; and under such circumstances he would ask whether it was just that a woman should be bound by a contract the whole objects of which have been defeated by the act of her husband? But then some may doubt whether what he proposed was within the Scriptures, and whether it had the sanction of any ecclesiastical authority. He would only say that the subject was discussed over and over again most carefully and most solemnly upon the Continent at the period of the Reformation, and it was then decided that not only were such acts grounds for dissolving marriage, but that such doctrine was sanctioned by Scripture. That was the result arrived at after argument, not only by ecclesiastics of the Reformed Church, but also by learned, pious, and eminent laymen. He could not do better than mention one, the most eminent jurist on the Continent of Europe—Grotius. He would only add, that in Scot- land this subject was argued by a layman, Lord Stair, in a manner which cannot be surpassed. He hoped his noble and learned Friend would consider this point before he proceeded in Committee with the Bill, and he trusted that he would adopt his suggestion. If he did not, he (Lord Lyndhurst) certainly should feel it his duty to propose a clause, and to press it upon the House. Cases of the kind he referred to had come under his notice times out of number. A man marries a woman with some small means. He remains with her a short time, dissipates her money, and then abandons her. She struggles on by herself, until by some good fortune she receives a legacy, or by her industry accumulates a little money, when the man reappears, seizes the property, claims it as his own, and then acts the old part over again; until, the money being spent, he finally abandons her. This was not an isolated case. He had seen two or three cases mentioned in the Appendix to the Report of the Committee, which are given as examples, but he had heard and known of innumerable instances of this kind. There was a case once before their Lordships which he would venture to recall to their recollection. A young girl of fifteen years—partly by force, partly by fraud and contrivance—was carried off by a man to Gretna Green, and married to him. Some months after she was discovered, the man was indicted and sentenced to two years' imprisonment, Mr. Baron Gurney, the learned Judge, regretting that he was unable to add hard labour. The girl was made a ward in Chancery; her property was secured; but the man, after the expiration of his imprisonment, never made his appearance in society again. That, however, was a case which stood by itself. He would wish once more to call their Lordships' serious attention to the law of Scotland. Wilful desertion of a wife is by the law of Scotland a sufficient ground for the dissolution of the marriage, and the law was constantly acted upon without causing any inconvenience. His noble and learned Friend said something about Prussia, and the laws of that country. The facilities for divorce there were extravagant beyond measure, and the Legislature has had to reconsider them. What had been the result? They had decided by unanimous vote that adultery and wilful desertion were scriptural grounds of divorce, and have accordingly retained them as such. With regard to Scotland, he could not avoid expressing the astonishment which all must feel at the difference between the law in that country and in this. They are both parts of the same empire, and are governed by the same Sovereign; the laws were made by the same Legislature; but yet the laws of each country are directly contrary. Bills were occasionally brought into Parliament to assimilate the law relating to commerce, or bills of exchange in England and Scotland; but they had never attempted to assimilate those laws which relate to and affect every family throughout the empire. It was truly singular neglect which permitted so extraordinary a state of things. Take the case of a man who marries in England, then proceeds to Scotland, where he is divorced and remarries. He then comes back to England with his Scotch wife, whither he is followed by his divorced wife, who appeals to the Ecclesiastical Court for a restitution of conjugal rights. She succeeds, and restitution of conjugal rights is awarded to her, while the man has also his Scotch wedded wife. Anything more extraordinary, more anomalous, could not be conceived. My strength, my Lords (continued the noble and learned Lord), does not enable me to follow the noble and learned Lord into all the points upon which he touched. I had intended to have said something about criminal conversation, but must postpone my observations to a future occasion. I must remark, however, that my noble and learned Friend has changed sides on this occasion. By the Bill of last Session he proposed to leave the law as it now is—that no divorce shall be granted until a verdict for damages for criminal conversation has been obtained. My noble and learned Friend now proposes to change that, and says you must have a divorce first, and an action for criminal conversation afterwards. My noble and learned Friend forgets the position of the Roman Catholic. He cannot obtain a divorce, and therefore, no matter how great his wrong, he is not to be allowed to bring an action against the seducer of his wife; consequently, to make the action to depend on the divorce, is practically to deprive a Roman Catholic of all redress. I do not know whether my noble and learned Friend has considered that point. There are some minor matters to which I need not now advert, but will briefly state my reasons for troubling your Lordships on this occasion. If I had post- poned until the Committee the suggestion of these Amendments your Lordships would have been called upon to decide at once, but I thought the subject of so much importance, of such deep interest, that I deemed it wiser and more respectful to this House to bring these matters under its notice at this early stage, in order that your Lordships might have an opportunity of fully considering them before the Committee upon this Bill comes on. I intend to move these Amendments in the Committee, when I hope your Lordships will adopt, if not all, at least to a great extent, my views, and do justice to that portion of society which has no advocates of its own, which is subject to laws made by us, and which is sometimes the victim of those laws. I wish to rescue them from that condition, and I appeal, not to your Lordships' candour, but to your justice, to afford me the means of doing so.

LORD WENSLEYDALE

, owing to whose position, only a few detached sentences of his speech could be heard, was understood to maintain that the law of England, notwithstanding the attempt to change it in the Reformatio Legum, was, and always had been, that a marriage once made was indissoluble, and he could not, therefore, look, without great misgivings, upon a proposal which made such a sweeping alteration in the law of the land, and made it dissoluble by legal right. At present it could be dissolved only by special legislation. If the Bill should pass, and his noble and learned Friend should succeed in establishing his new tribunal, it was true that the means of procuring divorce would be more accessible; but though they might make the law cheaper, they could not hope to make it cheap enough to be available to the lower classes of the community. A tribunal established in London might be easily available to persons resident in London, but would be of small use to the poorer classes resident in the country. How could they possibly stop where his noble and learned Friend now proposed? On what conceivable ground could they refuse to extend to inferior Courts—Courts, for instance, for the benefit of the poor—the same powers which they gave to the new Court of Divorce for the benefit of the middle classes. Then indeed the poor would have an easy mode of putting an end to a connection which had become irksome to them by the commission of adultery, and this facility appeared to him to threaten consequences extremely pre- judicial to morality, and be likely to lead to an extensive corruption of manners amongst those classes where public opinion has not so much influence to prevent the commission of such crimes, as in the higher walks of life. He therefore looked upon the principal clause of the Bill with great alarm as to its probable consequences. It had been answered that the Bill proposed nothing more than had long been the law in Scotland, and that in Scotland no such consequences had followed. But in Scotland the circumstances were quite different; they had long been used to that law, and the character of the people was different. Nevertheless, he thought that in many points the Bill contained much that was valuable, and as the Bill had already received the sanction of the House in the last Parliament, and had been in substance approved of by a Commission of learned and distinguished persons, he should assent to the second reading. His noble and learned Friend (Lord Lyndhurst's) objection to the provision that the action for crim. con. should only be prosecuted after the dissolution of the marriage was a very powerful one, and he (Lord Wensleydale) thought that the proposition ought not to be adopted. With these observations he should vote for the second reading of the Bill.

THE EARL OF MALMESBURY

said, he had no intention of offering any opposition to the second reading of the Bill; for he agreed with the noble and learned Lord who had just spoken that there was much good in it, and he should be sorry, therefore, to be instrumental in preventing its being read a second time. At the same time, he begged to state that it was his intention, on some future occasion, when the opportunity presented itself, to vote for any proposal which might be made to abridge the extensive and apparently unrestricted powers which it gave to parties divorced under its provisions to enter into the marriage contract again; for, if he understood the Bill correctly, the very act of obtaining a divorce, the Court being first satisfied that there was no collusion or conspiracy in the matter, would put the parties in the position of being able to marry again. He would suppose the possible case of two adulterous persons having obtained a divorce and afterwards marrying one another. Suppose they again committed adultery, and came before the Court for a second divorce, surely it could not be contended by the noble and learned Lord on the woolsack that it would be for the benefit of morality or of society that those persons should be able to obtain a second and perhaps a third divorce, as was the case in Saxony and other parts of Germany? Further, he doubted if there was much morality in allowing a man to ask for a divorce, his wife having committed adultery, and the woman to marry again, supposing the husband had seduced her in the first instance, and lived in concubinage with her before their marriage. He thought that in a case of that sort the man himself must have been the means of so corrupting the woman's mind as to greatly mitigate the criminality of what afterwards took place. By the 19th clause he observed that power was given to the wife to apply for a divorce by reason of the husband having been guilty of incestuous adultery. Now, supposing the act of adultery were committed with a woman with whom, if the wife were dead, the man could not legally contract marriage, she coming within the prohibited degrees of affinity—supposing, for example, the man had carried on an adulterous intrigue with his wife's sister—then he wanted to know if the clause to which he had referred would override the existing law of England, which prevented a man marrying his deceased wife's sister, and put the wife in the position of a woman who was dead, or who had never contracted marriage at all? On the other hand, supposing the Bill for permitting a man to marry a deceased wife's sister became law, the women of England would, under the present measure, lose one of the three privileges which it proposed to give them, namely, that of dissolving the marriage on the ground that the husband had intrigued with the wife's sister; for, by the law of the land, it would then be no longer incestuous to marry the sister of a deceased wife.

THE DUKE OF NORFOLK

said, he regretted that the right rev. Prelate, who he understood had intended to move that the Bill be read a second time that day six months, had not carried his intention into effect. But he rose to express the astonishment with which he had heard the noble and learned Lord (Lord Lyndhurst), whose opinion had so much and such deserved weight in their Lordships' House, assert to-night that Popes and General Councils had been constantly in the habit of granting dissolutions of marriages. He challenged the noble and learned Lord to put his finger on a single case in which a Pope or Council had dissolved any valid and completed marriage. He did not think he could point out one; at all events, it was the universal feeling of the Roman Catholic Church that marriage was indissoluble. For his own part, looking at the question from a purely Scriptural point, he thought the Bill so objectionable that, in whatever stage it should be opposed, he should be ready to lend his humble assistance in order to throw it out.

LORD CAMPBELL

said, their Lordships would receive with the sincerest respect what had fallen from the noble Duke; for the opposition of the noble Duke was consistent, because, according to his faith and the faith of his ancestors, marriage was a sacrament, and could not be dissolved. He was, however, speaking to an assembly, the great majority of whom were Protestants, and maintained a different opinion. All Protestant Churches held that, according to the precepts of the Divine Founder of our religion, for adultery marriage might be dissolved; and it seemed to him (Lord Campbell) to be straining and quibbling when any other interpretation was attempted to be put on the words of our Lord. As no attempt had been made to answer what he must call the unanswerable speech of his noble and learned Friend (Lord Lyndhurst), it would be absurd for him to go over the same arguments. At the same time he thought he might attempt, perhaps not unsuccessfully, to quiet the apprehensions of his noble and learned Friend (Lord Wensleydale), who complained that by this Bill they were altering the law of the land, for by the law of England marriage was indissoluble. That was a mere legal subtlety, spoken by a lawyer, and contrary to fact and common sense. For the last 200 years marriage by the law of England had been dissoluble for adultery. For 200 years it had been a matter of right that a husband whose wife had been unfaithful, and who had been a kind and attentive husband, might apply for a divorce, and a divorce he was sure to obtain. It was true that in Bills of divorce their Lordships nominally acted legislatively, but they really and to all intents and purposes acted judicially—they saw that the allegation of adultery was fully sustained, and then as a matter of course they granted the remedy prayed by the injured party. That had been the invariable course; and by the practice, therefore, of the law of England, any one proving adultery had a right to a divorce and to marry again. He had the honour to be at the head of the Commission appointed in 1850; the object of the Commissioners was not to alter the law, but the procedure by which the law was carried into effect. They were shocked at the complexity of that procedure—first, that there should be an action for crim. con.; second, a suit in the Ecclesiastical Court for a divorce à mensâ et thoro; and then a petition for a Bill in their Lordships' House. The noble and learned Lord on the woolsack had spoken of the three different proceedings, but he had really understated them. There was a fourth. The whole matter might be investigated over again at the bar of the House of Commons; and, although of late years the House of Commons, out of decency, had accepted the evidence taken at their Lordships' bar, he had himself examined witnesses at the bar of the other House to prove the adultery for the fourth time. He thought these repeated exposures very much to the detriment of public morals. The Commissioners proposed that divorces should be obtained by a tribunal established to hear evidence and pronounce decrees instead of by sham legislation, and this Bill would give effect to their recommendation; therefore his noble and learned Friend might dismiss his apprehensions on the score of changing the law of England. Many persons were for putting the sexes on entire equality as to divorces, and his noble and learned Friend said there was no authority for making any distinction. But the wisest of all codes—the civil law—made a difference, and only gave the woman a divorce for adultery of the husband, when accompanied by aggravation—as bringing the concubine to the same house with her. [Lord LYNDHURST: That was the law of the Code Napoleon.] Yes; and was taken from the civil laws. He thought marriage should be dissolved where it was impossible that the parties should ever live together again. Where the wife committed adultery, it was contrary to the general feeling of mankind that there should be condonation, and therefore it was right that the power of divorce should be given; where the husband committed incestuous adultery, or adultery with such aggravation as would prevent the wife condoning, divorce should also be permitted; if all the purposes for which the contract was entered into were put an end to, the contract should be dissolved. To that extent he would go with his noble and learned Friend, but no further. There seemed to be a general understanding that the Bill should be read a second time without further discussion. [The Bishop of OXFORD dissented.] He drew that inference from the right rev. Prelate's not accepting the challenge thrown down by his noble and learned Friend. But, however that might be, he could not omit drawing the attention of the noble and learned Lord on the woolsack to one or two points. He had heard no explanation of the manner in which the Bill would be applied to Ireland. For all that appeared on the Bill, an Irishman who had an unfaithful wife, would still have to petition the House of Lords. There ought to be a civil tribunal established for Ireland also—or at least some means for extending to Ireland the same facilities that were enjoyed by this country. With regard to the action for criminal conversation, he regretted that his noble and learned Friend had not taken this opportunity of giving a final blow to that system. He was ashamed of it. He had been taunted with it by foreigners, and had blushed when he was obliged to confess that such was the law of this country. He would also point out there were many classes of persons who would derive no advantage from this Bill—the noble Duke had mentioned the Roman Catholics, who could not obtain a dissolution of marriage, and who would have no other redress under the provisions of this Bill.

VISCOUNT DUNGANNON

said, he could not allow the Bill to go to a second reading without expressing—athough he stood alone—his heartfelt regret that such a measure should have been introduced. Honestly and sincerely, he looked upon it as striking at the very root of the best interests of society, civil, moral, and religious. It had been observed—and the observation he admitted had a very great degree of force—that it was hard and unjust that relief in matters of adultery should be open to persons who had power and position in society, and possessed the means of obtaining it, whilst it was practically denied to others in a different sphere and condition in life. Admitting, however, in the abstract, the extent of that evil, he could not but very much question whether the remedy now proposed was not worse than the original disease. The moment it was found that there existed a greater facility than heretofore for the dissolution of the marriage tie, he feared it would supply additional encouragement to the indulgence of illicit desires, and that consequently the happiness which had hitherto generally characterised the social life of this country would be very materially impaired. He believed that it was the difficulty—the almost insuperable obstacles—which at present stood in the way of dissolving the matrimonial contract that most contributed to the well-being of society. It influenced parties when once they had contracted that tie to earnestly endeavour to pursue the course which was most likely to conduce to their personal and domestic happiness, and consequently they made it their object to set aside and get the better of those minor differences of disposition and of temper that might possibly exist between them. There was another point to which he desired to call their Lordships' attention. They were aware that the solemn tie of marriage was too often hastily entered into, and with very little forethought, more especially by the lower classes of society. He should look upon any greater facilities for the dissolution of marriage, such as were to be given by the present Bill, as a very great addition to that evil, and thought they would prove a source of misery among that class of people which it was painful to contemplate. He for one much regretted that any attempt should have been made to legislate upon this all-important question until the matter had been seriously discussed by the heads of the Church, and the opinions of the Church at large had been made known to their Lordships by the representatives of the Church, the most rev. and right rev. Prelates who had seats in that House. He had heard many powerful arguments upon the subject that evening, and none more so than those of the noble and learned Lord (Lord Lyndhurst) to whose eloquence and to whose power of argument he had again and again listened with admiration and delight, and from whom he differed with the greatest misgivings as regarded his own judgment; nevertheless, he was compelled to say that he viewed this measure with feelings of the utmost misgiving and alarm. He very much doubted if good could arise to society from its introduction; and, moreover, he very much apprehended that there was little chance of obtaining any essential Amendment upon it in Committee. He had hoped that the right rev. Prelate (the Bishop of Oxford) would have moved, as an Amendment, that the Bill be read a second time that day six months, and felt regret at his not having done so; because he was convinced it would have come from the right rev. Prelate with a force which it was impossible for him (Visount Dungannon) to bring to bear upon it. But believing strongly that the measure was calculated to shake the very foundations of the best feelings of society—so much did he apprehend that evil consequences would result from it—that, although he might be charged with presumption for taking such a prominent part in the debate, he felt himself compelled to move, as an Amendment, that the Bill be read a second time that day six months.

Amendment moved to leave out ("now") and insert ("this Day Six Months").

LORD REDESDALE

said, that after the most careful consideration he was convinced that the declarations contained in Scripture of the indissolubleness of the marriage tie were far stronger than the single passage which was quoted against it; and even that passage, so often cited as sanctioning the dissolution of marriage, appeared to him to contain the strongest possible injunction against it, for while it was said that man and wife were one flesh, it was also said that he who married a woman who had been divorced committed adultery;—how could it be said that he committed adultery unless the woman were still a wife? But setting aside the religious part of the question, which was scarcely a proper subject for discussion in that House, he would contend that upon the moral view the arguments against the proposed change were still stronger. He would ask their Lordships to consider what had been the moral character of the people of this country under the existing law. He believed there was no country in the world where, taking it from high to low, the marriage tie had been observed more sacredly, or had produced a greater amount of happiness, and he believed that had arisen mainly from the impossibility of obtaining a dissolution of marriage. And what had been the result? Those who knew the great body of the lower classes of this country knew that among them marriage when once solemnized, was regarded in a manner of which it was impossible to speak too highly. In the rural districts cases were very common where people who before marriage had been remarkable for the immorality of their lives had, after marriage, become respectable members of society. The noble and learned Lord Chief Justice said that divorce was part of the law of this country—that divorce was sanctioned by law. But his way of putting the case was, he (Lord Redesdale) thought, more ingenious than true, because, as every divorce in every case required a separate and distinct piece of legislation, it could not be considered a part of the general law of the country. He (Lord Redesdale) was one of the Commissioners who inquired into this subject, and as his views had been somewhat misunderstood, he wished to say that he thought it would be much better to give up all exceptional legislation, to return to the original law of the country on this subject, and not to extend occasional legislation into a general measure such as that now under discussion. The noble and learned Lord on the woolsack had told them, that on the average two divorce Bills were applied for every year; was it then expedient, because their Lordships were called upon for this amount of exceptional legislation, that they should open the remedy to all the community. He admitted the exceptional legislation to be objectionable, but he wished to see it done away with, and not extended. He thought this experiment would be attended with great danger, for no one could tell what would be the result of facilitating divorce even to the limited extent proposed by this Bill. Their Lordships at this moment would not listen to any proposal for giving this power to any inferior tribunal; yet, if the principle of this Bill were admitted, how would it be possible to refuse hereafter to give the facility to all classes by extending the power to inferior tribunals? In some respects the Bill would undoubtedly tend to improve the existing law; but for the reasons he had stated he could not vote for the second reading. He should support the Amendment.

THE BISHOP OF SALISBURY

said, that as he had on a former occasion, when a very similar Bill was under the consideration of their Lordships, stated at some length the reasons which satisfied him that marriage was by the law of Christ indissoluble, he should scarcely have thought it necessary again to trespass upon their Lordships' attention, had not the noble and learned Lord (Lord Campbell) asserted that it was impossible to maintain such a position, and to argue against divorce à vinculo on the ground of Holy Scripture, except by a "quibble." He (the Bishop of Salisbury) must at once protest against the justice of such a charge. He declared that he was incapable of "quibbling" on such a subject, and yet he was one of those who believed that the testimony of our Blessed Lord on this subject was, when well considered, distinct and emphatic, and that no sanction was given in the New Testament to divorce à vinculo matrimonii. Our Lord had spoken on this subject on three occasions. On one of them, when addressing the Pharisees (Luke xvi. 18) He prohibited divorce altogether; and this He did again a short time after, in reply to a question put to Him by His Disciples, when He told them— Whosoever shall put away his wife, and marry another committeth adultery against her. And if a woman shall put away her husband and be married to another, she committeth adultery" (Mark x. 11, 12). He had also just before reaffirmed both to the Disciples and the Pharisees the original institution of marriage, and had taught them that God alone could separate those whom He had thus made one (Matt. xix. 4, 5, 6; Mark x. 6, 7, 8). It is true that, in answer to a question of the Pharisees on this last occasion (Matt. xix., Mark x.), and also in addressing the multitude as well as His Disciples in the first year of His ministry, He seemed to make, in the case of one sin, an exception to the general law which made marriage indissoluble (Matt. v. 32). But it was very difficult to admit this interpretation of our Lord's words, as such a concession to Christians would be at variance with the subsequent canon of St. Paul, who forbad the marriage of a person whose husband or whose wife, as the case might be, was living (1 Cor. vii. 10, 11; Rom. vii. 1, 2, 3). He (the Bishop of Salisbury) believed that such was not the true interpretation, and that in the two passages of the Gospels to which he had just referred (Matt. v. and xix.) no such concession was really made. He had satisfied himself that they did not favour that description of divorce which the present Bill was framed to grant, but that our Lord was only showing that the Rabbins had by their sophistries greatly enlarged the original limits of that compliance with the weakness of human nature which God had, in condescension to the hard-heartedness of the Jews, permitted Moses to make. There was, however, one point in which he (the Bishop of Salisbury) agreed entirely with a noble and learned Lord who had spoken early in the debate (Lord Lyndhurst)—and if necessary he could quote high authority in support of his views—that man and woman should be placed precisely upon the same level with regard to this matter, and that an indulgence should not be allowed to the man which was denied to the woman. He (the Bishop of Salisbury) further maintained, that if (notwithstanding some difficulties) the question what was the mind of our Lord on the subject of divorce à vinculo, was not uncertain, even when the inquiry was confined to the letter of Scripture, such a conclusion was made more clear, and was confirmed by the subsequent teaching of the Church. If they referred to the history of the Church, the authority of the Fathers and of the General Councils would be found to go for the most part in the same direction. He could produce the strongest assertions by great authorities in every century of the Christian Church—including St. Augustine, the favourite author of the noble and learned Lord at the table (Lord Lyndhurst)—that it was not lawful so to separate husband and wife that they might re-marry. And he (the Bishop of Salisbury) would justify his own opinion on the subject by quoting to their Lordships a very plain and strong passage from that great Latin Father:— Licite dimittitur conjux ob causam fornicationis, sed manet vinculum prioris, propter quod fit reus adulterii, qui dimissam duxerit etiam ob causam fornicationis."—[Aug. t. vi., p. 406.] With regard to the law of our country, about which he had been surprised to hear some doubts raised, he would remind their Lordships that there could be no question that the law of England before the Reformation was in agreement with the rule thus plainly expounded by Augustine, and that though at the time of the Reformation it was proposed in the Reformatio Legum to alter that law, the alteration, he was thankful to say, was not effected. He was satisfied from all the authorities he had consulted that according to the law of this country no divorce à vinculo matrimonii was yet allowed; and he thanked God that he had hitherto providentially prevented us from altering this law, because that law enshrined the principle that, as we believed there were no limits to the forgiveness of our sins by our Heavenly Father, so there was no limit to the forgiveness—let the sin have been ever so grievous, let the adultery have been committed under every possible aggravation—which any Christian man ought to be ready, if circumstances permitted it, to extend to a penitent wife. He knew that the general opinion was against him; but as a minister of Christ, standing there not merely as a peer of Parliament, but as an ambassador of the great Head of the Church, he was anxious to testify his solemn conviction that there was no possible offence of which a wife could be guilty that the husband—if he hoped for forgiveness himself—should not be willing as a Christian to place within the limits of condonation. There might of course be considerations which might prevent the exercise in this way of such a forgiving Christian spirit, but the law should never allow either party to be placed beyond the limits of the hope of such pardon and reconciliation. He was borne out in saying this by the same authority he had before appealed to: St. Augustine's maxim was— Tale igitur debet esse conjugium Christianorum ut nunquam tale divortium fiat, quin spes maneat reconcilationis."—[Aug. t. vi. p. 407.] He (the Bishop of Salisbury) did not, however, deny that the question now raised was surrounded with very great difficulties. That House had been accustomed to grant what were called privilegia, and he quite agreed with the noble and learned Lord at the table (Lord Lyndhurst), that if those privilegia were founded on the word of God the poorest man in the realm was equally entitled to them with the richest nobleman. But he believed that these privilegia had no such foundation and had been attended with the worst results, and that if their Lordships extended them to the poor man, so far from giving him a blessing they would give him that which would poison the happiness of his home. It was not that he would withhold a benefit from the poor, but that he would not inflict on them a curse. And this being his opinion about these so-called privilegia, he would have their Lordships do as the noble Lord who had first spoken had recommended. He would have them sweep away these privilegia, and put themselves in this respect on a level with the poor man, which was the only footing on which all Christian men ought to stand. But it was also felt by some that it was impossible for a special reason both to get rid of these privilegia, and also to maintain the law of the indissolubility of marriage. The objection to which he alluded was that if a man when separated from his wife was not allowed to marry again, he would be placed in a condition in which, unless he had the gift of continence, he must commit sin; but he (the Bishop of Salisbury) believed that every Christian man could have this gift of continence. The learned and noble Lord (Lord Campbell) by his expression of his dissent showed that he was not aware of what he (the Bishop of Salisbury) was speaking; he was speaking of a gift which any Christian man might (if placed under the circumstances he alluded to) obtain. And he (the Bishop of Salisbury) was only pressing on their Lordships' attention a truth which was witnessed to by the same authority to which he had already appealed. St. Augustine had anticipated the objection in the following weighty and stirring words— Non eos terreat sarcina continentiæ—levis erit si Christi erit—Christi erit, si fides aderit, quæ impetrat a jubente quod jusserit."—Aug. t. vi., p. 416. He (the Bishop of Salisbury) was fully persuaded that a Christian could master his circumstances and temptations, however powerless a natural man might be under such a trial; and he therefore entreated their Lordships not to be drawn by sympathy for those who were placed in such difficulties, to sanction such a measure of relief, but rather to resist any such change lest the safeguards of innocence should be sacrificed for the accommodation of guilt, and the relieving offenders from the inconveniences of sin. Then again there were other difficulties in respect to changing the law which had not been alluded to, but which ought to be considered by their Lordships before passing the present Bill. Let their Lordships consider in what position they would place the ministers of the Church of England. He did not question their Lordships' power or right to vindicate the supremacy of the law of the land, and to make enactments for all the members of the State; but he hoped their Lordships would remember that the law of the Church did not recognize the dissolubility of the marriage tie; and that questions of conscience must arise amongst the clergy, and that they had a just claim upon their Lordships to respect their scruples. At present the law of the land and the law of the Church were in harmony on this point; but if this Bill passed, it would then, it appeared to him, be impossible to reconcile what would then be the municipal law on this subject with the law of the Church. He (the Bishop of Salisbury) besought their Lordships well to weigh this, and not to place men like himself and the clergy, who were bound to set an example of loyal obedience to the laws of their country, in a position where it would, he feared, be most difficult to reconcile the conflicting claims the law of God and the law of man would have upon their consciences, He (the Bishop of Salisbury) had said thus much as a Bishop, but as their Lordships shared the responsibilities and interests of his right rev. Brethren and himself, so did his right rev. Brethren and himself share their Lordships' responsibilities and interests as legislators of this great country. He most thoroughly admitted that, next to the great functions of the Church, there was no duty more holy or more sacred than that of a legislator, and, therefore, he spoke not only as a Bishop of the Church, but as one anxious for legislation on right principles, and for the social welfare of the community; and he did most seriously believe that, if they began to legislate in the direction of this measure, they would not be able to stop here; that if they once opened the door, they would not be able to close it again. Look at the miserable results such a course had produced in Prussia. He (the Bishop of Salisbury) held in his hand a translation of a book by Dr. Tiersch, and he wished their Lordships had all read the witness he bore to the demoralising influences of the relaxation of the law of marriage in his country. He would read them one passage:— The evil has already spread in Prussia on every side, and penetrated to a great depth. Already for two generations has the seed which has been sown been ripening. The moral disgust at frivolous divorces and re-marriages is at an end with both the lower and the higher classes of the people which have sprung up under such a legislation. He (the Bishop of Salisbury) would also remind their Lordships, as the opinions of the Reformers in favour of such a change of the law had been so often alluded to, that Luther said that though the precedent given by Moses for complying with the hardness of the hearts of the Jews justified, he considered, the temporal courts in allowing such licence to false Christians, they who availed themselves of such a licence should understand that they were by such a relaxation treated, not as Christians, but as Heathens. He (the Bishop of Salisbury) quite agreed with Luther in this respect, and would only add to what he had already said, that when Moses legislated for the Jews, he was endeavouring to preserve them from falling into the state of the heathens around them, and that so his laws were an attempt to raise his people to a higher level; but that any such alteration of the law, as now proposed, in a Christian country, could only be viewed as a sinking down from a higher state—the placing God's people on that sloping path which might end in unbelief, and the loss of the qualifications of a good citizen. Whether, then, he looked at the present Bill as a Member of the Legislature of this great country, or as one of the chief pastors of the Church of God, he considered that the step their Lordships were now asked to take was a downward step, and fraught with great danger both to Church and State, and that it was therefore his duty to oppose the second reading of the Bill, and so resist this change in the old law of the Church and State of England.

THE BISHOP OF BANGOR

addressed a few observations to the House in a very low tone, and was understood to concur in the views of the most rev. Primate.

THE BISHOP OF LLANDAFF

said, he thought that the distinction attempted to be drawn between the three passages in which our Blessed Saviour's words were given was too minute to commend themselves to the persons who read those passages. It appeared to him that in the passage quoted from St. Paul that Apostle was speaking of the normal condition of marriage, and not of particular exceptions to which our Blessed Saviour had drawn attention. He felt that it was not in his power to vote for the Amendment, though he had objections to some portions of the Bill.

THE BISHOP OF DURHAM

concurred with what had fallen from his right rev. Brethren (the Bishops of Salisbury and Bangor), and as the law of the Church and the common law of England were both in harmony in proclaiming marriage to be indissoluble, he should vote against the second reading of the Bill.

THE MARQUESS OF WESTMEATH

suggested that if the Bill were read a second time a clause should be inserted extending its provisions to Ireland.

THE LORD CHANCELLOR

said, it was impossible to make a common tribunal for England and Ireland. It was his intention, as soon as they got the sanction of the Legislature to such a measure for England, to introduce a similar measure for Ireland.

THE MARQUESS OF WESTMEATH

observed that he had known several Bills for the amelioration of the law introduced having reference only to England, with a promise that a similar measure should be introduced for Ireland, but nothing of the kind had been done.

THE BISHOP OF OXFORD

said, that when he addressed their Lordships upon this question on a previous occasion, he stated that he felt some difficulty in resting his opposition to the measure on the ground of Divine prohibition, but that the preponderance of his opinion was, that the words of our blessed Lord had distinctly settled the question. Since then he had applied himself with all the diligence he could command to the study of the subject now under consideration. Day after day he had gone through the several passages of Scripture to which so much reference had been made, aided by the best light which history and authority could throw upon it, and the result of his inquiries was, that he acquiesced in the conclusions which had been stated by his right rev. Friends, and felt bound in conscience to oppose the measure. The charge of "quibbling" had been applied to the right rev. Bench, but he thought that such epithets, directed against Christian men who endeavoured to give what they knew to be an unpopular interpretation to God's word, without one earthly motive except their single desire to clear their consciences from sin, were clearly inapplicable. The "quibble," as imputed, was this:—Our blessed Lord was recorded by Matthew as having spoken, on a particular occasion, on the subject of divorce, and to have used certain words now cited in favour of the allowance of divorce. But our Lord at that time was speaking to the Jews, misled by the glosses of the Scribes and Pharisees, and he said to them that they had made void the law of Moses by their traditions with regard to the commandment which bade them honour their father and mother, and he showed them that on that subject no new commandment was required, but that they should simply return to the Mosaic code. So in this case, our blessed Lord was speaking to the Jewish race, and he said, "You have here, through the glosses of the Scribes and Pharisees, come to an understanding that you may for every cause give your wife a writing of divorce and put her away." Then he added, "but Moses never gave you any such authority; he only permitted you to put away your wife when you found uncleanness in her." The Evangelist who recorded this passage added, that afterwards our Lord retired into the house, and that the disciples went and asked him what was the law of the new kingdom on the subject of marriage. Now, here we were clearly to look for an explication of the whole matter; and then, what did our blessed Lord say? He said, that in the new kingdom there could be no such divorce of those whom God had joined as would permit either, in the life of the other, to marry. It had been urged that St. Paul wrote to the Corinthians, "Let not the wife, depart from her husband; but if she depart"—and their Lordships would observe that this was not given as a law but as an exception—"let her remain unmarried, or let her be reconciled to her husband, and let not the husband put away his wife." When the Bishops, after carefully considering this subject, therefore came to a settled conclusion upon it, he contended that they were not obnoxious to the charge of quibbling, especially when they could refer to such passages as the saying of our blessed Lord, "Every man who marries her, who is put away, committeth adultery." This brought him, however, to an important question. Was the woman who had committed adultery to be entitled, by reason of her sin, to greater privileges than those extended to other women—was the woman who had broken the vinculum by her adultery to be free to marry again, while the woman who had been unjustly put away was not to marry again? He had understood his noble and learned Friend Lord Lyndhurst to say, that the Popes and Councils of the Church had determined that marriage was not indissoluble. Perhaps, however, in such a case as this, where his noble and learned Friend had evidently been brushing up his ecclesiastical lore, he (the Bishop of Oxford) should be pardoned for starting a lawyer's objection, and for saying that he could not take these cases upon the mere assertion even of his noble and learned Friend. They must be cited before he could attach any weight to them. [Lord LYNDHURST: There was the case of Napoleon I., who married again in the lifetime of Josephine.] He received this case as cited, but thought it would not be reckoned as a very primitive authority upon the question. The re-marriage of Napoleon I. could certainly not have been pronounced upon or favourably viewed by any very early Father. Instead of believing that the Popes and the Councils of the Church laid down the dissolubility of marriage, the result of his own inquiries led him to a di- rectly opposite conclusion. The Apostolical canons laid it down distinctly that no marriage could be so dissolved as that the parties could marry again in the lifetime of each other. Justin Martyr, St. Innocent, the Council of Carthage, 407 years after the death of our Lord, St. Jerome, and St. Chrysostom, all held this language, and his noble and learned Friend's great authority, St. Augustine, over and over again said the same. It was indeed quite impossible that language could be stronger than that used by St. Augustine upon this point. In his commentary upon St. Paul, after alluding to the Apostle's teaching on the subject, he said, "Hœc verba Apostoli toties inculcata, toties repetita, vera sunt, plana sunt, sana sunt," and added, "It is lawful, therefore, for a man to dismiss his wife for the cause of fornication, but the vinculum of the marriage lasts on, and it is not lawful for him to marry." [Lord LYNDHURST: In the early part of his works he does not say so, though towards the close of his works he may.] His noble and learned Friend had fallen into a considerable error on this point, as any great man might when he did not thoroughly understand his subject. No doubt he had been misled by marginal notes, by indexes, ponderous volumes, tomes. St. Augustine laid down, the indissolubility of marriage in every part of his writings, and especially in his commentary on the 5th chapter of St. Matthew, in those two grand treatises which had always formed for all Christendom the great storehouse of argument upon this subject. He then proceeded in his Retractions, which were about the last things St. Augustine wrote, though placed by the editors at the beginning of his works, and if he had changed his mind, he would certainly, with that extraordinary honesty which belonged to him, have there owned to it. He confessed that he had fallen into some minor errors, but he never said that he had altered his opinion that a marriage once contracted was by God's ordinance indissoluble. It must be borne in mind, too, that St. Augustine did not rest his question upon any notion of sacramental evidence. Noble Lords thought this alleged indissolubility of the marriage tie a mere invention of the Middle Ages, adopted by the Church of Rome at a particular time to bear out the sacramental doctrine. This was not so, however. It was made to rest upon God's ordinance. He (the Bishop of Oxford) had the misfortune to miss a portion of his noble and learned Friend's argument on a former occasion; but if what had been attributed to him by the reporters were correct—and he did not suppose that those gentlemen whose reports were commonly so accurate had done him injustice—his noble and learned Friend was carried away a little in one of his flights. He had quoted a curious passage, apparently to show that it was doubtful whether St. Augustine believed that the great crime therein spoken of was a crime; but his noble and learned Friend did not say that St. Augustine introduced that same story with the words quod hominum sensus excludit—conveying by this his opinion that, according to the common sense of man, this was a sin against God. The argument was that there existed a high probability that the words of our blessed Lord referred marriage back to its original institution, and intended to state that it was indissoluble; and there was a certainty that He said that a divorced woman could not after adultery be married again. The stream of Church authorities, at their highest and purest sources, before the Middle age corruption set in, was clear and decisive in declaring this to be the doctrine of the Church, not resting upon any sacramental notions, but upon Scripture.

LORD LYNDHURST

What I said was, that St. Augustine holds distinctly that adultery, whether committed by man or woman, is a justifiable cause of divorce. His only doubt I affirmed to be as to whether the parties should afterwards have the right to marry again.

THE BISHOP OF OXFORD

remarked, that the whole question depended upon the right of the parties to marry again. All he desired to press upon their Lordships was that his most learned Friend had not shown from St. Augustine that adultery was a justifiable ground for re-marriage. If their Lordships liked to call separation à mensâ et thora divorce, he granted that adultery was a sufficient cause of such a divorce; but if they meant that it gave the power to re-marry, then he maintained that it conferred no such authority, and it was because he believed that many noble Lords understood his noble and learned Friend to argue that St. Augustine justified divorce, and not merely separation, that he ventured to call attention to this point. This being so far the case, he must, of course, vote against the second reading of this Bill, which he believed justified and legalized the marriage of the divorced woman, undeniably forbidden by our Lord. He thought this would settle the question for those who received the word of revelation. What hope would there be for the prosperity of this country if, in even one instance, the law of Christian Britain was made at variance with the law of Christ? This, however, was not his only objection to the Bill. He objected to it as a whole, and not alone because of its details. He objected to it because he thought it was dealing with a great subject in a most imperfect way. Even if he were prepared (which he was not) to grant the dissolubility of marriage, he must still oppose this Bill; he must oppose it on the ground that the marriage law of this country was a stain upon our statute-book. He believed that our law operated in the grossest and most unjustifiable way upon the woman, taking away from her those rights which God intended her to possess, and of which no human legislation ought to deprive her. But, because he felt indignant at the continuance of those odious, and worse than odious—unjust—laws which, in cases of actions for criminal conversation, condemned undefended and defenceless absent women, was he therefore to consent to still worse laws? He did feel indignant at the present state of the law, but still he felt bound to refuse his assent to a remedy which proposed to leave the greater portion of the present wrong unredressed. The Bill, too, came before them with a certain amount of false pretence, because it professed to put all classes of the community on an equality in this respect; while the fact was, that as it stood it would not afford, as it pretended to do, any relief to the great mass of the people of this country, and only gave more extended privilegia to the rich. The noble and learned Lord, no doubt, meant nothing of the kind, but he was a very sanguine man, and regarded the productions of his brain much as a too partial parent watched the progress of his spoiled child. The Bill, however, did come before the House under something like false pretences, because it assumed that the same right to redress should be given to the poor man as was possessed by the rich, which was not the case, and which was an impossibility. The very machinery of the court proposed to be established would be a bar to it. Let the House remember the counsel who must be employed in such causes—men of the greatest eminence, and who would naturally expect the heavy fees to which their abilities and learning entitled them. Then, again, there was the expense of bringing wit- nesses. It was true a suggestion had been made that commissions might issue to take evidence upon the spot; but were their Lordships prepared to set aside the only machinery which at present formed the great bar to collusion? At present the greatest difficulty in that class of cases was to guard against collusion, but the plan of commissions would destroy the only safeguard which existed. At present the safeguard against collusion was that one of the two parties was bound in heavy recognizances to society and did not dare to forfeit them, because if she did she was cast out upon her admission of the guilt imputed to her. That safeguard, however, would not descend to the lower classes, who were not bound by fashion or governed by any secondary motives which would operate to prevent them from obtaining a licence for adultery under the proposed law. Just let the House consider the effect of the law. Every lawyer would say that, if this Bill were passed, in the end such causes must go down to the County Courts. Were their Lordships prepared for that? and yet if once they entered upon this course it was impossible to say where they would stop. At present the law said that all marriages were indissoluble, and only made exceptions in certain cases where the Legislature interfered by exceptional action. But the Bill proposed to declare it to be the right of every Englishman to have that relief, and it was impossible to suppose that such relief should be practically confined to men with more than £2,000 a year. He reminded their Lordships that, through God's blessing, they had inherited a nation and society in which, with all its many faults, it could truly be predicated that there was no nation in Europe in which upon the whole family purity was so much prized as among the mass of the people of these islands. That was the case under the existing law, and he would ask was it the course of wise and prudent men to enter rashly upon a change of that system in order to introduce one the consequences of which they could not entirely foresee? The history of every nation which had pursued that course showed that increased facility produced increased occasion for divorces, while at the same time morals were lowered, purity sullied, and the honour of married life invaded. He would warn them to consider what had been the consequences of such a course in France during the last century, and begged them to remember the words of Burke, who said that it had been the wisdom of every Christian Legislature to add every conceivable safeguard to the purity of marriage, but the anti-Christian synod then holding its orgies in France had begun by breaking down all those restraints that made marriage mysteriously sacred, and by granting facilities for divorces, which destroyed the only securities for the purity of married life. France, however, taught by the dreadful experience of the past, had long recoiled from the fatal step she had taken, and was even now engaged in the attempt to re-establish the sanctity of the marriage tie—and thus while Christian England was being called upon to render marriage dissoluble, France, with experience of the miseries entailed by such a course, was making marriage indissoluble as the only means of preserving its sacredness. The noble and learned Lord (Lord Campbell) had stated that all Protestant Churches held marriage to be dissoluble; but he had not enumerated them. Perhaps the noble and learned Lord did not call the Church of England a Protestant Church, for she had never inculcated such a doctrine. If, however, they looked to the particular Church of Protestant Europe (Prussia) which had taken an opposite course, what did they find? Divorces increasing as facilities were increased. He might be told that this Bill did not propose to grant divorces for all causes; but so it had been in all countries. In all, the door at first had been opened only to admit divorces for adultery, but the consequence had been that all other causes were finally admitted. Reference had been made to the Reformatio Legum, but it was unfair to quote an isolated passage and to ignore all other portions of the book. While that code proposed to make adultery a ground of divorce, it also proposed in cases where a man had seduced a woman he should, upon proof, be condemned to marry her, and, if that were impossible, then that one-third of his goods should be made over to her. Such was the code which they were told was an exceedingly good one. He thought it was scarcely fair that those who held different opinions should be referred to such a book as a true interpretation of the word of God. It proved that the minds of great and honest men, in the first mastery of new truths, were almost intoxicated by the greatness of the draught; that in casting away a multitude of errors they were in imminent danger of losing hold of a multitude of truths; and when, therefore, they were told to go to the Protestant Churches for a lesson upon this subject, he asked them to observe how the two systems had worked. The operation of the one they saw in England, with its purified Church and its great amount of matrimonial purity; and the effects of the other they beheld in Prussia, labouring now with difficulty to get back again into that state from which they were asked at the present moment to depart. Although in Prussia the proposition did not go as far as to bring back the law to the state in which it stood in England, it was a retrograde movement in that direction, carried as far as those who had the management of it could advance. Surely they had cause enough to do that. Many of their Lordships might have seen that very day, in one of these remarkable publications which were frequently sent to the daily press, a statement of the condition of things in Prussia. The result was that between 1820 and 1830, in a population of 12,000,000 there were 3,000 divorces, or twenty-seven to each 100,000; and if they struck out that part of Prussia in which the Roman Catholic religion prevailed, they would find that there was one in every 247 married couples divorced within a year. Were they, then, to be sent by the noble and learned Lord on the woolsack to what he was pleased to call all the Protestant Churches, if such had been the manner in which the system had worked for a long period among the singularly moral, calculating and passionless people of the Prussian provinces? We had received from God, in this respect, a great advantage—in laws purified from the abuses of the Middle Ages, and yet retaining the savour of ancient Christianity strong upon them. We had, under those laws, seen a population growing up the like of which could not be exhibited in Europe for domestic virtue and married purity. Their Lordships were asked to change altogether the condition of every married person in England. The Church taught the people that marriage was indissoluble except by death; but they were now to be told that they might take one another, not for better and for worse, but until the sin of one might enable him or her to put the other away and marry again. It might be long before the people would take advantage of the new law, for such changes seldom appeared in their full effects all at once; but slowly, step by step, it might change the whole moral aspect of the nation, and deteriorate the temper of the people. He therefore asked their Lordships to pause. Let them pass laws that would give the woman her rights, but avoid mixing them up with those disputed and difficult questions which stirred the consciences of men. Let them not by a side-wind, while professing to remove the injustice which was done to women, abolish that marriage law which from the first had been the rule in Britain. He implored them to consider one other point. The Bill, if passed, would leave the conflict created between the law of the Established Church and the law of the statute-book unadjusted. It would place churchmen in an extremely difficult position. They were at present under a law to which it was their first duty to yield a ready obedience, and to which, by the direct action of legislation, they were required to declare their assent and consent. That ecclesiastical law was left where it was, and yet it was now proposed to subject them to a law which, if obeyed, would compel them to violate it. No set of men ought to be put in such a position, but especially those who should be leaders and examples in straightforwardness of conduct, and in simplicity of conscientious obedience at once to the laws of the State and to the laws of the Church of which they were members. The Bill, in short, was one of those haphazard pieces of legislation which changed great institutions without seeing the end of what it proposed, and which never failed to involve the people subjected to them in many and serious difficulties. He entreated their Lordships to remember that the question before them was a foundation one. It was not one of those little things which floated upon the surface of society; it reached its very roots, and must stir it for ages to come; and therefore, believing that the Bill contradicted, certainly and unnecessarily, one important fact of the teaching of our Lord—that it probably contradicted another—that it unsettled the whole of our existing law—that it made provision for all kinds of future entanglements—that it professed to give relief to persons whom it would never reach—and that it left the question of marriage in a hopeless state of confusion—he entreated their Lordships to pause before they took one step in advance, and to vote with him that the Bill be read a second time that day six months.

THE BISHOP OF LONDON

said, that their Lordships would excuse him if, even at that late hour, he ventured to address some observations to them, for he felt that he should not be discharging his duty if, since his views upon this subject had not been expressed by any of his right rev. Brethren who had yet spoken, he did not state the reasons which would induce him to support the Bill. He thought that the argument derived from the Scriptures was one which could very readily be ascertained. The Sermon on the Mount—a portion of Scripture which he had yet to learn was not directed to all Christians—contained an assertion which he believed every Protestant Church regarded as decisive upon the question before their Lordships. And when in other passages they found a general statement that it was a crime to put away a wife, they must remember that general statements were seldom to be taken as holding in all cases in that qualification. If they were told that all children should honour their parents, it did not preclude instances of parents being wholly undeserving of the honour of their children. If they were told that there should be no separation between husband and wife, there might still be cases of such foul iniquity as to effect the utter disruption of the marriage tie. As to the testimony of the Fathers of the Church, he believed there was scarcely any subject on which a whole string of the Fathers could not be brought on one side and a whole string upon the other. If they turned to the case of the Duke of Norfolk in the State Trials, they would find Bishop Cousens quoting the Fathers quite as conclusively as the right rev. Prelate (the Bishop of Oxford), and as to the authority of the Mediæval Church, but on the opposite side. When it was so easy in practice to dissolve marriage by making it invalid, as the noble Lord on the woolsack had stated, they could hardly wonder that no difficulty was found in declaring it to be formally indissoluble. It was said that the law of the Church of England was that marriage was indissoluble. Of course there was no provision for the dissolution of marriage, but he was not aware of any authority for this broad statement, and those who argued from the fact that there was no provision for divorce without an Act of Parliament, to the doctrine that marriage was held to be altogether indissoluble, greatly overstated the case. If such were the law of the Church of England, why were the clergy called upon to re-marry persons whose marriages had been dissolved by private Acts. It appeared plain that the mighty convulsion with which they were threatened by the right rev. Prelate ought to have come long ago, because the dissolving of marriage by what, to borrow a phrase from his right rev. Brother's speech, he might call haphazard legislation, had been in action for the last 150 years. In his conscience he believed that the time was come when that sort of exceptional arrangement ought to be done away with. It was, he was prepared to maintain, the universal opinion of Protestant Churches that in some grave cases marriages might be dissolved, and in those cases he thought it better that the dissolution should be pronounced by such a Court as was proposed by this Bill than by private laws. The present system was likely to do far more harm than good, and an opportunity now opened of satisfactorily settling the question upon an intelligible and religious basis. He therefore hoped their Lordships would read the Bill a second time.

THE DUKE OF ARGYLL

said, that seven right rev. Prelates had now given their opinions on this question, a majority of whom were in favour of the course indicated by this Bill, and among those who opposed it, the right rev. Prelate, the Bishop of Oxford, had changed his position. In the last debate the right rev. Prelate stated his opinion that the words of our Saviour gave express sanction to the dissolubility of marriage. It had been then well remarked that it was a moral and religious wrong to set about, by human invention, to checkmate that which was declared to be the Divine permission. The right rev. Prelate found his position untenable, and very naturally, under the influence of his long-sustained objections, was now disposed to give greater weight to the argument that the dissolubility of marriage was opposed to the doctrines of the Church. He was himself disposed to agree with his noble and learned Friend (Lord Campbell) that no rational man could read the passage in St. Matthew without coming to the conclusion that distinct permission was given to marry again in case of divorce by reason of adultery. He had some reason to complain of the language of his right rev. Friend (the Bishop of Oxford) when he said the Bill came before the House under false pretences, inasmuch as it would still fall short of giving to the poor equal facilities with the rich. But even if it were true, which he (the Duke of Argyll) did not admit, that the benefits of this Act could not be enjoyed by the poor, it was no argument against the Bill, so far as it went. The present system is at least infinitely more exclusive; it reaches, let us say, some 5 per cent of the population. If the benefits of this Bill should reach only some 50 per cent of the population, if it were conceded that it was founded on a right principle it was a great step in the right direction. One objection to the new tribunal was its cost, arising out of its holding its sittings in London, which, the right rev. Prelate said, would preclude the poorer classes at a distance from availing themselves of its jurisdiction. But that objection did not hold good. Look at the case of Scotland. Though parties seeking divorce in that part of the kingdom had to go to a central court situate in Edinburgh for that purpose, and had often to travel great distances, it was an established fact that of the whole number of divorces in Scotland the vast majority had been cases among the poorer classes. From November, 1836, to November, 1841, the Court of Session in Edinburgh pronounced ninety-five sentences of divorce agrave; vinculo—the parties concerned all belonging to the humbler classes, except in a single instance, in which a lady of rank sought divorce from her husband. The inconveniences from having to attend a central court were quite as great—indeed, greater than they would be in England, where the facilities of railway travelling are greater in proportion; and, therefore, he saw no reason why the remedy should not be as cheap in England as in Scotland. There was but one plain and obvious ground for limiting the courts through which divorce should be accessible. The danger of collusion must be met as far as possible. The cause, therefore, must be heard by some court capable of sifting the evidence. But if the local courts were or should become capable of sifting the evidence, he saw no reason why the power of granting divorce should not be extended to them. When he read in The Times of that morning the communication from the correspondent of that journal at Berlin on the subject of the operation of the law of divorce in Prussia, he well knew that it would be used by his right rev. Friend (the Bishop of Oxford) in the debate of that evening to support the view he took of this question, But he (the Duke of Argyll) denied that the case of Prussia was in the slightest degree relevant to the case under consideration in their Lordships' House. For example, the not having any children and mutual consent was one of the grounds of divorce in Prussia; but we in this country grounded ourselves upon principle. We said we had a clear intimation in the Divine law of one ground, and one ground alone, on which divorce was permitted, and we thought that where there was the Divine permission we ought to grant it; but, because we admitted this one ground of divorce, authorized as it was, there was no reason for fearing that we must afterwards admit other grounds of divorce. He would only further express his entire concurrence in an observation which had fallen from the venerable Prelate who presided over the Church of England, when he expressed his gratitude that on this question we had the comfort and guidance of a clear expression of the Divine will. There were many questions within the debatable land which lay between politics and religion, on which that House should always be ready to defer to the opinion of those Fathers of the Church who had seats in the House. There were other questions in which no difficulty could arise, and with respect to which he thought it ought to be not only the privilege, but the duty of the lay members of our Christian Legislature to form their own view of the words of Scripture and of their duty as a Legislature, and, having formed an opinion, to act upon it with decision and energy. The present was one of those cases; and if their Lordships on his (the Duke of Argyll's) side of the House had not had on this occasion one member of the episcopal bench on their side—if they had found all the right rev. Prelates trammelled with doubts and difficulties derived from the traditions of a corrupt age, he should still have asked the House to do two things—first, to grant the remedy of divorce on that one ground on which Scripture had permitted it to be given; and, secondly, not to attempt to extend the ground of divorce beyond that clear point.

THE BISHOP OF LINCOLN

My Lords, I shall trespass very briefly on your indulgence; but I am unwilling that we should go to the vote without a word of explanation, lest others of your Lordships should share the errors into which the noble Duke below me (the Duke of Argyll) has fallen, in supposing the amount of difference of opinion on this Bench to be much greater than it is. I believe that my right rev. Brethren are all agreed (with the exception of my right rev. Brother on my left, the Bishop of Salisbury), that divorce is per- mitted in Scripture in the case of the adultery of the wife. We all agree, as far as I am aware, that it is not permitted to the divorced adultress to marry again—at any rate with the partner of her guilt. This prohibition I, for my part, consider so essential, and so important to public morality, that I find myself obliged to vote against the second reading of a Bill which omits to provide for it.

Legislators, my Lords, must not be optimists. They must treat human nature, not as it might be, not as it ought to be, but as it is. And taking it as it is, can we doubt that the permission to the adulterous parties to marry will greatly increase the temptation to adultery? Look, for example, at the numerous cases of ill-assorted marriages, where the parties discover, when too late, that they have made their choice and have chosen amiss; when the woman especially finds that she has thrown her one cast in life, and has lost. Suppose a wife, under such circumstances, solicited by the tempter, will it not add tenfold power to the temptation should the thought cross her mind, that, by yielding, she may not only free herself from an unhappy, perhaps a hateful marriage, but may be enabled to contract another, which, in the moment of temptation, at least, promises to be one of happiness?

I will take this opportunity of alluding to another omission in this Bill—if omission it can be called. Much has been said—much more than they deserve—of the abuses of the Ecclesiastical Courts. Much has been said, especially, of the need of legislation on the subject of divorce. But much more has been said—and most justly—of the evils attending the present system of trials for criminal conversation, when the infidelity of the wife and the guilt of the adulterer are measured by a money standard. But this Bill omits to abolish these trials. The noble and learned Lord, indeed, removes them from their present position, and places them after the divorce is obtained, instead of before it; but this is only to make their character more objectionable than it is. At present the excuse and justification of an action for damages is, that it is a necessary step to an application to your Lordships for a Bill of divorce; but the husband who, after obtaining the divorce, shall, under the provisions of this Bill, bring an action for criminal conversation, will be self-condemned of seeking to compensate himself for his dishonour by a mere money payment.

Let us have no more, my Lords, of these disgraceful actions, the reports of which in the newspapers are the only authorized immoral publications—the only ones which the strong and impartial arm of my noble and learned Friend, the Lord Chief Justice, cannot reach. Let not twelve respectable men be put together in the jury-box to estimate, as best they may—while the ingenuity of counsel on both sides is chipping away the character of either party—the money value of a husband's dishonour and of a woman's guilt. Place the adulterer in the criminal's dock; let him stand in the face of the Court by the side of the forger and the burglar, who are not more guilty than he. Let the people understand that adultery is not a foible to be treated lightly, nor a fault to be compensated by a money fine, but a crime against the laws of man, as well as a sin against the laws of God.

On Question, "That 'now' stand part of the Motion?"

Their Lordships divided:—Contents 47; Non-Contents 18: Majority 29.

Resolved in the affirmative; Bill read 2^a accordingly, and committed to a Committee of the whole House on Monday next.

CONTENTS.
Canterbury, Archbp.	St. Asaph, Bp.
Cranworth, L. (L. Chancellor.)	Winchester, Bp.
Granville, E. (L. President.)	Panmure, L. (U. P. S.)
	Abinger, L.
Harrowby, E. (L. Pr. Seal.)	Aveland, L.
	Belper, L.
	Brodrick, L. (V. Midleton.)
Breadalbane, M. (L. Chamberlain.)
	Calthorpe, L.
Westmeath, M.	Campbell, L.
	Clandeboye, L. (L. Dufferin and Claneboye.)
Spencer, E. (L. Steward.)
Abingdon, E.	Congleton, L.
Airlie, E.	Crewe, L.
Amherst, E.	Foley, L. [Teller.]
Clarendon, E.	Hunsdon, L. (V. Falkland.)
Munster, E.
Romney, E.	Lyndhurst, L.
Stanhope, E.	Polwarth, L.
	Ponsonby, L. (E. Bessborough.) [Teller.]
Eversley, V.
Sydney, V.	Rivers, L.
	Stanley of Alderley, L.
Bangor, Bp.	Sundridge, L. (D. Argyll.)
Bath and Wells, Bp.
Carlisle, Bp.	Talbot de Malahide, L.
Kilmore, &c., Bp.	Truro, L.
Llandaff, Bp.	Wensleydale, L.
London, Bp.	Wycombe, L. (E. Shelburne.)
Ripon, Bp.

NOT-CONTENTS.
Norfolk, D. (E. Marshal.)	Beauchamp, E.
	Carnarvon, E.

Hardwicke, E.	Durham, Bp.
Mayo, E.	Lincoln, Bp.
Nelson, E. [Teller.]	Oxford, Bp.
Powis, E.	Salisbury, Bp.
Talbot, E.
	Petre, L.
Dungannon, V.	Redesdale, L. [Teller.]
	Stafford, L.
Chichester, Bp.	Wynford, L.

House adjourned at a quarter-past Ten o'clock till To-morrow, half-past Ten o'clock.