DIVORCE AND MATRIMONIAL CAUSES BILL.—COMMITTEE.

HL Deb 25 May 1857 vol 145 cc785-832

Order of the Day for the House to be put into Committee, read.

Moved, "That the House do now resolve itself into a Committee on the said Bill."

THE DUKE OF NORFOLK

—My Lords, when the subject of this painful Bill was last before your Lordships' House, I took the liberty of stating what was the doctrine of the Roman Catholic Church on this subject—I was met by the declaration that the doctrine of that Church might be a sufficient guide and motive for myself upon the matter, but that in an assembly, the vast majority of which consisted of Protestants, it was hardly to be accepted by them. I admit the justice and the propriety of the observation, and I am anxious to address myself to the subject from a purely Protestant point of view. My Lords, I think there will be no inconsistency in my doing so, because, though the Church of Rome holds both oral and written tradition, she holds not less the written than she does the oral; and, although I should indeed be puzzled to prove some of her teaching by Scripture alone, this is not one of those cases. Here, by Lords, I maintain that the scripture teaching, even according to your own authorised version, is positive and clear upon the subject, and I may address myself to that alone without relying upon the authority of any church. My Lords, I ask, what is the basis of the present Bill? I have seen, my Lords, the Report of the Committee of your Lordships' House, and the Report of the Royal Commission. I have in vain sought to find in either of those reports any reference to Scripture. I have found a minute essay upon the state of the English law on the subject—the English law which you are going to alter. I have found an inquiry into the laws and customs amongst all the countries in Europe; and, speaking generally, I find that the Roman Catholic countries entertain one view, and the Protestant countries another. Now, it is this absence of evidence from Scripture which I seek to remedy by the proposal of which I have given notice. I do not think it necessary to dwell much upon the importance of the subject, for, although your Lordships would not, perhaps say that it is a sacrament (although it is referred to as a sacrament in two of the homilies of your Lordships' Church), and I will not press that matter, yet I know that there is not one of your Lordships who will not allow that it is a holy and sacred institution, an institution which is to be treated as a religious institution. Now, my Lords, there is more than one opinion upon this subject. Those who heard the able speeches of two of the right rev. Prelates upon the second reading of the Bill—those who heard the lucid and accurate scriptural arguments which those noble Lords adduced, must be aware that there are two opinions upon the matter. If you will grant us this Committee, I undertake to prove that there is scriptural authority against the main principle of the Bill which you are going to pass. I cannot be surprised at your Lordships not admitting the authority of the Roman Catholic Church; it is a very old matter, long since rejected. I cannot be surprised at the Fathers meeting with some misusage at your Lordships' hands; but I own I am surprised at your Lordships' seeking to alter that which is laid down by the Church of England, without reference to her own rule of faith upon religious teaching. Now, my Lords, I can conceive two arguments in opposition to Motion. One of those arguments is, that this House is not the proper place for theological discussion. My Lords, I seek to remove the theological discussion from the body of the House to a more proper place, namely, a committee-room. Your Lordships are, in fact, constituting yourselves the theological judges, and you are seeking to act without evidence, whilst I ask you to have evidence for what you are about to do. There is another view, which I think may be opposed to the Motion which I now make, and that is, that the exceptional legislation of your Lordships' House may be produced as an authority that there is nothing contrary to the Word of God in this measure. My Lords, I find that the custom was introduced in the reign of Charles the Second, at a time when, to say the least of it, morals were much relaxed. The first case which your Lordships' House passed, seems to be involved in some considerable obscurity. The second case, my Lords, was very strongly contested—seventeen Bishops out of twenty voted against it. The King appears to have been favourably disposed towards it. It was a case of some importance, and there were a number of Catholic heirs not less objectionable than now. It was carried after a great struggle, the King being favourable to it, by a majority of only eight; seventeen Bishops being, as I have said, against it. Then, my Lords, it seems to have worked on, as those things do work on, being little thought of, and succeeding generations began to forget the scriptural argument altogether, until, at last, people do not look at the question with half the attention which they pay to a turnpike Bill; they are satisfied with the loose opinions which they hear about it. My Lords, I do not desire to trespass longer upon your Lordships, and I thank you for the attention which you have been so good as to afford to me. I will state to your Lordships that, at any time reluctant to intrude upon you, I have been particularly so upon the present matter. I consider it one of the most painful subjects upon which your Lordships can adjudicate, and I wish that my conscience would have permitted me to stand entirely aloof from it. That, however, is not the case, and I therefore move— That the Bill be referred to a Select Committee, for the Purpose of taking Evidence and resolving as to whether the Permission for divorced Persons to marry again has any Warrant in Holy Scripture.

THE BISHOP OF ST. DAVID'S

said, he had been unavoidably absent from the discussion on the second reading of the Bill; and as he did not entirely coincide with the views, so far as he had been able to become acquainted with them, of any of the noble Lords or of the right rev. Prelates who had addressed the House upon that occasion, he hoped their Lordships would then allow him briefly to state his views upon that important question. The observations he had to make would apply in a special manner to the Motion of the noble Duke who had just submitted his proposal to the House in a manner that did him infinite honour. The noble Duke had by his Motion, and by the language he had employed in its support, proved his own generous and noble and truth-loving spirit, and had shown, on a question on which he might without impropriety or inconsistency have stood aloof, that, while he was attached to his own Church, not from education or routine, but from the sincerest conviction of his heart, he was ready to submit the doctrines of that Church to the same test which Protestants were in the habit of applying to the doctrines of theirs. But he (the Bishop of St. David's) should state two reasons for which he felt I himself unable to assent to the Motion of the noble Duke. In the first place, he would observe that he could see no probability that the course proposed by the noble Duke would lead to any satisfactory result. It appeared to him that all that could be disclosed before the Committee was already patent to every one; namely, that the question was a very difficult one, and one which admitted of very wide differences of opinion which it was utterly hopeless to attempt to reconcile:—that, unfortunately, was a fact already sufficiently manifest. There was, however, another objection which applied to the substance of the noble Duke's Motion, with regard to which he wished to state his views with great deference and humility; for he was not sure how far they might meet with the concurrence of his right rev. Brethren or of their Lordships generally—but they had forced themselves strongly on his mind, and he believed they were at least deserving of a little of their Lordships' consideration. The Motion of the noble Duke involved a proposition which, as far as he could see, had been assumed in the House and out of it as an unquestionable truth, but for which he should take the liberty of saying that he could find no sufficient foundation either in authority or in argument. That Motion assumed that our Blessed Lord had intended to take upon himself the character of a temporal legislator, and that all the precepts and prohibitions contained in the records of his teaching had been designed by Him to be embodied in the code of every Christian legislature. Now he (the Bishop of St. David's) believed that they would not be raising, but, on the contrary, very much lowering, the dignity of that Divine Person if they were to place him on a level even with Moses, much more with any uninspired legislator, or to suppose that He had assumed for himself any such character. He believed that they would be not raising but lowering the dignity of the sacred records which contained His word, His injunctions, and His prohibitions, by turning them into a letter which might become a dead letter, but which they sought to enforce by the sanction of civil authority and penal legislation. If he were told that such was the design of Our Lord, he asked for proof of that proposition. He had been unable j to find any proof of such a doctrine in Scripture; he could not find it in reason; it did not appear to him to be in harmony with the general tenor of our Lord's teaching; and; he thought it ought to be proved before it was assumed. If they were to act upon such, a principle, he wanted to know where their Lordships would draw a satisfactory line at which to stop? They had in history considerable experience of the consequences of such attempts. There had been periods of great religious excitement when human legislators had thought themselves bound to enforce the injunctions and prohibitions of the Gospel by secular authority; but he believed it was agreed on all hands that those attempts had been unsuccessful and unfortunate in their results. Most persons would probably admit that they had been injudicious in their means and processes. But he would venture to go further, and say that they were faulty in their fundamental principle. He believed that they had proceeded on a misconception of the whole spirit and design of I the Gospel, and that they tended to fetter the freedom of Christianity by the letter of the Mosaic law. Let it not, however, be supposed that he did not attach the greatest possible value to every precept and every prohibition of our Divine Master, or that he did not consider him, in another sense, as a Jaw-giver—namely, in the sense that everything he enjoined was binding on the consciences of Christians. That was one thing; but it was another thing to say that a Christian legislature was bound to embody everything of that kind in its legal enactments, and that whatever Our Lord had said would be sinful was to be prohibited by the law, and that whatever He had said ought to be done was to be enforced by the same authority. He humbly submitted that the duty of a Christian legislature, as such, was to conform to the general principles and spirit of the Gospel, and, as far as lay in its power, to educate the people committed to its charge, with a view to that end: but that in the adoption of measures for that purpose they were left to the exercise of their own discretion. But, although, for the reason he had just stated, he could not deny, but on the contrary contended for the right of their Lordships to pass such a Bill as that under their consideration, he must confess that he regarded the measure as a whole with feelings of strong apprehension and much anxiety. If the noble and learned Lord on the woolsack had, in the first instance, confined his Bill to the purpose of redressing the grievances, restoring the rights, and bettering the position of one of the parties to the nuptial contract, he would have dealt with a subject of sufficient difficulty and sufficient importance to have merited his undivided attention in one Session of Parliament; and after he had settled that matter he might have proceeded to take into his consideration the still more embarrassing question of the general state of our marriage law. But he (the Bishop of St. David's) could not but think that the tendency and almost inevitable effect of the passing of the Bill as it now stood would be to familiarise the minds of the people of this country with divorce, as under certain circumstances a common incident to marriage, and he did not believe that was a feeling which could conduce to the general well-being of the community. He thought, on the contrary, that however the measure might be reconcilable with the letter of certain passages of Scripture, it was unquestionably repugnant to the spirit of the Gospel, which undoubtedly went to preserve the marriage contract stable and inviolable, so far as it was in the power of man to make it so. He could easily understand that the noble and learned Lord on the woolsack, and other noble and learned Lords in that House, who had spent their lives in the administration of the law, should be desirous of correcting the existing anomalies in the state of the law, and should attach great importance to the establishment of a new court of justice, and consider that as a panacea for the evils they wished to remedy. But he must own that, in his eyes, the anomaly by which those noble and learned Lords were so much offended was rather a recommendation of the present state of the marriage law. No doubt, in the abstract, regularity was preferable to anomaly; as, in the abstract, a good road was preferable to a bad one. But practically that would depend on the end to which it led those who travelled over it; and if it terminated in a quagmire or the edge of a precipice, it might be better to shut up the road altogether than to mend it. He did not think the noble and learned Lord's Bill would or could have the effect of multiplying the number of happy marriages in this country—he apprehended it would and must open the door to much collusion, and he thought that it failed even to satisfy the abstract principle on which it was founded, and to accomplish the object for which it was framed. It would evidently be limited in its operation to a certain class in the community; and it was not at all clear that this was the class by which it was most wanted. Under these circumstances, though it was too late to offer any opposition to the measure, he could not but lament that it had been introduced, and felt himself bound to deprecate it as unnecessary and inexpedient.

THE EARL OF HARROWBY

said, he could understand the right, rev. Prelate feeling the deepest solicitude in reference to the Bill under consideration, for it was one which nearly concerned the well-being of the whole community, and was especially worthy the grave consideration of those who were the appointed guardians of the public morals; but he thought the right rev. Prelate's opposition to the measure would have been more appropriate to the second reading than to its present stage, and it seemed to him to be founded on mistaken apprehensions as to its probable effect. With respect to the manner in which the noble Duke (the Duke of Norfolk) had brought his Motion under the consideration of the House, he must say it was one which would only serve to add to the general esteem in which the noble Duke was held wherever he was known. The noble Duke had expressed himself with that manliness, candour, good sense, and simplicity of purpose by which he had always been distinguished, and which could not fail to induce in their Lordships' minds the wish that he might in future take a more frequent part in their deliberations. But, with respect to the Motion of the noble Duke, he (the Earl of Harrowby) would ask what kind of evidence he would wish to call before the proposed Committee? Would the witnesses whom the noble Duke would call be the Prelates of his own Church, and those of the Established Church? and if so, would their Lordships be guided by testimony of that kind on the question in dispute? The matter was one on which religious opinion was very much divided, and he (the Earl of Harrowby) doubted whether their Lordships would be bound by the evidence given before such a Committee. Again, much would depend upon the manner in which such a Committee was constituted, as to the construction they might put upon the important texts of Scripture bearing upon the question in dispute. For those reasons it was quite clear they could not refer to a Committee a question of this kind. He contended, on the contrary, it was one which ought to be discussed and decided in a Committee of the whole House, when they came to the particular clause to which the noble Duke's Motion referred, and he therefore asked their Lordships, as they had already sanctioned the second reading, to negative the Motion, and proceed at once with the Bill.

LORD REDESDALE

believed the question propounded by the noble Duke was precisely such an one as was most proper to be referred to a Select Committee, and that if a Select Committee were appointed, the result must be an opinion in accordance with the noble Duke's views. Last year, in the Committee, he (Lord Redesdale) proposed the following Resolution:— That any enactment whereby marriage with a divorced woman shall be permitted will give legal sanction to that which God himself has pronounced adultery, and ought not to be agreed to. And the Committee feeling themselves unable to negative the proposition would not allow the question to be put. Therefore, if the noble Duke pressed his Motion to a division, he (Lord Redesdale) would vote in its favour. He entirely agreed with the right rev. Prelate, (the Bishop of St. David's) that a Christian Legislature was not bound to enforce by positive legal enactment everything inculcated in the Scriptures; but, at the same time, he thought that when an existing law of the land prohibited something which was believed to be forbidden by the Scriptures, they were not justified in sanctioning what they believed was prohibited by Scripture, and what was certainly prohibited by law.

THE DUKE OF ARGYLL

, as a member of the Committee, must be allowed to state that their Lordships would make an erroneous inference if they supposed, from the noble Lord's remarks, that he had raised the same point before the Committee as was raised in the Motion of the noble Duke. The noble Lord, on that occasion, proposed a Resolution to the effect that it was inexpedient to sanction the principle of divorce à vinculo matrimonii at all. How many members of the Committee voted with the noble Lord? Only three out of a Committee of twelve. That division in his (the Duke of Argyll's) opinion, afforded a fair test of the opinions of the Committee. He trusted their Lordships would not agree to the Motion of the noble Duke, because even if successful, the House would not be bound by the decisions of the Select Committee. He regarded this Motion as an attempt to get rid of the Bill altogether; but although, in the opinion of some noble Lords, there might be many imperfections in the measure, he thought the proper course would be to consider it in Committee, when its defects might be amended.

VISCOUNT DUNGANNON

said, he could not but regard this measure as calculated to sap the foundations of all social, moral, and religious obligations, and he should therefore feel bound to vote for the Motion of the noble Duke. If the fate of the Bill depended upon that Motion, his determination would not be changed, for he regarded some of the provisions of the measure with the greatest alarm, believing that they would facilitate illicit connections, and would, to a considerable extent, disturb that social and domestic happiness which had hitherto prevailed among the married class in this country.

LORD DENMAN rose, and commenced an address to their Lordships, but presently referred to a written paper, from which he proceeded to read his observations. On loud cries of "order," the noble Lord said he was merely referring to the papers to refresh his memory, and to prevent his opinions from being misunderstood.

THE EARL OF DERBY rose to order, and said, the noble Lord was not only violating the rules of the House by reading his Speech, but he stated distinctly that he meant to read it, in order to prevent misapprehension.

LORD DENMAN

said, he referred to notes in order to refresh his memory.

THE EARL OF DERBY

said, that unless the noble Lord obtained permission to read a speech, he must call upon the House to enforce its orders.

LORD DENMAN

read a few more passages from his written paper, when he was interrupted by general cries of "Question" and "Order," and after expressing his regret that he had not been better acquainted with the forms of the House, and his belief that the Bill would be attended with the greatest benefit to all classes of the community, he resumed his seat.

On Question, That the words proposed to be left out stand part of the Motion? Their Lordships divided: Contents 123; Not-Contents 26: Majority 97.

Resolved in the Affirmative.

CONTENTS.
Cambridge, D.	Minto, E.
Canterbury, Archop.	Morley, E.
Cranworth, L. (L. Chancellor.)	Munster, E.
	Portsmouth, E.
	Rosse, E.
Cleveland, D.	Scarborough, E.
Somerset, D.	Seafield, E.
	Shaftesbury, E.
Ailesbury, M.	Spencer, E.
Breadalbane, M.	Stanhope, E.
Cholmondeley, M.	Wilton, E.
Westmeath, M.
Westminster, M.	Eversley, V.
Winchester, M.	Falmouth, V.
	Gordon, v. (E. Aberdeen.)
Airlie, E.
Albemarle, E.	Hardinge, V.
Bantry, E.	Hill, V.
Belmore, E.	Hutchinson, V. (E. Donoughmore.)
Bradford, E.
Burlington, E.	Sydney, V.
Chichester, E.	Torrington, V.
Clarendon, E.
Cowper, E.	Bangor, Bp.
Craven, E.	Bath and Wells, Bp.
Derby, E.	Carlisle, Bp.
Effingham, E.	Hereford, Bp.
Essex, E.	Kilmore, &c., Bp.
Fortescue, E.	Lichfield, Bp.
Graham, E. (D. Montrose.)	Llandaff, Bp.
	London, Bp.
Granville, E.	St. Asaph, Bp.
Grey, E.	St. David's, Bp.
Harewood, E.	Winchester, Bp.
Harrington, E.	Worcester, Bp.
Harrowby, E.
Innes, E. (D. Roxburghe.)	Alvanley, L.
	Aveland, L.
Leicester, E.	Belper, L.
Malmesbury, E.	Berners, L.

Blantyre, L.	Lyndhurst, L.
Bolton, L.	Manners, L.
Boyle, L. (E. Cork and Orrery.)	Minster, L. (M. Conyngham.)
Brodrick, L. (V.Midleton.)	Mont Eagle, L. (M. Sligo.)
Byron, L.	Monteagle of Brandon, L.
Calthorpe, L.
Camoys, L.	Panmure, L.
Campbell, L.	Polwarth, L.
Carew, L.	Ponsonby, L. (E. Bessborough.) [Teller.]
Churchill, L.
Clandeboye, L. (L. Dufferin and Claneboye.)	Raglan, L.
	Ravensworth, L.
Clifton, L. (E. Darnley.)	Rivers, L.
Clonbrock, L.	Rossie, L. (L. Kinnaird.)
Colchester, L.	Saye and Sele, L.
Colville of Culross, L.	Sefton, L. (E. Sefton.)
Congleton, L.	Silchester, L. (E. Longford.)
Dacre, L.
Delamere, L.	Somerhill, L. (M. Clanricarde.)
Denman, L.
De Tabley, L.	Sondes, L.
Downes, L.	Stanley of Alderley, L.
Foley, L. [Teller.]	Saint Leonards, L.
Hatherton, L.	Sundridge, L. (D. Argyll.)
Hunsdon, L. (V. Folkland.)
	Talbot de Malahide, L.
Kenyon, L.	Vivian, L.
Ker, L. (M. Lothian.)	Walsingham, L.
Kilmarnock, L. (E. Erroll.)	Wenlock, L.
	Wensleydale, L.
Lilford, L.	Wycombe, L.

NOT-CONTENTS.
Norfolk, D.	Dungannon, V.
Bath, M.	Chichester, Bp.
Salisbury, M.	Durham, Bp.
	Oxford, Bp.
Abergavenny, E.	Salisbury, Bp.
Carnarvon, E.
Dartmouth, E.	Oriel, L. (V. Massereene.)
Fitzwilliam, E.
Leven and Melville, E.	Overstone, L.
Mayo, E.	Petre, L.
Nelson, E. [Teller.]	Redesdale, L. [Teller.]
Pomfret, E.	Stafford, L.
Portarlington, E.	Vaux of Harrowden, L.
Powis, E.	Wynford, L.
Talbot, E.

House in Committee accordingly.

Clauses 1 to 5 agreed to.

Clause 6 (Jurisdiction over Causes Matrimonial to be exercised by the Court of Marriage and Divorce).

EARL GREY

said, it appeared to him to be a defect in the measure that these questions were to be decided on by a court the Judges of which were to be taken from other courts. He thought it a bad practice to constitute Boards or Courts of persons whose time was at present fully occupied by other business. The result was that the persons supposed to transact the business had practically very little to do with it. By the present clause the new court, which was to deal with all these questions, was to consist of the Lord Chancellor, the three chief clerks of the Common Law Courts, and one Judge in ordinary—the Judge of the new Probate Court. It was quite true that the single Judge in ordinary might deal with all cases except those which involved dissolution of marriage; but in the latter cases the attendance of three members of the court was necessary. The time of the Lord Chancellor and the three chiefs of the Common Law Courts was already fully occupied, and from the appointment of these Judges it might be inferred that the amount of business expected to come before the court would be very small. They had been told, moreover, that the object of the Bill was to remove a great anomaly and scandal, by which those only who could pay a large price for it were enabled to obtain divorce, and that whatever remedy was provided, the tribunal which was to render it must be accessible to all. If so, on what grounds could it be expected that the amount of business would be small? It was perfectly clear that if the tribunal was constituted as now proposed one of two things must happen—either such a scale of fees would be created as would debar all persons who could not command a large sum of money, or the court must very soon be choked up by the mass of business that would come before it—for he was afraid that the moral condition of the country was not so satisfactory but that, if you gave increased facilities for divorce, there would come before the court a much greater number of cases than it could possibly dispose of. He must say that he had great doubts as to the policy of giving such facilities as this Bill proposed for divorce à vinculo matrimonii; but if they were to give that remedy at all they were bound, upon their own principles, to provide the means by which it would be extended, not to one class, but to all. He thought that kind of divorce which simply implied separation ought to be made more accessible than this Bill made it to the humbler classes of society. Their Lordships were often disgusted by reading in the newspapers reports of cases of extreme cruelty on the part of husbands to their wives, and he was afraid that the punishment inflicted on the brutal husband was not unfrequently an aggravation of the evil to his wife, as he went back to her more exasperated than before. The proper remedy for such cases was to enable the wife to obtain a separation, and so put her in the way of maintaining herself without the fear of her drunken or profligate husband returning and taking away her earnings. The present Bill failed to provide for this. Indeed, no one Judge could dispose of the number of cases of this kind that would occur. The right course would be to allow a husband and wife, in such circumstances, to apply to the ordinary tribunals for a separation, instead of being compelled to go to a special tribunal appointed for that purpose. The ordinary tribunal might have the power to hear the case and then report the result to some central authority that might be constituted, that authority being authorised to grant a divorce à mensâ et thoro.

THE LORD CHANCELLOR

said, that his noble Friend seemed to suppose that the court would be more expensive because it was presided over by some of the superior Judges; but there was no reason why the court should be more expensive than if it were presided over by inferior persons. It was only in causes for obtaining a divorce à vinculo matrimonii that the full court would be required to sit. The number of cases would undoubtedly be increased. He would not attempt to gloss over that. But the question was whether the number would be so greatly increased that the business of the court could not satisfactorily be got through with. Now, no human being could possibly divine beforehand what the amount of business in the new court would be; but, judging from his (the Lord Chancellor's experience, it had always been found to be much more easy to add to the number of functionaries in a court that was found to work well, than get rid of functionaries when they had become useless. The Lord Chancellor already practically exercised the same jurisdiction as that proposed. As to the Chief Justices from the other courts, if the duties of the new court were found to occupy too much of their time, he (the Lord Chancellor) would have no objection to alter his Bill, so that one of the puisne Judges might occupy the place of his chief. There would be no difficulty as to that. He had only to say that the example of Scotland, which was set forth as a model in this respect, had been followed. There all cases of divorce came before the Court of Session. The system worked well, and he was certainly not prepared in this country to confer on any inferior tribunals questions of such delicacy and nicety as would come to be considered under the provisions of this Bill.

The EARL OF DONOUGHMORE

asked whether it was intended to reform the ecclesiastical law of Ireland, by extending the intended provisions of the present Bill to proceedings in divorce à mensâ et thoro in that country?

THE LORD CHANCELLOR

said, it was his intention, if this Bill should receive the sanction of Parliament, to introduce a corresponding measure relating both to divorce and to testamentary jurisdiction in Ireland.

EARL GREY

said, that the answer of the noble and learned Lord that the expenses of the new court need not necessarily be great, had not satisfied him. The expense of bringing up witnesses to London must be great. It appeared to him that one of two objections must prevail—either the scale of expenses must be kept so high as to shut out the less wealthy classes, from the new court, or if the expenses were lowered so as to admit those classes the court would be so overwhelmed with work that it would speedily be swamped.

LORD CAMPBELL

thought that if their Lordships were agreed that it was expedient to transfer the privilege of dissolving marriages to a new tribunal, the court proposed by the Bill was the best that could be formed for that purpose. Judging from the paucity of causes for divorces à mensâ et thoro in the present court, he doubted whether the new court would be at all overborne by the weight of business.

Clause agreed to.

Clauses 7 to 14 agreed to.

Clause 15. (Wife divorced à mensâ et thoro to be considered as to Property a Feme Sole).

LORD ST. LEONARDS moved the Amendments of which he had given notice—

1. 1. "To confine the Provision in Section XV. to Alimony, and to strike out the Authority to grant a Divorce à mensâ et thoro in the Case thereby provided.
2. 2. "To provide for a Wife's Earnings and Property becoming her separate Estate after her Husband's Desertion for One Year.
3. 3. "To take away the Husband's Right of Action for Damages for Crim. Con., and to make Adultery with a married Woman a Misdemeanor, and to give the Husband the Right to prosecute and the Court Power to impose a Fine, which is to become a Crown Debt; but the Court may direct it to be applied, as far as it may be required or will go, in Payment of the Costs of any Proceeding by the Husband to dissolve the Marriage.
4. 4. "To provide, that if in any Case the Husband shall not prosecute but shall take Proceedings to obtain a Divorce, he shall be bound to 799 bring both his Wife and the Adulterer before the Court, and the Court shall have Power to impose a Fine on the Adulterer not exceeding £500, and to dissolve the Marriage; such fine to become a Crown Debt—but, if the Court shall so direct, to be applied as far as may be necessary in Payment of the Husband's Costs of Suit."

The following Clauses to carry into effect the proposed Amendments Nos. 2, 3 and 4.

1. To follow Sect. XIV.

"Where a Wife is deserted by her Husband, and that Desertion has continued without reasonable Excuse for One Year or upwards, and the Wife is maintaining herself by her own lawful Industry, if the Husband, or any of his Creditors, or any Person claiming through the Husband, interferes or attempts to interfere with the Wife in respect of her Earnings, or of any Property acquired by her during her Husband's Desertion by Means of her Earnings, or to make her Earnings or any such Property as aforesaid liable for any Debt or Default of her Husband, then it shall be lawful for the Wife to make Application to any Justice of the Peace, and thereupon it shall be lawful for the Justice, if he shall think fit, upon hearing the Parties, to give to the Wife an Order in Writing, under his Hand, restraining the Husband, Creditor, or other Person aforesaid from interfering or attempting to interfere with the Wife's Earnings or Property in manner aforesaid; which Order shall be in force for Six Months from the Date thereof, unless sooner discharged or varied by an Order of Two or more Justices of the Peace in Petty Sessions, and while in force shall protect the Wife and her Earnings and Property aforesaid against all Actions, Suits, Executions, and Proceedings whatever brought or taken by or on behalf of the Husband, Creditor, or other Person aforesaid; and any such Wife shall be at liberty from Time to Time to apply for a Renewal of such Order at the Expiration of the former Order; and any Person acting in wilful Disobedience to any such Order as aforesaid while in force shall be liable to a Fine not exceeding Pounds, and in default of Payment to Imprisonment for any Time not exceeding Months. Any Wife, whether she has made any such Application as aforesaid to a Justice of the Peace or not, may present a Petition to the Court of Marriage and Divorce, praying for Protection and Relief with respect to her Property on the Ground that she has been deserted by her Husband, and that the Desertion has continued without reasonable Excuse for One Year or upwards; and the Court on being satisfied with the Truth of the Allegations of the Petition may, it it shall see fit, make an Order granting her such Protection and Relief as aforesaid; and, subject to any special Directions by any such Order given, the Wife shall, by virtue of such Order, be and be deemed to have been during the Continuance of her Husband's Desertion of her in the like Position in all respects with regard to Property and Contracts, and suing and being sued, as under the Provisions of this Act she would be in case of a Divorce à mensâ et thoro obtained, on her Petition.

THE LORD CHANCELLOR

said it was extremely difficult to make a provision in these cases which would not lead to greater evils than it was sought to remedy. The provisions of his Bill gave a wife a divorce à mensâ et thoro in case of being deserted by her husband for two years; Having obtained such a divorce the woman was restored to the position of a single woman in respect of her rights over her own property and earnings; but he did not think it would be well to take away the conjugal rights of the husband until such divorce had been obtained. To adopt the Amendment would he to render the law a dead letter. The repeated applications to a justice for a renewal of the order would swallow up in costs the whole of a wife's earnings, and lead to difficulties which would render the whole law delusive.

LORD ST. LEONARDS

said, he did not see where difficulties could arise. There could be no difficulty in discovering whether a husband had deserted his wife or not, and whether the wife earned money by her industry requiring protection. The points which the magistrate would have to decide were of the simplest nature. His clause was to prevent an unworthy husband from sweeping away every penny of his wife's earnings. The Bill of his noble and learned Friend had not the slightest bearing on this part of the question; and, moreover, his noble and learned Friend had introduced the divorce à mensâ et thoro contrary to the recommendations of the Select Committee, and against his own measure of the last Session. In other countries a woman could obtain from a Judge that protection against a husband under such circumstances which he (Lord St. Leonards) asked their Lordships to give in his Amendment as regarded men who wilfully deserted their wives. This clause did not go anything like the length of the Bill which had been introduced in the other House, and which went to place the whole marriage law of this country on a different footing, and would, in fact, give a wife all the distinct rights of citizenship. He believed the measure to be a most mischievous one, and he proposed his Amendment as going as far as was desirable, and so prevent a greater evil.

LORD CAMPBELL

said, the object of the Amendment was most meritorious; but he believed it would not work any good; while it would produce, in his opinion, the greatest confusion.

THE BISHOP OF OXFORD

said, he should support the Amendment, because it would give the woman protection for earnings, without driving her to the courts to seek divorce; and it was only a just protection to a woman in this position. He believed the woman would submit to almost any wrong before she sued for a divorce; whereas, if the Amendment was adopted, she would be enabled to take the intermediate step, and save her earnings for her children. He earnestly hoped, therefore, the House would adopt the Amendment.

THE EARL OF HARROWBY

said, he thought the Amendment insufficient for the purpose, because it would only protect the wife's earnings of one year.

THE BISHOP OF ST. DAVID'S

asked the noble and learned Lord who moved the Amendment, to explain how the property of the wife could be secured from her husband if her person were not secured. If the husband came to her home and seized any little treasure she might have in her drawers, what was there to prevent his squandering it?

LORD ST. LEONARDS

said, it was the property and not the person to which the clause applied. The Amendment left the husband that which by his desertion he had proved he did not value—namely, the wife's person, and secured that which he desired to steal—namely, her property.

THE DUKE OF ARGYLL

said, the Amendment enacted that the justice should "hear the parties." But one of the parties would necessarily be absent in the event of abandonment on the part of the husband. Now, the Committee recommended in their Report, that the property of the wife should be protected only after a divorce à mensâ et thoro had been obtained.

EARL GREY

said, he could not see how, when a man who had deserted his wife, returned and claimed to live with her, it was possible to prevent him from having a claim to her property. But, on the other hand, he thought the arguments of the noble and learned Lord (Lord St. Leonards) were conclusive to show, that in the humbler ranks of life some prompt remedy was highly necessary to protect a wife who had been deserted by her husband from having any little property she might have acquired in his absence seized by him, as at present, whenever he chose to do so. Besides, he could not understand why some local tribunal, upon due cause shown by the wife, and after the husband, if he chose to appear, had had a full opportunity of being heard, should not be empowered to decree a separation à mensâ et thoro. He would not, however, give that power to a single justice, however high his opinion was of the magistracy of England as a body. The County Courts, however, administered justice in a perfectly satisfactory manner to all parties, and he did not see why the jurisdiction should not be given to them.

THE EARL OF POWIS

said nothing was more common than cases of desertion in the practice of petty sessions, and there was no difficulty whatever in issuing a warrant upon the application of the parish officers. There could, therefore, be no difficulty in protecting the wife through the medium of the bench of magistrates. He, therefore, supported the Amendment.

VISCOUNT DUNGANNON

said, if there was one class of persons who more than another required legislative protection, it was that of poor women in the humbler ranks, who, deserted by their heartless husbands, were struggling to maintain themselves, and often, it might be, a young and helpless family. He was, therefore, glad that a clause of this description had been brought forward by his noble and learned Friend (Lord St. Leonards), and if it should pass the House, it would be almost the very best thing the Bill contained. He hoped the noble and learned Lord would divide upon it.

LORD WENSLEYDALE

was understood to say, that the principle of legislation was to legislate as was best on the whole, and in this view the law gave the whole property to the husband. He thought the Bill made a sufficient provision to meet the case, and should oppose the introduction of the Amendment.

THE MARQUESS OF SALISBURY

expressed the hope that Lord St. Leonards would persevere with his Amendment, to which he gave his entire approval.

THE LORD CHANCELLOR

thought the clause impracticable. In the first place, until the husband returned the clause gave no jurisdiction. It was not until he returned to his wife, forced himself upon her, and took possession of her property, that the clause gave her a right to apply for protection. If he did not at once take possession of her property and sell it, then the clause conceded to her an order which would prevent him from touching it. What was to become of it the clause did not say. Whether it was to be treated as a common fund, chargeable with the maintenance of any children that there might be, or whether the wife was to be permitted to spend it as she pleased, was left quite undetermined. So again, at the expiration of the six months the woman might apply for a renewal of the protection; but nothing was said in the clause about the circumstances under which the renewal should be granted or refused. He (the Lord Chancellor) fully admitted the evil complained of—an evil which he was as anxious as any one to remedy; but he did not think the proposed clause would answer the end the noble and learned Lord had in view. The real defect was the want of some cheap tribunal to deal with cases of the kind referred to. He defied their Lordships to give protection to the earnings of a woman deserted by her husband until they had first altered her status. He wished that that status should be called, not a "divorce à mensâ et thoro," but a "separation." The moment they decreed a separation they could give the wife protection; but so long as a husband had a right to force himself upon her it would be impossible to make any law that would protect her earnings.

THE BISHOP OF ST. DAVID'S

regretted that the noble and learned Lord should have made his clause apply to a mere hypothetical case. Why should a woman's remedy be dependent upon her husband's coming back?

LORD ST. LEONARDS

denied that the clause was hypothetical: it provided against a given state of things, in which no remedy was required until the husband returned and endeavoured to seize upon her effects. Whilst his desertion of her lasted, and she maintained herself, she wanted no remedy. If she had any property she could maintain herself. A poor woman, deserted by her husband, acquired by her own industry a little furniture, took perhaps a small shop, or two or three rooms, and by her daily labour, or the sale of a few small articles, managed to maintain herself and children. The husband, finding that a little property was accumulated, just enough to excite his avarice, came with a broker, sold his wife's goods, and stripped her of everything. The clause would enable the woman to defeat the intended sale of her property. The noble and learned Lord asked what was to become of the property? There would be no property in the common meaning of the word. The case contemplated was where the woman had saved some £20 or £30, a sum which it was ludicrous to talk of as a common fund for the maintenance and education of the children. The case he wished to provide for, then, was not the case of a wife deserted by her husband who might come back and rob her of all she had accumulated during his absence, but of a wife deserted whose husband had come back and attempted to plunder her of her little savings. As to the difficulty of giving protection, he would appeal to the common sense of his noble and learned Friend whether there could be any real difficulty. Questions of desertion came before the magistrates every day. The clause had nothing to do with the question of separation, but to give a remedy to the woman for a most notorious wrong. He could assure their Lordships that he had given the clause very great consideration, though it might be still imperfect; but it was as a question of principle that he would press it on the House.

THE EARL OF DERBY

said, that what had just been said had removed a difficulty he had felt, which was, that the remedy would be too slow. If he now understood rightly, the clause proposed that the woman should be freed from the liability of having her goods taken by her husband on his return after deserting her. He thought the remedy would be of no use unless the woman was already provided with it at the time at which the husband returned with the legal power of injuring her. He understood now that at the husband's return the woman had merely to go before the justice and get a temporary safeguard not as to separation, but merely to guard against the evil of the moment. This was a remedy for a very serious evil. But if the wife was to wait for her remedy till her husband returned, the remedy would not be sufficiently immediate. But his noble and learned Friend now proposed to take the division upon the principle that a woman should have protection against the sudden return of her husband, without any reference to divorce or separation. He was prepared to give in favour of the principle as cordial and unhesitating a vote as he had ever given since he had a scat in that House.

EARL GRANVILLE

said, that the clause was altogether without precedent, and it had been shown by those most competent to deal with it that it was impracticable. Even the noble and learned Lord did not seem quite pleased with it. They were asked to agree to that clause, merely because there was a principle involved which they all wished should be carried out if it could be done; but all that he had heard had strengthened his conviction of the extreme difficulty of carrying it out, and he objected to pass a clause which all admitted to be impracticable.

THE BISHOP OF OXFORD

said, he could not think the difficulty pointed out by any means insuperable. It might be removed by making the protection dependent on the wife, showing that she had reason to fear that her husband, or his creditors, contemplated the seizure of her property.

EARL GRANVILLE

suggested that the noble Lord should withdraw his clause, which had been admitted both by the noble Earl and the right rev. Prelate to be faulty, and should himself propose a corrected one at another stage.

THE EARL OF WICKLOW

also thought the clause had better be postponed, and an amended one submitted to the House.

EARL GREY

said, he thought the House ought to adopt some simple and cheap mode by which either a husband or wife might apply to a local tribunal for relief. He hoped, therefore, his noble and learned Friend (Lord St. Leonards) would not press his clause at present, but endeavour, on the Report, to bring up a clause which would, in the way he had now suggested, deal with the whole evil. If Her Majesty's Government would undertake to consider the subject, with the view of providing a suitable remedy, he would vote with them on the present occasion, should his noble and learned Friend go to a division; but if they would not undertake this, then he would be compelled to vote for the clause, however defective he might think it to be.

THE LORD CHANCELLOR

said, he had no hesitation in saying that the Government would most seriously consider the matter before the next stage of the Bill. But he hoped that in saying so he should not be misunderstood. No one could feel more anxious than he did to arrive at the conclusion which his noble and learned Friend aimed at, but he saw clearly the difficulties that stood in the way. He believed that it was impossible to come at the result he wished to arrive at, unless a now status were constituted, in addition to the two that already existed. Till they could adopt some mode of having a separation between man and wife, every attempt of his noble and learned Friend to secure the object he had in view would be delusive. All he could say was that he would most seriously consider the question; but he could not say that he should be able to come to a satisfactory result. More than this he could not say, as he was most desirous not to raise hopes which he might not be able to realize.

THE BISHOP OF OXFORD

hoped the House would observe that the noble and learned Lord had not promised anything which could be construed into a desire to carry out the wishes of his noble and learned Friend (Lord St. Leonards). The point which he promised on the part of the Government to consider was, the mode of effecting the separation of a wife from her husband; but that was not what his noble and learned Friend's clause aimed at. The noble and learned Lord (the Lord Chancellor) spoke of a third status; but no new status was meant by the clause now before the Committee. The object which the noble and learned Lord had in view was one quite different from that provided for in the clause, and therefore he hoped it would be clearly understood that the matter which the Government had agreed to consider was one of a very different kind from that contended for by his noble and learned Friend.

EARL GRANVILLE

said, the statement of his noble and learned Friend (the Lord Chancellor) was made at the suggestion of the noble Earl (Earl Grey), who recommended that the clause should be withdrawn, and that Her Majesty's Government should seriously consider the question. His noble and learned Friend had stated accordingly that he was willing to take the matter into his serious consideration, provided, of course, the clause were withdrawn. If that step were not taken, then they must divide the House.

LORD ST. LEONARDS

said, that the principle involved in his clause was one on which he should divide the House sooner or later, and he thought it would be more convenient to have their Lordships' decision now.

The noble and learned Lord consented to certain alterations, suggested by the Bishop of Oxford, in the clause, which then stood as follows:— Where a Wife is deserted by her Husband, and that Desertion has continued without reasonable Excuse for One Year or upwards, and the Wife is maintaining herself by her own lawful Industry, it shall be lawful for the Wife to make Application to any Justice of the Peace, and show Cause that she has Reason to fear that her Husband or her Husband's Creditors will interfere with her Earnings, and thereupon it shall be lawful for the Justice, if he shall think fit, upon hearing the Parties, to give to the Wife an Order in Writing, under his Hand, restraining the Husband, Creditor, or other Person aforesaid from interfering or attempting to interfere with the Wife's Earnings or Property in manner aforesaid; which Order shall be in force for Six Months from the Date thereof, unless sooner discharged or varied by an Order of Two or more Justices of the Peace in Petty Sessions, and while in force shall protect the Wife and her Earnings and Property aforesaid against all Actions, Suits, Executions, and Proceedings whatever brought or taken by or on behalf of the Husband, Creditor, or other Person aforesaid; and any such Wife shall be at liberty from Time to Time to apply for a renewal of such Order at the Expiration of the former Order; and any Person acting in wilful Disobedience to any such Order as aforesaid while in force shall be liable to a Fine not exceeding Pounds, and in default of Payment to Imprisonment for any Time not exceeding months.

On Question, whether the said clause shall be inserted? Their Lordships divided:—Contents 52; Not-Contents 44: Majority 8.

Clause agreed to.

CONTENTS.
Cleveland, D.	Chichester, Bp.
Norfolk, D.	Durham, Bp.
	Hereford, Bp.
Bath, M.	Kilmore, &c., Bp.
Salisbury, M.	Llandaff, Bp.
Westmeath, M.	Oxford, Bp.
Winchester, M.	Salisbury, Bp.
	St. Asaph, Bp.
Amherst, E.	St. David's, Bp.
Carnarvon, E.	Winchester, Bp.
Dartmouth, E.
Derby, E.	Berners, L.
Graham, E. (D. Montrose.)	Blantyre, L.
	Bolton, L.
Hardwicke, E.	Colchester, L.
Harrington, E.	Colville of Culross, L. [Teller.]
Leven and Melville, E.
Malmesbury, E.	Delamere, L.
Mayo, E.	Denman, L.
Morton, E.	Downes, L.
Munster, E.	Kenyon, L.
Nelson, E.	Lyndhurst, L.
Pomfret, E.	Oriel, L. (V. Massereene.)
Powis, E.
Romney, E.	Petre, L.
Seafield, E.	Redesdale, L.
	Somerhill, L. (M. Clanricarde.)
Dungannon, V.
Hardinge, V.	Saint Leonards, L.
Hutchinson, V. (E. Donoughmore). [Teller.]	Vaux of Harrowden, L.

NOT-CONTENTS.
Cranworth, L, (L. Chancellor.)	Albemarle, E.
	Burlington, E.
	Chichester, E.
Ailesbury, M.	Clarendon, E.
Breadalbane, M.	Effingham, E.
Cholmondeley, M.	Grenville, E.
Westminster, M.	Grey, E.

Harrowby, E.	De Tabley, L.
Innes, E. (D. Roxburghe.)	Foley, L. [Teller.]
	Hunsdon, L. (V. Falkland.)
Minto, E.
Shaftesbury, E.	Lilford, L.
Wicklow, E.	Manners, L.
	Minster, L. (M. Conyngham.)
Eversley, V.
Sydney, V.	Overstone, L.
	Panmure, L.
Carlisle, Bp.	Ponsonby, L. (E. Bessborough.) [Teller.]
London, Bp.
	Rivers, L.
Belper, L.	Saye and Sole, L.
Byron, L.	Stanley of Alderley, L.
Calthorpe, L.	Sundridge, L. (D. Argyll.)
Camoys, L.
Campbell, L.	Talbot de Malahide, L.
Clandeboye, L. (L. Dufferin and Claneboye.)	Vivian, L.
	Wensleydale, L.
Congleton, L.

On Clause 15, (Divorce à Mensâ et Thoro by reason of desertion of the Wife.)

LORD ST. LEONARDS

objected to the power given by the clause, and preferred that proposed by the Bill of last year, which gave power to the Court to grant alimony in certain cases of desertion of a wife, but not divorces. He therefore proposed, according to the noble and learned Lord's own view last year, to confine the provision in this section to alimony, and to omit the authority to grant a divorce à mensâ et thoro in the case therein provided.

THE BISHOP OF OXFORD

agreed with the noble and learned Lord, and considered the power given by the clause as most monstrous. A man might be absent from this country upon perfectly legitimate business, and his wife might be persuaded by some cunning person to ask for a divorce, which, under this clause, would be granted, without the husband having any opportunity of opposing it, or even of knowing anything of it.

THE LORD CHANCELLOR

said, the objections of the right rev. Prelate would not apply, because the Court must be satisfied that the desertion was a bona fide one, and there was no more probability that they would decide upon an ex parte hearing than the present Courts did.

VISCOUNT DUNGANNON

considered the clause as it stood a very dangerous one, as affording opportunities for collusion. It showed more than any other the dangerous consequences which were to be apprehended from this Bill.

THE MARQUESS OF WESTMEATH rose to propose the Amendment of which he had given notice; namely— And be it enacted, That in any Case where any Husband and Wife shall have been separated for Twenty Years and upwards by any Sentence à mensâ et thoro, without Condonation or subsequent Cohabitation, it shall be lawful for either or both of the said Parties to marry again: Provided always, that nothing in this Act contained shall be construed as intended to cancel or alter any Settlement or other arrangement of the Property of either Party, or to place in Doubt the Validity of any Jointure or Dowry of any married Woman ensured to her by her till then existing Marriage, nor to forfeit for her any Immunity of existing Dignity or Privilege; but the Relief intended by this Act shall be confined to authorize the Parties so separated, or either of them, to contract a Second valid Marriage, founded upon the Dictum of Holy Writ, 'That it is not well for Man to be alone.' He thought that under the existing state of the law such an Amendment was necessary. Noble Lords might possibly not admit its necessity, but he would undertake to say that it would be only just. He quite went with the majority of their Lordships in thinking that the property of a wife as well as everything else relating to her should be protected from unjust or unkind treatment on the part of her husband. But he was prepared to prove from examples, and to forfeit his existence should he fail, in the opinion of all just and candid persons in so doing, that it was in the power of any woman who was separated from her husband by a divorce à mensâ et thoro to act in such a manner as to make her husband's life totally unendurable. This Bill was no sooner bruited—that is to say, this Session of Parliament was no sooner imminent, and it was ascertained that this Bill, or something like it was to be introduced to their Lordships' House—than a book was put forth of 200 pages, which was surreptitiously published—that is to say no printer's name was affixed to it—but bearing the name of the lady who did him the honour to call herself by his (the Marquess of Westmeath's) name. It was sent to all the clubs; and within the last fortnight a severe, and, as he thought, libellous attack had been made upon him in consequence in the columns of a most respectable newspaper, naming him and connecting him with the Bill that was now before their Lordships. This was why he now took the liberty of proposing that clause, and showing to their Lordships the necessity for its adoption. That newspaper, very properly, the next day but one after he had given notice of his intention, took a very fair line, and gave him (the Marquess of Westmeath) to understand that public opinion upon the matter should be suspended pending his notice. From first to last this book contained the grossest perversions of matters where they related to fact, and some of the most unjustifiable untruths that could be put together to blast and ruin the reputation of the man who was the subject of it. The book was dedicated to his noble and learned Friend (Lord Lyndhurst) who sat underneath him, and another noble and learned Lord who was not present. Their Lordships might think it a very serious thing for a man sitting in his place to be the subject of accusations which, if true, would make him unfit to move in any respectable circle of society, and disqualified to take his seat in their Lordships' House. Now, it was doubly incumbent upon him to prove what he had stated. In the first place, he stood in the situation of a man whose reputation and comfort in life had been dealt with by an institution which their Lordships were now about to abolish, and therefore he had the better claim to ask their Lordships' indulgence on the present occasion. He knew very well that it was impossible to say that their Lordships were not always willing to extend their consideration to any Member of their Lordships' House who might seek to set himself right before he presumed to come and take his seat amongst them. Now, this book bore the name of a most respectable person of the name of Ridgway. It was a most respectable name; and how it happened that the name of a respectable publisher, or rather depositary, of this book could have been attached to it he (the Marquess of Westmeath) could not tell. He must have been grossly imposed upon, for otherwise he would not have consented to publish such a book. He (the Marquess of Westmeath), on the 1st of May last, as he was coming from Dublin, just as he was stepping on board the steamer, a friend brought him a Dublin newspaper, in which a notice of this book was among the literary announcements. It consequently became his duty, the day after he arrived in London, to seek to obtain a copy. He sent upon two occasions—

LORD REDESDALE

(Chairman of the Committee) rose, and said he felt it his duty to call the noble Marquess to order. He could well believe their Lordships would, on a proper occasion, afford the noble Marquess an opportunity, if he wished it, of putting his own conduct in the light in which he desired it to be held; but when the House was in Committee on a Bill, it was hardly allowable to permit the noble Marquess to introduce matters in which he was personally concerned. He (Lord Redesdale) therefore trusted that the noble Marquess, in moving this clause, would confine himself to such remarks as fairly bore upon the subject under consideration, and not enter into a discussion upon a topic which, however much he might desire it, was irrelevant, and which their Lordships would probably permit him to bring under their notice on a more fitting occasion.

THE MARQUESS OF WESTMEATH

said, that he was perfectly satisfied that the noble Baron thought he was doing his duty in interrupting him. But what he (the Marquess of Westmeath) was about to say were reasons why they should adopt this clause; he was about to prove to their Lordships that, the present state of legal existence of a woman separated from her husband. à mensâ et thoro, particularly by the instance which he proposed to adduce, unless he were interrupted, and prevented from so doing, was a state of the law which ought not to be allowed to continue in this country, but which ought to be repealed; and repealed in such a manner as to make sure that, after a woman had been so separated, she should not be permitted to make use of that situation, being a wife without a husband, to injure and asperse his character, and to destroy his reputation, so as to make him unfit for a seat in their Lordships' House. If he proved this, he should have fulfilled the purpose which he proposed to himself when he rose to address their Lordships. The book set out at starting by saying in so many words that he was a villain. Was he not right in stating this as an argument for the alteration or improvement of the law? If so, he was prepared to bring forward sis other irrefragable proofs of the proposition if he were not interrupted in doing so. He did not mean, and he had no wish, to break the rules of their Lordships' House. But he thought that his arguments and proofs were strong, and that he ought to be permitted to go on to show why his Amendment ought to be the law of the land.

THE EARL OF DERBY rose to order. He was sorry to have to interrupt the noble Marquess in his vindication of himself before their Lordships' House; but he was quite sure his noble Friend would see, on a moment's reflection, that the subject he was introducing was exceedingly painful to the House, and one which he (the Earl of Derby) thought must be not less painful to the feelings of his noble Friend himself. He thought his noble Friend would feel the difficulty of tracing any connection between his own case and the clause he was proposing. What his noble Friend complained of was a series of scurrilous libels against his character, for which the law as it stood already gave him a remedy; but the clause he was now proposing would not afford him the slightest remedy for any injury his reputation might have suffered from that cause. He would therefore appeal to his noble Friend not to pursue a course which he was certain must be painful to his noble Friend's own feelings as well as to the rest of the Members of their Lordships' House.

THE MARQUESS OF WESTMEATH

said, that after what had fallen from the noble Earl, he was prepared to acquiesce in his recommendation. But he would beg leave to make one observation more. His noble Friend said that the law was open to him. But this book had been surreptitiously published, and, though it had been widely circulated, it was with the greatest difficulty that he had succeeded in obtaining a copy. The Marchioness of Westmeath had named him at full length. He was told that the law was open, but he defied any lawyer to show how he had any means of redress. But he readily acquiesced in the noble Earl's recommendation, and would accordingly abandon the Amendment.

Amendment withdrawn.

Clause agreed to.

Clauses 16, 17, and 18 agreed to.

Clause 19 (on Adultery of Wife or Incest of Husband, Petition for Dissolution of Marriage may be presented).

THE EARL OF DONOUGHMORE rose to move an Amendment in the clause, for the purpose of allowing a wife a right to a divorce on account of the adultery of a husband, just as a husband was to have a similar right on account of the adultery of a wife. The Bill limited the right of the wife to divorce to the case of incest, bigamy, or aggravated cruelty; now he did not see any ground in Scripture or reason why the two parties to a marriage contract should not be put in that respect upon a footing of complete equality. It might be said that the adoption of his proposal would lead to the danger of collusion; but there was no reason why such a danger should arise from giving a certain privilege to the wife, any more than from giving it to the husband. The noble Earl concluded by moving the omission from the clause of the words which limited the right of the wife to abtain a divorce on account of the adultery of her husband.

THE LORD CHANCELLOR

said, there was an appearance of great justice about the proposal of the noble Earl—namely, that the same privilege should be accorded to the one sex as to the other. Primâ facie that seemed to be a very reasonable proposition. Their Lordships had not, however, to consider whether the sin was as great in the one case as in the other, but they were required to adopt such legislation as might be most expedient for this country. The question was not whether a husband who was guilty of adultery might not, in the eyes of God, be equally guilty with a wife, but whether such an act of impropriety or of sin on the part of a husband called for the same remedy which ought to be afforded when a similar act was committed by a wife. Without entering into any discussion of the question upon moral or religious grounds, every man must feel that the injury was not the same. A wife might, without any loss of caste, and possibly with reference to the interests of her children, or even of her husband, condone an act of adultery on the part of the husband; but a husband could not condone a similar act on the part of a wife. No one would venture to suggest that a husband could possibly do so, and for this, among other reasons which had been pointed out by jurists—that the adultery of the wife might be the means of palming spurious offspring upon the husband, while the adultery of the husband could have no such effect with regard to the wife. It was true there might be cases of adultery in which it was impossible for a wife to pardon her husband; but in such cases a remedy was already afforded to the wife.

THE EARL OF DONOUGHMORE

said, that the state of the law which he wished to have adopted in this country was already in force in Scotland, and without any injury, as far as he could learn, to the morals of the people of that country.

LORD LYNDHURST

said, that, on the second reading of this Bill, he had stated as fully as he was able the arguments by which he thought the Motion of his noble Friend might be sustained. He felt very strongly upon the subject, but he would not occupy the time of their Lordships by repeating the arguments he had before urged. He had heard nothing on the present or on former occasions which at all affected the opinion he had formed on this important question, and if his noble Friend pressed his Amendment to a division, he would vote in its favour. He thought that as an act of justice the concession requested by his noble Friend ought to be made.

LORD CAMPBELL

observed that this question had been most carefully and deliberately considered by the Commissioners upon whose Report the Bill was founded, and they came to a unanimous conclusion that it would not be safe to make any further relaxation of the law. They were of opinion that a wife should only have the right of divorce when it was impossible that she could continue to cohabit with her husband, or that condonation could take place—namely, where incestuous adultery occurred, or other cases of extreme aggravation. They thought that in the nature of things there was a material distinction between adultery on the part of the husband and adultery on the part of the wife, and that it would lead to the most lamentable consequences if the wife, in any case of adultery on the part of the husband, unattended with aggravating circumstances, should have the power to insist that the marriage should be dissolved. The example of Scotland had been referred to; but that was a country with a small population, with peculiar habits, and very religious notions, and, without meaning any disparagement to England, he might be permitted to say that that which operated innocently in the one country might operate prejudicially in the other.

On Question, that ("incestuous") stand part of the clause—

Their Lordships divided:—Contents 71; Not Contents 20: Majority 51.

CONTENTS.
Cranworth, L. (L. Chancellor.)	Derby, E.
	Effingham, E.
	Fitzwilliam, E.
Bath, M.	Granville, E.
Salisbury, M.	Grey, E.
Westminster, M.	Hardwicke, E.
	Harrington, E.
Abingdon, E.	Harrowby, E.
Albemarle, E.	Innes, E. (D. Roxburghe.)
Amherst, E.
Bantry, E.	Leven and Melville, E.
Beauchamp, E.	Malmesbury, E.
Burlington, E.	Morton, E.
Carnarvon, E.	Powis, E.
Chichester, E.	Shaftesbury, E.
Clarendon, E.	Spencer, E.
Dartmouth, E.	Stanhope, E.

Wicklow, E.	Carew, L.
	Clandeboye, L. (L. Dufferin and Claneboye.)
Eversley, V.
Falmouth, V.	Colchester, L.
Torrington, V.	Colville of Culross, L. [Teller.]
Bangor, Bp.	Delamere, L.
Bath and Wells, Bp.	De Tabley, L.
Chichester, Bp.	Downes, L.
Kilmore, &c., Bp.	Foley, L. [Teller.]
Lichfield, Bp.	Hunsdon, L. (V. Falkland.)
Lincoln, Bp.
Llandaff, Bp.	Kenyon, L.
London, Bp.	Manners, L.
St. Asaph, Bp.	Monteagle of Brandon, L.
St. David's, Bp.
Winchester, Bp.	Redesdale, L.
	Rivers, L.
Belper, L.	Saye and Sele, L.
Berners, L.	Somerhill, L. (M. Clanricarde.)
Brodrick, L. (V. Midleton.)
	Saint Leonards, L.
Byron, L.	Vivian, L.
Camoys, L.	Wensleydale, L.
Campbell, L.	Wycombe, L.

NOT-CONTENTS.
Cleveland, D.	Oxford, Bp.
Winchester, M.	Blantyre, L.
	Calthorpe, L.
Mayo, E.	Clonbrock, L.
Minto, E.	Congleton, L.
Munster, E.	Denman, L.
Romney, E.	Ker, L. (M. Lothian.)
Dungannon, V.	Lyndhurst, L.
Hutchinson, V. (E. Donoughmore.) [Teller.]	Oriel, L. (V. Massereene.) [Teller.]
	Talbot de Malahide, L.
Hereford, Bp.	Vaux of Harrowden, L.

Question again proposed, "That the clause stand part of the Bill."

LORD LYNDHURST

said, that on the second reading of the Bill he mentioned that he would move certain Amendments in the Committee; and in pursuance of that promise he should now propose an Amendment to the clause to the effect that wilful and malicious desertion for five years should be a sufficient ground on which a dissolution of marriage might be pronounced. It was not his intention to fatigue their Lordships by again going over in detail the grounds he had laid before them on a former night in support of this proposition; but would merely state, for the purpose of recalling his argument to their Lordships' recollection, the points he relied on. First of all, the desertion his Amendment contemplated was a breach of one of the most sacred and solemn engagements which man could contract; and a breach of the contract on the one side justified and called for the liberation of the other party from it. In the next place, it entirely defeated all those important objects for which marriage was instituted; and, thirdly, the effect of this breach of contract on one side was an act of the greatest cruelty to the other party. Under these circumstances, he urged, if one of the parties to the contract disregarded all those points to which he had referred, and practically put an end to the marriage, it was the height of injustice that the other party should continue to be bound by it. Then the remaining question was whether this dissolution of the contract under such circumstances was consistent with Scripture. It was not for him to argue a question of this kind in the presence of the right rev. Bench. He had already stated to their Lordships that all the great authorities on this subject went one way. He had reminded the House that this was a subject that received anxious and mature deliberation at the time of the Reformation, and that the result of the discussions which then took place was to establish that malicious and wilful desertion was a scriptural ground of divorce. He believed there was no dissenting voice upon the question, and he might refer to a few of the names of the distinguished men who took part in those deliberations, and who concurred in affirming that principle. He might mention Archbishop Cranmer, the Bishop of Winchester, the Bishop of Ely, the Bishop of London, Martin Bucer, and many other distinguished men. He might further refer to the names of Peter Martyn, Luther, Melancthon, and a long list of eminent men who held the same opinion that wilful desertion was a ground of divorce. Everybody knew that in consequence of the conclusions then arrived at every Protestant Church on the continent of Europe acted upon the principle, and had done so from that time to the present, that wilful desertion for a certain period was a sufficient scriptural ground for divorce à vinculo matrimonii. In England, in the time of Edward VI., a Commission, composed of men eminent for their learning and ability, investigated this subject, and came to the unanimous agreement that malicious wilful desertion was a scriptural ground of divorce. Among the distinguished men who formed that body were the Archbishop of Canterbury, the Bishops of London, Winchester, and Ely, Latimer, Parker, and a great many other eminent divines. In Prussia, where the question had been long and seriously considered, and where many alterations had been made in the law of divorce, they retained two special grounds of divorce—namely, adultery and desertion. By the law of Scotland desertion for four years was sufficient to annul a marriage; but he proposed that the period should be five years. It would, perhaps, be said this was in opposition to the law of England; but the object of the Bill was to correct the law, to act according to justice, and according to nature and reason. He proposed this as being in accordance not only with justice and equity, but with the doctrine of Scripture, and he trusted it would receive the sanction of their Lordships. The noble and learned Lord then moved an Amendment after "upwards," to insert "or of wilful desertion without reasonable cause for five years or upwards."

THE LORD CHANCELLOR

said, with great respect to the deserved influence of his noble and learned Friend's opinion, this was a point on which he had less hesitation in disagreeing from him than on almost any other proposition. He felt perfectly satisfied that, instead of his noble and learned Friend's argument being sound, it was most unsound; and he was satisfied that if the Amendment were adopted, it would ensure the defeat of the whole measure. The moment they went one stop beyond the case of adultery, where and when would they stop? If desertion for five years was sufficient, why not desertion for four years, as in Scotland? Why not three, two, or one? The moment they laid down desertion as a ground of divorce they would have the husbands deserting their wives. Why not be consistent, and say at once that whenever the husband and wife, from incompatibility of temper, or to suit each other's convenience, thought well to part, they should, as in the northern States of Germany, be allowed to do so? That was at this moment the law of Prussia, and the Chambers were totally unable to change it; for when on a question of this kind they established a social system, it became difficult to alter it. He would not enter into the religious part of the question, for he agreed with the right rev. Prelate (the Bishop of St. David's), that in legislation they ought to act on the spirit and principles to be justly deduced from Scripture, and not on the particular words of a few passages which might seem to favour particular tenets. It might be that the proposal of his noble and learned Friend might not be opposed to Scripture; but, deeming it inexpedient and opposed to the interests of society he must certainly resist its adoption.

LORD LYNDHURST

said, he had expected to hear his arguments combated by some more powerful arguments than those on which his noble and learned Friend had based his opposition to the clause. As to the question of where were they to stop, he would reply they should go no further than was consistent with the Scriptural construction of divorce. In Prussia the line had been drawn just at that point. So in Scotland, where the law of divorce was less contracted than in this country, no inconvenience had been felt, and no desire expressed for any change. The noble and learned Lord had said nothing of the breach of the solemn compact of marriage, nothing of the cruelty and hardship inflicted upon women who were the victims of the laws which men made. He repeated, that marriage was a compact of a most solemn character, and that if it were broken mercilessly by one party, how was it consistent with justice to hold the other party bound by it? He would not refer to texts of Scripture, but to the authority of able and learned men, whose business it had been to study the Holy Writings, and whose conclusions bore him out in the course he was now taking.

THE BISHOP OF ST. DAVID'S

said, that the noble and learned Lord had referred to no Scripture texts to prove his case. He produced a list of names, names distinguished no doubt, but such as could not supply the place of that argument on which he laid so much stress. He was himself utterly unable to recollect a single passage of Scripture either in the Old or New Testament that could, without the most violent construction, be brought to hear on the argument of the noble and learned Lord. To ask them to divide in favour of the proposal without citing some Scriptural authority for it, was expecting rather too much.

LORD LYNDHURST

said, he could have alluded to several texts in support of his proposal, but the argument would have been too refined for such an assembly. What he maintained was this, that the law in this part of the island was an exception to the law of Protestant Europe, and to the law of Scotland on the point, and was, in fact, a remnant of the Church of Rome.

THE DUKE OF ARGYLL

opposed the Amendment, thinking they ought to keep as much as possible to the one ground of divorce mentioned in Scripture. There was only one Scriptural passage that could be cited relied on in support of the view taken by the noble and learned Lord, and that only could be pressed into service by the most violent construction and special pleading.

LORD CAMPBELL

opposed the proposal, as contrary to the principle of the Bill, which was not to change the law of divorce, but only the mode of administering it.

LORD LYNDHURST

said, the law ought to be made to correspond with justice in this case as in all others. No evil results had taken place in Scotland from the law which existed there.

On Question, their Lordships divided:—Contents 8; Not-Contents 97: Majority 89.

CONTENTS.
Essex, E.	Hutchinson, V. (E. Donoughmore.) [Teller.]
Harrington, E. [Teller.]
Minto, E.	Blantyre, L.
Munster, E.	Denman, L.
	Lyndhurst, L.

NOT-CONTENTS.
Canterbury, Archbp.	Shaftesbury, E.
Cranworth, L. (L. Chancellor.)	Spencer, E.
	Stanhope, E.
	Talbot, E.
Cleveland, D.
Norfolk, D.	Doneraile, V.
	Dungannon, V.
Ailesbury, M.	Eversley, V.
Bath, M.	Falmouth, V.
Salisbury, M.	Hill, V.
Westminster, M.	Sydney, V.
Winchester, M.	Torrington, V.
Abingdon, E.	Bangor, Bp.
Albemarle, E.	Bath and Wells, Bp.
Amherst, E.	Carlisle, Bp.
Bantry, E.	Chichester, Bp.
Beauchamp, E.	Durham, Bp.
Burlington, E.	Hereford, Bp.
Carnarvon, E.	Kilmore, &c., Bp.
Chichester, E.	Lichfield, Bp.
Clarendon, E.	Lincoln, Bp.
Dartmouth, E.	Llandaff, Bp.
Derby, E.	London, Bp.
Effingham, E.	Oxford, Bp.
Fitzwilliam, E.	Salisbury, Bp.
Fortescue, E.	St. Asaph, Bp.
Graham, E. (D. Montrose.)	St. David's, Bp.
	Winchester, Bp.
Granville, E.
Grey, E.	Belper, L.
Hardwicke, E.	Brodrick, L. (V. Midleton.)
Harrowby, E.
Innes, E. (D. Roxburghe.)	Byron, L.
	Calthorpe, L.
Malmesbury, E.	Camoys, L.
Mayo, E.	Campbell, L.
Morton, E.	Carew, L.
Nelson, E.	Clandeboye, L. (E. Dufferin and Claneboye.)
Powis, E.
Romney, E.	Clonbrock, L.
Seafield, E.	Colville of Culross, L.

Congleton, L.	Ponsonby, L. (E. Bessborough.) [Teller.]
Delamere, L.
De Tabley, L.	Raglan, L.
Downes, L.	Redesdale, L.
Foley, L. [Teller.]	Rivers, L.
Hunsdon, L. (V. Falkland.)	Saye and Sele, L.
	Somerhill, L. (M. Clanricarde.)
Kenyon, L.
Manners, L.	Stafford, L.
Monteagle of Brandon, L.	Sundridge, L. (D. Argyll.)
Oriel, L. (V. Massereene.)	Talbot de Malahide, L.
	Vaux of Harrowden, L.
Petre, L.	Vivian, L.
Polwarth, L.	Wensleydale, L.

Question again proposed, "That the clause stand part of the Bill."

THE BISHOP OF OXFORD

said, the evil of this clause was to be found in its connection with the 43rd clause, which gave an interpretation to the dissolution of marriage to which he could not consent. He should be obliged, therefore, on that clause to submit to their Lordships his reasons for opposing it.

THE EARL OF DERBY

put the case of a man who had committed incestuous adultery with his wife's sister, and whose marriage was dissolved on that ground; and he asked if that dissolution of the marriage, by which the party with whom the husband had committed incest was no longer his wife's sister, would preclude him, under the Bill, from marrying the woman with whom he had committed incest, the law as it at present stood prohibiting a man from marrying a wife's sister.

THE LORD CHANCELLOR

said, that the husband would not be at liberty to marry the sister in that case, for the marriage would still be incest. If a person had criminal connection with a woman, it would be incest afterwards to marry her sister. What would have been incest before the divorce would be incest afterwards; besides the clause permitting the marriage only permitted it as if the former marriage had been terminated by the death of the wife.

THE EARL OF MALMESBURY

asked, if a wife who might obtain a divorce by this Bill on account of her husband's incestuous adultery was placed in the position of a woman who was dead, as respected the relation of the husband to her sister.

THE LORD CHANCELLOR

said, clearly he would not be at liberty to marry his wife's sister in that case.

EARL GREY

desired to know, if in the case of a man who contracted marriage, and it afterwards turned out that he had had years before criminal intercourse with his wife's sister, such a marriage would be null.

THE BISHOP OF OXFORD

said, by the law ecclesiastical the connection with the unmarried woman made the marriage with her sister impossible. It would be a ground for setting aside such a marriage as being null and void, because by the law ecclesiastical it was an incestuous commixture.

Clause agreed to.

Clause 21 (Dismissal of Petition).

THE EARL OF MALMESBURY

cited several cases of women who had been frequently divorced, and proposed the following Amendment:— In case the Court on the Evidence in relation to any such Petition shall not be satisfied that the alleged Adultery has been committed, or shall find that the Petitioner has, during the Marriage been guilty of Adultery, or has been accessory to or conniving at the Adultery complained of, or has condoned the same, or that the Petitioner has been previously divorced on the Ground of Adultery, whether committed with the Person against whom any such Petition is presented or with any other Party, or that the Petitioner has committed Adultery with the Person against whom any such Petition is presented, and has thereby caused such Person to have been previously divorced, or that the Petitioner, previously to the Marriage, knew that the Person against whom any such Petition is presented had been previously divorced at the Instance of any former Husband or Wife, or that the Parties have notoriously cohabited previously to their Marriage, then and in any of the said Cases the Court shall dismiss the Petition.

THE LORD CHANCELLOR

objected to the Amendment.

THE EARL OF MALMESBURY

said, it had happened frequently in Germany and Poland, where two adulterous parties had been first divorced and subsequently married, for one or both of them to commit adultery again, and go into court and be divorced a second time. A system like that would be a great scandal if allowed in this country; and he wanted to know how it was to be guarded against under this Bill?

THE BISHOP OF OXFORD

had known a case in which it was proved that the husband had seduced his wife before marriage, and afterwards, upon his applying for a divorce upon the ground of her subsequent adultery, their Lordships had refused the application, holding that he was not entitled to the remedy to which a husband would have been entitled had he come before them with clean hands. Now, inasmuch as the new Court would exercise no discretion, but administer the letter of the law, it was necessary that the letter of the law should contain such conditions as would apply to cases of this sort, otherwise they would be introducing a licence to crime.

THE LORD CHANCELLOR

said, he would consider the points referred to by the noble Earl opposite. He saw no objection to providing for a case of that sort, but he did not like to pledge himself off hand to the adoption of any particular provisions.

Amendment withdrawn.

Clause agreed to.

Clause 22, agreed to.

On Clause 23 (Alimony).

THE BISHOP OF OXFORD

called attention to the circumstance that this clause provided that a husband who obtained a divorce from his wife might be required to allow her alimony to such amount as the Court, having regard to the ability of the husband and the conduct of the parties, should think reasonable, but that the Bill made no provision for the allowance of alimony to a wife who obtained a divorce against her husband.

THE LORD CHANCELLOR

expressed his readiness to consider the propriety of altering the clause.

Clause agreed to.

Clause 24 agreed to.

THE EARL OF DERBY

gave notice that his noble and learned Friend (Lord St. Leonards) would bring forward on the Report the clause of which he had given notice, constituting adultery a misdemeanour, and imposing a fine on the adulterer.

THE BISHOP OF LINCOLN

said, that the morality of the country owed a debt of gratitude to the noble and learned Lord for taking adultery out of the category of civil offences and constituting it a misdemeanour; but he thought that the punishment should be more proportioned to the offence, and that conviction should be followed by fine and imprisonment.

THE LORD CHANCELLOR

having observed that enormous difficulties stood in the way of making adultery a misdemeanour in all cases,

Clause 25 to 42 agreed to.

Clause 43 (Liberty to Parties to marry again).

THE BISHOP OF OXFORD

said, he wished to say a few words in opposition to the clause. He would pass over the scriptural argument, having dealt with that already, by simply saying that the more he studied it the more he became convinced that the scriptural authorities were clear and plain against allowing the re-marriage of persons who had been divorced. He was confirmed in this opinion by some of the most eminent divines of the Church of England, who had spoken most explicitly on the point, and declared that it was absolutely contrary to the law of God that either party should contract marriage after divorce. Supposing, however, the case to be doubtful, what were the alternatives? On the one hand they might possibly be withholding, in a few evil cases, a liberty which, if it could be granted with safety in others, might be granted,—that was all; but if, on the other hand, they made the law directly antagonistic, not to certain texts taken out of Scripture, but to the tenor of the instruction of our Blessed Lord on the subject, they opened a path for sin, and almost certainly led the coming generation into trifling with this holy ordinance. It had been said that there was not the least reason to apprehend this danger, because they took their stand on unassailable ground; but that, if they admitted other causes than adultery for the dissolution of marriage, then all those evils which were anticipated by some might follow. But had they not heard one who might be styled the Nestor of their assembly argue that it was a scriptural relaxation to grant divorce for five years' absence? therefore how impossible it was to say that they took their stand upon unassailable ground. The only argument beside the scriptural one that had been urged was the example of Scotland; but, looked at closely, the case of Scotland afforded no real indications of the working of the system. The law of that country had been, to a very great degree, modified in practice by her relationship to England. The overshadowing effect of the union with England had prevented Scotland from running into the same extreme as the nations of the Continent, and passing from one degree of liberty to another in the matter of marriage. Then, in considering this question, they ought to take into account the fact that the whole of Christendom, from the very earliest date, both in the East and West, had maintained views contrary to those laid down in this clause. His noble and learned Friend (Lord Lyndhurst) referred the other evening to the case of Napoleon, which was the only one which his fertile brain and unwearied research could produce; but even this example of Napoleon was not a case in point. By a rule of the Council of Trent it was provided that in every nation in which its canons were published as part of the national law, there should be necessarily present a priest, and at least two witnesses to make a marriage valid. In France these canons had been published as part of the law. Napoleon was married without the presence of the necessary witnesses; and afterwards, when he reestablished the Roman Catholic faith, he was strongly urged to be re-married according to the requirements of the Council of Trent; but he declined to do so, lest he should shock too much the feelings of those who had been married in the same way as himself. The Court of Rome therefore did not pass a divorce, but pronounced his marriage null and void ab initio, and Austria took care to have the fullest investigation into the matter before consent was given to a marriage with Napoleon, so that there should be no doubt as to the legitimacy of any issue that might follow. When, therefore, it came to be examined, the very case cited by his noble and learned Friend as showing that the Western Church allowed such remarriage broke down. As to the Eastern Church, the lax practices which prevailed in the countries under its influence showed the lamentable consequences that must ever follow a departure from right principle on the question of marriage. The practice there had led to the greatest laxity; so great, indeed, that the wife of a convict sent to another part of Russia was allowed to marry again: but the canons of the Eastern Church were equally clear upon the point, and declared that, though there might be a dissolution of marriage on account of adultery, there could be no re-marriage. Reference had been made to the time of the Reformation; but there could be no doubt that many of the men of that time, eminent and learned as they were, had gone to an extreme in their views as to the ground on which marriage might be dissolved. He asked them would their Lordships do that which they were not asked to do, and introduce licence when the general state of the law was acquiesced in? No one would pretend to say that there was any demand from the people of this country for such a change as was now proposed. On the contrary, it must be admitted that there was universal acquiescence in the present state of the law. [Lord CAMPBELL interposed an observation]. The noble Lord spoke of privilegium, but what were those privilegia but acts of that House to save particular people from the penalties of bigamy? He pledged himself that, if their Lordships threw out the obnoxious clause, he would come down to the House, and oppose every case of privilegium that was proposed for their consideration. He repeated that the people of this country desired not this state of things; they had the example of other nations showing to what evils the loose practices they had adopted led them, and he would ask, why not stop the granting of those privilegia here? They had gone on giving those privilegia so long, that now they felt they could not refuse to consent to the extension of the indulgence, and therefore were prepared to grant it to anybody. He prayed them not to endanger, by such a measure, the morals of the people of England. They might depend upon it that, if they admitted these changes, the evil would recoil upon our heads, and then the determination of these nice and delicate questions would be left to tribunals utterly unfitted for the task; they might depend upon it, that that which was permitted to the rich by reason of their being able to incur great expense, would be claimed as a matter of right by the poor. If they made a law that a person who could afford to bring a bevy of witnesses from Cornwall or Cumberland to prove adultery was to have the right to marry again, it would not be possible for them to stop there; they must extend that right to every local class of society, and this would infallibly lead to the admission of the greatest licence. It was this that threatened the happiness of married life in England. Where, he would ask, were the hundreds of petitions asking for this liberty? where the husbands, where the wives desiring relief from bondage? If their Lordships appealed to England, in its homes, and amidst its shrines of domestic happiness, upon this point, the people would respond with one accord, and say with one voice, "Do nothing of the kind, do nothing that will endanger that sacred fence which hitherto has protected family charity and family chastity." He prayed their Lordships to pause. Let them not make particular laws to meet particular cases. Let them not give this fatal boon to the people of this country. Let them be as their fathers were before them, the maintainers of the law, the maintainers of God's truth, the ministers of the people's sanctity. He moved that this clause be omitted from the Bill.

THE BISHOP OF BANGOR

thought the interpretation placed upon the words of our Lord by his right reverend Brother was non-natural, and not in accordance with the mind of our Saviour. The passages which he has cited from the Sermon on the Mount and from Matt, xix., in older to prove that marriages are indissoluble by the law of God, even in cases of adultery, relate exclusively to those divorces which were allowed by the Law of Moses, and neither have nor could have any reference to divorces by reason of adultery. He had been still more surprised to hear the reference made by another right reverend Brother to an alleged counsel of St. Paul to a husband to take back his adulterous wife. We must recollect that the whole of his advice in this chapter was given in answer to questions that had been put to him in reference to scruples which appear to have disturbed the minds of the converts, who were for the most part either heathens, or those, who had adopted from the Jews the doctrines of the Unity and Personality of the Godhead, and of a future state of rewards and punishments. Throughout the whole of the 7th chapter the Apostle is not pressing on them any specific duty or rule of action, but giving them such prudential advice as was suited to their present circumstances. But I will affirm, without doubt or hesitation, that the passage quoted by my right reverend Friend from the 7th chapter of the First Epistle to the Corinthians has no more to do with the case of an adulterous wife than with the millennium or the construction of the tabernacle in the wilderness.

LORD CAMPBELL

had heard with surprise the rev. Prelate (the Bishop of Oxford) state that if they allowed persons divorced to marry again they would change the law of England. That he must designate as a quibble and a notorious quibble. It would be to change the law of England if they dissolved marriages, and did not let the parties marry again. Indeed, to put away a man's wife necessarily implied the liberty to take another; and but for that liberty many great and illustrious families, which were in a flourishing condition, would have ceased to exist. It seemed to him a monstrous proposition to say that the injured person should be made to suffer for the misconduct of his wife.

LORD WENSLEYDALE

said, he had heard the speech of his noble and learned Friend with great surprise. There was not a lawyer in the House, or in the whole profession, who would assert that by the regular common law of England marriage was dissoluble. An attempt was made, indeed, to change the law at the time of the Reformatio Legum, but it never was carried into effect, although a system of granting private Acts had prevailed since the reign of William III. That marriage was by the law of the land indissoluble was manifest from the fact that no court which administered the law could dissolve a marriage once validly made. He (Lord Wensleydale) thought the right rev. Prelate had just cause for complaint in the sweeping assertion which had been made by his noble and learned Friend.

THE LORD CHANCELLOR

said, that of course his noble and learned Friend did not mean to say that marriage was dissoluble by any law which was administered by the courts; but everybody knew that the practice had prevailed for nearly two centuries of granting divorces by Acts of the Legislature. It was a mere verbal dispute whether it was by the law, or by a system of privilegia, that divorces had been obtained during the last 150 years. There could be no doubt that a divorce was at present granted by their Lordships, under certain circumstances, as a matter of right, and any person who was prepared to incur the necessary expense had no difficulty in establishing that right. He would go farther, and say, that it would not be possible for their Lordships to depart in that case from the established usage, and to interrupt the course of the judicial proceedings which ended in substantiating the right to the divorce. With respect to the Amendment of the right rev. Prelate, he should observe that he did not see how any person who had voted for the second reading of the Bill could support that Amendment, as it would defeat the main purport of the measure.

THE EARL OF DERBY

said, he did not wish to continue the discussion, but begged to call their Lordships' attention to a point on which he thought the clause had been misapprehended by the noble and learned Lord (Lord Campbell). He had spoken as if this clause were opposed not only to the law but to the custom and practice of England. He had contended all along for giving the injured party a remedy; but this clause did not confine the remedy to the injured party, but extended it to the guilty party as well. There were three propositions before the House. The first proposition was that of the Government, which was, that upon the dissolution of a marriage, the respective parties should be permitted to marry again. The second was that of the right rev. Prelate (the Bishop of Oxford) who denied that either party was at liberty to marry again; and the third, that of the most rev. Prelate (the Archbishop of Canterbury), took the course recommended by the learned Lord Chief Justice, who would permit the injured party to marry again, but would withhold the right from the guilty party. Now he (the Earl of Derby) would suggest to the most rev. Prelate to move his Amendment upon the clause, instead of letting the clause pass, and then adding a proviso or introducing a subsequent clause.

Amendment withdrawn.

THE ARCHBISHOP OF CANTERBURY

My Lords, I readily accede to the recommendation of the noble Earl in rising to propose the Amendment of which I have given notice, and without which I think that the present Bill is not likely to promote the object which your Lordships have at heart—the social welfare and the morality of the country. My Lords, I did not hesitate to support the main object of the Bill. I think that the injured wife or husband—injured in the tenderest point by the unfaithfulness of their partner—ought not to be denied the relief which the Bill affords, guarded as it is by the provisions and precautions which prevent collusion. But Clause 43, which permits the guilty parties to re-marry, appears to me to be full of danger. I can neither reconcile it to reason nor to the Divine command, which is our only safe and proper guide. My Lords, I think that we could hardly furnish a man who desired to possess his neighbour's wife with a more persuasive argument than this clause supplies. I think that we could scarcely place a woman, dissatisfied with her present lot, in a state of greater temptation, than by consenting to this clause. The present marriage, we assume, is unhappy. There is a way by which it might be set aside, and a happy marriage ensue. Could any stronger inducement be offered to an incipient passion than the prospect that in the end it might be legitimately indulged? My Lords, I trust that your Lordships will support the Amendment, which will prevent this blot from disfiguring your legislation.

Moved, to leave out ("respective parties thereto") and insert ("party on whose petition the marriage shall have been dissolved").

THE LORD CHANCELLOR

opposed the Amendment of the most rev. Prelate as being inimical to morality. It might be a question, whether their Lordships would allow the guilty paramours to marry; but surely they were not going to enact that, having dissolved an existing marriage, they would say to one of the parties, "You shall not marry again." Suppose a marriage dissolved at the instance of a wife; would they say to the husband, "You shall not many again; you must live with a mistress for the remainder of your life"? He (the Lord Chancellor) could not conceive a greater scandal to society than would result from such a state of things. He thought it would be alike cruel and unscriptural to impose such a restriction, and he must therefore oppose the Amendment.

EARL GREY

said, he could understand the difficulties in the way of condemning a person to celibacy; but, on the other hand, if there was to be no security against collusion in cases of this kind, he thought the House would be entering on a most dangerous course. At present, as the law stood, the great expense attending a private Bill for a divorce, though it practically had the effect of confining the remedy of divorce to the higher classes, operated also, it must be admitted, as a great check against collusion. One of the main objects of this Bill was, to make the remedy of divorce cheaper to the humbler orders; but, if their Lordships did that without any check or guard whatever against abuse, his conviction was, that in the course of a few years they would have the lamentable practice growing up of adultery being committed for the purpose of obtaining a divorce. His belief was, that if they were to adopt the course of dissolving marriage for adultery, it was absolutely necessary that they should have recourse to some system as stringent as the one now in force in their Lordships' House, which had been not to give relief unless there had been previously damages obtained in an action of criminal conversation—the effect of that rule being, that the damages awarded operated as a great security against collusion. No man could be more opposed than he was to the action for criminal conversation, which was so degrading in its character; but they should in some other way provide a substantial punishment for collusion in the shape—not of a money fine—but of imprisonment, and perhaps the proper course would be to provide that no proceeding for the dissolution of a marriage should be instituted, unless there had been a prior criminal proceeding against the guilty party, and that party had been subjected to substantial punishment.

LORD CAMPBELL

said, he was impatient to see the action for criminal conversation abolished; but he should not like to see it abolished without some substitute, for otherwise that would be a state of things which would operate as an encouragement to adultery.

On Question, whether the words proposed to be left out stand part of the clause? Their Lordships divided:—Contents 47; Not-Contents 53: Majority 6.

CONTENTS.
Cranworth, L. (L. Chancellor.)	Belper, L.
	Brodrick, L. (V. Midleton.)
Cleveland, D.	Byron, L.
	Cameys, L.
Ailesbury, M.	Campbell, L.
Breadalbane, M.	Clandeboye, L. (L. Dufferin and Claneboye.)
Abingdon, E.	Clonbrock, L.
Burlington, E.	Congleton, L.
Clarendon, E.	Delamere, L.
Essex, E.	Denman, L.
Graham, E. (D. Mantrose.)	De Tabley, L.
	Foley, L. [Teller.]
Granville, E.	Hunsdon, L. (V. Falkland.)
Harrington, E.
Harrowby, E.	Lyndhurst, L.
Innes, E. (D. Roxburghe.)	Manners, L.
	Panmure, L.
Minto, E.	Ponsonby, L. (E. Bessborough.) [Teller.]
Munster, E.
Seafield, E.	Rivers, L.
Spencer, E.	Saye and Sele, L.
	Somerhill, L. (M. Clanricarde.)
Falmouth, V.
Sydney, V.	Stanley of Alderley, L.
Torrington, V.	Sundridge, L. (D. Argyll.)
Kilmore, &c., Bp.	Talbot de Malahide, L.
London, Bp.	Vivian, L.
	Wycombe, L.

NOT-CONTENTS.
Canterbury, Abp.	Dungannon, V.
	Eversley, V.
Norfolk, D. (E. Marshal.)	Hutchinson, V. (E. Donoughmore.)
Bath, M.
Salisbury, M.	Bangor, Bp.
Winchester, M.	Bath and Wells, Bp.
	Carlisle, Bp.
Airlie, E.	Chichester, Bp.
Albemarle, E.	Durham, Bp.
Amherst, E.	Hereford, Bp.
Carnarvon, E. [Teller.]	Lichfield, Bp.
Chichester, E.	Llandaff, Bp.
Dartmouth, E.	Oxford, Bp.
Derby, E.	Salisbury, Bp.
Effingham, E.	St. Asaph, Bp.
Grey, E.	St. David's, Bp.
Hardwicke. E.	Winchester, Bp.
Mayo, E.
Nelson, E. [Teller.]	Berners, L.
Powis, E.	Bolton, L.
Romney, E.	Calthorpe, L.
Shaftesbury, E.	Colchester, L.
Talbot, E.	Colville of Culross, L.

Downes, L.	Raglan, L.
Ker, L. (M. Lothian.)	Redesdale, L.
Monteagle of Brandon, L.	Sheffield, L. (E. Sheffield.)
Oriel, L. (V. Massereene.)	Stafford, L.
	Vaux of Harrowden, L.
Petre, L.	Wensleydale, L.

On the Question, "That the clause, as amended, stand part of the Bill?"

THE BISHOP OF OXFORD

said, though the clause was greatly improved by the most rev. Prelate's Amendment, he still considered it very objectionable, and should therefore move its omission.

Amendment withdrawn. Clause agreed to.

Clause 44 (Dissolution of Marriage to precede Action for Criminal Conversation.)

LORD CAMPBELL

said, thinking that the discussion could not at that hour be continued advantageously, he should move that the House do now resume.

THE LORD CHANCELLOR

opposed the Motion.

LORD LYNDHURST

said, before the House went into Committee he had stated his desire to put an end to the action for criminal conversation. For the purpose of effecting that object, he would now propose that so much of the 44th Clause as began with the word "unless," down to the end, be excluded.

EARL GREY

observed, that the House had been engaged seven hours and a half in discussing the Bill, and he did not think it would be consistent with propriety and with the dignity of the House to proceed any further.

EARL GRANVILLE

thought, that as the noble and learned Lord (Lord Lyndhurst) had borne the fatigue of sitting there so long to state his views, the House ought to have the patience to hear him.

LORD LYNDHURST

said, he had previously explained his object. What he now proposed was, to strike out the word "unless," and the remaining words of the clause down to the end. The clause would then stand in substance thus:—"That no action for criminal conversation shall hereafter be brought." The Bill as it stood made the law in reference to that subject worse than it was at present. Providing as it did that no action for criminal conversation should be brought till a divorce had been obtained, it would prevent a Roman Catholic, who could not sue for a divorce, from bringing an action. One object of the Bill was, he understood, to render the administration of justice as cheap as possible, and the clause as it stood would tend to prevent a man of moderate means from instituting proceedings. As to the substitute, his noble and learned Friend opposite (Lord Campbell) might hereafter propose to make the offence committed a misdemeanour, punishable by fine, or by imprisonment, or by both. It was not necessary to settle that question then.

LORD WENSLEYDALE

said, that this was a most important question, on which he had much to say. He should support the Motion that the House do now resume.

THE MARQUESS OF CLANRICARDE

said, that the House ought not to resume till the noble and learned Lord's (Lord Lyndhurst's) statement had been answered. He had raised a very grave question, and the House ought not to resume without some answer. The great objection to these actions for damages had hitherto been the form in which these actions had been brought. It was a subject which demanded much consideration, as to whether they should abolish a pecuniary remedy for what was very often a pecuniary damage. He wanted to know the views of the Government on this subject.

LORD CAMPBELL

again urged the adjournment of the House. Even in the House of Commons it was not the custom to sit so many hours in Committee even upon important subjects. He urged the adjournment as a sincere friend to the Bill.

After a few words from Earl GRANVILLE,

House resumed; and to be again in Committee on Thursday next.

House adjourned at One o'clock, A.M., to Thursday next, half-past Ten o'clock.