Lords Sitting of 28 May 1857

MINUTES.
Took the Oaths.—Several Lords; The Lord Arundell of Wardour took the Oath prescribed by the Act 10 Geo. IV., to be taken by Peers professing the Roman Catholic Religion.
PUBLIC BILLS.—2a Sale of Poisons, &c.; Transportation and Penal Servitude.

PREACHING IN EXETER HALL.
VISCOUNT DUNGANNONsaid, he wished to put a question on a subject of very great importance to the right rev. Prelate who presided over the diocese of London. A paragraph had appeared in the public papers which stated that certain evening discourses were being delivered in Exeter Hall on successive Sunday evenings by right rev. Prelates and other dignitaries of the Church of England, and that the first of these services began on Sunday evening last. Paragraphs had also appeared containing announcements which he could not but consider offensive to churchmen. In some cases these paragraphs were headed, "Extraordinary movement in the Church." "Spurgeonism in the Church of England," and so on. Some persons were of opinion that this was not for the interests of the Church, and that it was calculated to introduce a sort of Spurgeonism into the Church of

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England. That hall was very much used for public religious meetings, and for secular matters also, but he was not aware that it had ever been consecrated or set apart for Divine worship. The case was a new and singular one, and he must say, such as he had never heard of before in connection with our Church. He should be glad to hear from the right rev. Prelate, whether these meetings take place with his sanction, and whether they are in strict conformity with the practice and discipline of the Church. No doubt the right rev. Prelate was better informed on such matters than he could possibly be; but, considering that these services take place in an unconsecrated building, he could not help calling his attention to them, and should wait for his reply with some anxiety. The question he had to put was, whether these proceedings had the approval of the right rev. Prelate, and whether he considered them to be strictly in conformity with the rules and discipline of the Church?
THE BISHOP OF LONDON: I am not aware that the noble Lord is exactly in order in putting this question, but at the same time I am quite ready to give whatever information is in my power to the noble Lord. I may state to the House that I believe there is no doubt whatever that such a meeting as he has described did take place in Exeter Hall last Sunday evening, and also that it is the intention that such meetings shall be continued for several successive Sundays. I am not aware what paragraphs the noble Lord alludes to as having appeared in the newspapers on this subject, and therefore it is impossible for me to say how far the statements in those paragraphs are, or are not, strictly in accordance with fact. I must say, however, that I believe the request which was made to me, that two right rev. Prelates of the Church, two learned and reverend Deans, and several other clergy should on successive Sunday evenings address the assembled people in Exeter Hall, is strictly in accordance with the Act which I hold in my hand, and which is entitled "An Act for the better securing of the liberty of religious worship," in which it is provided that among the cases in which such addresses may be made, are meetings similar to those now taking place in Exeter Hall. The Act provides that assemblies for religious worship held in any building or place not usually appropriated to religious worship are legal.
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That Bill was brought in by my noble Friend (the Earl of Shaftesbury), and it was the very intention of the Bill that such addresses and such meetings as the noble Lord has referred to should be allowed. I will also, if permitted, state that not only do I consider these meetings to be strictly legal, but that they are in the highest degree expedient. I believe from my heart, that there are thousands upon thousands of people in this metropolis and other large towns, of whose condition your Lordships are pained to hear, who have not entered a place of worship for many years. I believe that some such persons were attracted to the meeting to which the noble Lord has alluded, and I fondly trust they were not brought there without receiving benefit. I believe that those who are conducting these meetings have most earnestly at heart the welfare of the labouring classes of this country; and there is every reason to hope that by bringing those classes together where they will hear the Word of God and the sacred services of our Church in such places as these, it will ultimately make them—what at present they are not—habitual worshippers within the walls of our churches.
LORD KINNAIRDsaid, although the question put to the right rev. Prelate was an unusual one, he was not sorry it had been put, as it had elicited such an expression of opinion with regard to the meetings in question as their Lordships had just heard. He was most glad to hear that these meetings had not only his sanction, but his cordial approval. He could confirm what the right rev. Prelate had said with regard to the necessity for such meetings. There were thousands in the metropolis, and indeed in almost every large town in the country, who never entered the house of God from year's end to year's end; and such persons could only be approached by means of domiciliary visits from missionaries and Scripture readers, and of meetings such as that held in Exeter Hall on Sunday last. He thought it a matter greatly to be regretted that while they had seen year after year crowded gatherings of working men in Exeter Hall and other large buildings listening to the sound of the Gospel from the lips of ministers who did not belong to the Church of England, that the Church of England, in which there were ministers as eloquent, and as earnest, and as capable of impressing a crowded assembly as any to be found out of its pale, had not come for-

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ward for the same purpose. To his mind it appeared a subject for rejoicing to the members of the Established Church, that these meetings in Exeter Hall had been commenced. He was himself present last Sunday, and saw assembled not less than 4,000 persons; and, whereas many meetings of that sort were composed, to a great extent, of the female sex, he was happy to say that on that occasion fully one-half of those present appeared to be working men. Many men of that description did not like, on account of the inferiority of their dress, to attend well-filled and luxurious churches; but on this occasion numbers of them were present. All of them, as they entered the hall, had a copy of the beautiful liturgy of the Church placed in their hands, and that they duly appreciated it was evident from the earnest manner in which they joined in the responses. Never did he witness a more striking scene than when, after having listened most attentively to a heart-stirring address from the right rev. Prelate who addressed the meeting, the whole assembly rose at the conclusion of the service and joined in a hymn of praise to their Creator. A similar movement to this had been commenced in Scotland, and had been attended with excellent results. He must again express the pleasure with which he had witnessed the commencement of this movement; and now that such eminent members of the Church of England had taken the matter up, he sincerely hoped it would lead to a good and happy result, and he would congratulate the country on having a Prelate to preside over this diocese, who felt it his duty to countenance the movement.
THE ARCHBISHOP OF CANTERBURYrose, and was proceeding to address the House, when
LORD FEVERSHAM, who had risen at the same time, began to state the prayer of a petition which he was about to present, amid loud cries of "Order!" and calls for the most rev. Primate.
LORD CAMPBELLthen moved that leave be given to the Archbishop of Canterbury to address the House.
THE EARL OF ELLENBOROUGH, as a matter of order, objected that there was no question before the House upon which such a Motion could be based.
EARL GRANVILLEsubmitted to their Lordships that the right rev. Prelate should be allowed to speak upon a subject so interesting to himself.
THE ARCHBISHOP OF CANTERBURYsaid, he thought the question put by the noble Viscount (Viscount Dungannon) had been fully and completely answered by his right rev. Brother; and he therefore merely wished to say, that he entirely concurred that it was for the good of the Church that such meetings should be held. He would only just ask the noble Viscount, who was, he was certain, anxious for the welfare of the Church, whether it would be wise, even were it possible, to check what he called these innovations? He could not imagine that any greater reproach or disparagement could be cast upon the Church, than to suppose it was incapable of accommodating itself to the changing necessities of the age, or allowed its dignity to interfere with its usefulness?
LORD FEVERSHAMthen presented his petition.

SALE OF POISONS BILL.

  SECOND READING. PRESENTATION OF PETITION.
  EARL GRANVILLE EARL GRANVILLE moved the second reading of this Bill, and in doing so suggested that, as there was a considerable amount of business upon the paper, their Lordships should assent to the second reading now without discussion, in which case he would reserve his statement until the period for going into Committee, at which time the merits of the Bill could be fully discussed.
  THE EARL OF DERBYhoped it would be understood that in agreeing to the suggestion of the noble Earl the House would not be considered as committing itself to the Bill.
  EARL GRANVILLEsaid, it was understood that the whole discussion should be open upon going into Committee.
  THE DUKE OF CLEVELANDcomplained that the discussion which had followed the question of the noble Viscount (Viscount Dungannon) had exhausted the whole period allowed for the presentation of petitions, and consequently that which he had to present, which was of a highly important character, could not be laid before their Lordships.
  THE EARL OF ELLENBOROUGHsaid, that all those noble Lords who had petitions to present might do so on the Order of the Day being read to which they referred.
  EARL GRANVILLEthought blame ought not to be cast upon an individual Peer for following what had become the

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  practice of the House. It was no doubt inconvenient that the time set apart for the presentation of petitions and the asking of questions should be consumed by a debate, and he hoped their Lordships would agree in future to avoid doing so. At the same time he thought the noble Lord (Lord Kinnaird) had been justified by what had become a practice in that House.
  Bill read 2a, and committed to a Committee of the whole House on Thursday next.

SHEPHERD'S DISABILITIES REMOVAL BILL.

  SECOND READING.
  LORD REDESDALE LORD REDESDALE moved that the Bill be now read 2a.
  THE EARL OF SHAFTESBURYobjected, as he did not know what the Bill was, none of their Lordships having seen it.
  LORD REDESDALEwas understood to state that the Bill was intended to enable the Rev. Mr. Shepherd, who had been ordained in the American Episcopal Church, to hold an English benefice.
  THE EARL OF SHAFTESBURYsaid, that by the Act of 1792 a minister ordained by the Episcopal Church of Scotland could not hold any benefice in England. He believed the same provision applied to clergymen ordained in America. The reason for that prohibition was, that clergymen ordained by the Episcopal Church of Scotland did not subscribe to the three Articles set forth in the 36th Canon, one of which was the admission of the Royal supremacy in matters ecclesiastical. If a privilegium were granted to Mr. Shepherd he would hold a benefice in England without being required to recognize the Royal supremacy.
  THE BISHOP OF BANGORremarked that that could not be so, as any clergyman appointed to a benefice must subscribe to all the oaths required by the canon.
  THE EARL OF SHAFTESBURYsaid, what he wished was that all clergymen who held benefices in England should subscribe to the same Articles. He believed that the present Bill proposed to admit a gentleman to hold a benefice in England without these conditions, and therefore he would oppose the Second Reading.
  LORD CAMPBELLsuggested that if it were right to allow clergymen belonging to the Episcopal Church of Scotland in America to hold a benefice in England, a
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  general law should be passed on the subject.
  LORD REDESDALEsaid, that the present Bill only empowered the person to hold a benefice; if he should be presented to one, he would, on admission, be subject to the same requirements as a clergyman in English Orders.
  THE EARL OF SHAFTESBURYobserved that the particular person ought to hold his benefice at least upon the same footing as an Anglican clergyman.
  THE BISHOP OF CHICHESTERbelieved that the object was secured in this Bill by another way—by taking the oath of supremacy.
  THE ARCHBISHOP OF CANTERBURYsaid, that every case of this kind ought to be very carefully considered, and not governed by precedents. But having been informed of the particulars of the case to which the Bill related, he did not think that in that instance there could be any objection to doing what was desired.
  LORD KINNAIRDsaid, he considered it almost impossible for ministers ordained in the Episcopal Church of Scotland conscientiously to accept a living in England. Having paid attention to the subject, he thought that permission to do so should only be granted in very exceptional cases.
  THE EARL OF SHAFTESBURYbegged to give notice that he should move that the Bill be referred to a Select Committee, who should consider whether or not it was desirable that some general measure on the subject should be introduced.
  Motion agreed to; Bill read 2a, and committed.

PROBATES AND LETTERS OF ADMINISTRATION BILL.

  REPORT.
  Amendment reported (according to Order).
  EARL STANHOPEsaid, he cordially approved the general scope of the Bill, but had the strongest doubts as to one of the Amendments made in Committee. By Clause 37, as it originally stood, the right of appeal in testamentary causes was to the Judicial Committee of the Privy Council. By the Bill, as altered in Committee, that right of appeal was transferred to the House of Lords. Now, he doubted whether the House of Lords, regarded as a Court of Appellate Jurisdiction, was so perfect, so free from all error or defect, as to justify them not only in continuing the existing system, but in increasing the

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  number of causes brought before it. The defects of the House as a Court of Appellate jurisdiction were felt on all sides last year—a feeling consistent, with the greatest possible respect for the noble and learned Lords who, with so much honour and credit to themselves, administered the jurisdiction—and their Lordships sent a Bill to the other House to remove those defects, which Bill it did not please the other House to pass. Therefore, whatever defects then existed still remained; there was no change in that respect. Moreover, it was admitted that the time of the House as a Court of Appeal was fully occupied by other business; and, therefore he doubted whether it was politic or just to transfer the right of appeal in testamentary causes from the Judicial Committee to the House of Lords. If it should please their Lordships to adhere to the Amendment, he thought it would be incumbent upon them to appoint a Select Committee next Session to inquire whether, not by legislation, but by the exercise of their own powers, it might be possible to place their appellate jurisdiction on a more satisfactory footing than at present.
  THE EARL OF MALMESBURYwished to make a few remarks with regard to the position of the proctors in relation to this measure. It appeared from a statement laid before him by a deputation from that body, which had recently waited upon him, that the entire probate duty paid throughout the country during the last year was £990,000, of which £750,000 was levied in London, and that the result of the measure, so far as the proctors were concerned, would be to reduce their profits from about £90,000 a year to £15,000. Many of these gentlemen had entered into partnership agreements, and depended for their fulfilment on the retention of their professional emoluments. There were, for example, agreements between two proctors, each of whom agreed that if he outlived the other he would pay a certain amount to the survivor's wife or children. Such an arrangement would be rendered impossible by the loss of their profits. He wished to ask the noble and learned Lord on the woolsack whether, taking into consideration the position of these gentlemen, with whom no fault had been found, it was not fair that some compensation should be given to them and to their articled clerks, who had each paid £800 to £1,000 for their position.
  THE LORD CHANCELLORsaid, that
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  the gentlemen to whom his noble Friend had alluded had waited upon him also, and he could entirely confirm the statement of his noble Friend that they were themselves persons of great respectability, and that they represented a most respectable body. In the case of all reforms, it unfortunately happened that what was for the general good must inflict some hardship on particular individuals, who had profited, and not improperly profited, by the system which was about to be overturned. That was a necessity incident to all improvements; and the question where compensation should be given or should be withheld for losses of that kind was always a very difficult and painful one for the person who had to decide it. He was one of those who thought that in order to promote the cause of reform it was very desirable that the Legislature should be liberal in the course it adopted upon these occasions, for he believed that the feeling that they were acting harshly to individuals often stopped useful reforms; and, therefore, if he could see his way honestly and fairly to a recommendation that compensation should be given to those gentlemen, nothing would give him, personally, greater satisfaction than to offer that recommendation to their Lordships. But he could not conscientiously take that course. He believed that all persons who held public offices and whose offices were to be abolished had, de facto, a fair claim to compensation; but he could not admit that there existed a similar right to compensate a whole profession because they would lose a portion of their professional emoluments in consequence of an alteration in the law which it had been found desirable to effect. If compensation were granted in the present instance it would be necessary to appoint Commissioners, who should examine each proctor's books for the purpose of ascertaining the amount of his profits, and who should afterwards have to determine what portion of those profits would be lost under the change in the mode of conducting the business of the profession. It would be impossible to bring any such labours to a satisfactory issue. It could not be done even if it were reasonable. But it would be unreasonable to take that view of the justice of the case. There was an obvious distinction between compensating officers removed from public situations, and compensating private individuals because the adoption of a social improvement would diminish the necessity for their services.

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  He did not think that these gentlemen had as strong a claim to compensation as other parties whose right to such an advantage had been denied by the Legislature. In the present case the professional men who petitioned their Lordships had not so much claim as had been supposed, for the Bill would leave them all the "common form" business—in other words, exclusive practice in ninety-nine out of every 100 cases. It was true that he had been told by one gentleman that the litigated business formed one-third of the practice of the proctors; but that statement was entirely at variance with the information he had received from other quarters. There were but thirty or forty litigated cases in a year, but in the same time there were nearly 30,000 wills and administrations. Under these circumstances he could not think that those parties had any right to compensation. They would receive under the Bill all the advantage which the Commissioners recommended should be extended to them, for they would be left, as long as it should be found expedient, a monopoly of the non-contentious business; and he was convinced that was all their Lordships could do for them.
  LORD WYNFORDinstanced the more liberal manner in which another class of practitioners were to be treated under the 96th clause, compensation being guaranteed to the office-holders in the different episcopal courts throughout the country. A great many of those offices were held by persons who had never practised in any court whatever.
  THE LORD CHANCELLORsaid, he intended by an alteration of the 96th clause in the Bill to restrict compensation, unless in the case of persons who held offices for life, to persons who had actually discharged duties.
  LORD WYNFORDsaid, the statement of the noble and learned Lord was satisfactory as far as it went; but a great many of those who would still be compensated had been appointed since Acts of Parliament had passed, warning them that if they accepted such appointments they would not be entitled to compensation. It seemed to him rather a strong measure to give compensation to them, and to refuse it to the hardworking and expensively educated class of persons, whose case had just been brought under the notice of their Lordships.
  LORD ST. LEONARDSsaid, he thought that the greater number of the
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  officers alluded to by the noble Lord were barred from compensation. The Act the noble Lord alluded to was passed about twenty years ago, and provided that no person subsequently appointed to any office in the ecclesiastical courts, except the Prerogative Court of Canterbury, should have a vested interest in their appointments so as to be entitled to compensation. About ten years ago another Act passed, withdrawing the exception of the Prerogative Court of Canterbury, and, as to future appointments, placing the officers of that court on the same footing as the officers of other ecclesiastical courts. In order, therefore, to give compensation under this Bill, it would be necessary to repeal those Acts. He objected to the compensation clause in the Bill. The noble and learned Lord on the woolsack wished the matter to stand over, and had to-night stated his intention to make some alteration. He should wait to see the alteration of the noble and learned Lord before giving any opinion upon the subject. The only argument in favour of giving them compensation, notwithstanding the provision of these Acts, was that they had held their appointments for so long a time that it would be cruel to deprive them of them without compensation. But as to office-holders having a better claim, because they had been so long in the enjoyment of their offices, he thought that argument was on the other side of the question. They took office with Acts expressly denying them compensation, and with the expectation that the courts would soon be remodelled. If from circumstances the alteration had been postponed for ten or twenty years, instead of taking effect within a short period of their appointment, they had by so much enjoyed greater benefit than they anticipated. It might be true, however, as was stated by thirty-nine of the parties to the petition he had presented, that when they took office they were not aware of the existence of the Acts referred to.
  THE BISHOP OF CHICHESTERwas understood to point out the mode in which the Bill would affect the business and emoluments of the officers of the district Consistory Court of Chichester, but was inaudible.
  THE EARL OF DONOUGHMOREwished to trespass on their Lordships for a few moments while he called attention to the claims of the proctors to compensation. The body of proctors had

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  existed for over 600 years, and every Commission which had sat on the subject of testamentary jurisdiction reported that they had performed their duties with advantage to the public, and admitted that if the practice of the court was thrown open their claim to compensation was irresistible; in point of fact, the Government of which the noble and learned Lord was a Member had admitted their claim, as the Bill which they had introduced into the other House in 1855 provided for giving them compensation. The Bill now under discussion did not, indeed, in terms abolish their business, but did so in effect; as all non-contentious business under £1,500, which formed 79 per cent of the whole, was withdrawn from them. By a clause in the Act of George III. proctors were forbidden to enter into partnership with solicitors: the Bill proposed to repeal that clause, the effect of which would be to deprive the proctors of a portion of their reduced profits; not content even with that, the Bill authorized the Judge of the Court of Probate to admit any person he chose to practise in his court. The proctors had been at great expense in obtaining admission to their profession, and now it was proposed to expose them to the invasion of 10,000 solicitors. Did the noble and learned Lord wish to abolish the order of proctors altogether, and so deprive the country of services which were so valuable in the litigation arising in time of war? He (the Earl of Donoughmore) was as anxious as any person to see the testamentary jurisdiction placed on a better footing; but that might be done without destroying the proctors; and, he trusted the Government, in adopting measures for the furtherance of so desirable a reform, would not overlook the just claims to compensation of a most efficient and responsible body of men.
  LORD WENSLEYDALEsaid, he would not object to give the proctors the exclusive right of conducting contentious suits.
  THE MARQUESS OF WESTMEATHsaid, that the proctors ought to congratulate themselves upon having been able to retain their monopoly so long, and he for one could not recognize in their case any just grounds for granting compensation. Whenever any object was to be effected for the benefit of the great mass of the people, some particular class generally suffered, and he hoped that the noble and learned Lord (the Lord Chancellor) would consider the public, and persevere with the Bill, which had his hearty support.
  Further Amendments made; and Bill to be read 3a on Friday the 5th of June next.

DIVORCE AND MATRIMONIAL CAUSES BILL—COMMITTEE.
Order of the Day for the House to be again put into Committee read.
House in Committee accordingly.
THE BISHOP OF OXFORDasked permission, before the discussion on the proposition to abolish the action of damages for criminal conversation was resumed, to move the following proviso at the end of the 43rd clause—
"Provided, nevertheless, that, inasmuch as by the law of this Realm and Church the bond of marriage hath hitherto been indissoluble, no clerk in holy orders of the Church of England shall, after the passing of this Act, be liable to any censure, penalty, or punishment whatever, in any court, ecclesiastical or civil, for refusing to perform the marriage service over any person or persons who having been married and divorced, shall seek to be married again during the lifetime of the husband and wife from whom they have been divorced under the provisions of this Act."
The right rev. Prelate said that his reason for proposing this clause was, that by the previous clauses the Bill materially altered the relations previously existing between the law of the land and the law of the Church. By the law of the Church the marriages in question could not be solemnized; and it would be a case of hardship to compel clergymen who held conscientious objections on the subject to be agents in the solemnization of them. Some clergymen did not feel any difficulty in the matter, and, besides, there were other means by which the marriages might be solemnized, and he asked that the proviso might be introduced, in order that no clergyman should have his conscience infringed by being compelled by the law of the land to perform certain services which by the law of the Church he felt he could not perform.
THE LORD CHANCELLORsaid, he could not conceive anything more scandalous than that while some clergymen, solemnized these marriages, others should be allowed to decline to do so on the ground of conscientious objections. This was a case which in more than one form had already been under their Lordships' consideration, and their Lordships had always agreed that the objection was one which could not be listened to. It was an objection, too, which might equally have

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been urged in respect to all cases of privilegium.
THE EARL OF CARNARVONsaid, he thought it was not so much the liturgy of the Church of England as the canon law that was in issue in this case. The ecclesiastical law, based on the canon law, held that marriage was indissoluble, and to that ecclesiastical law the clergy were solemnly bound. Now, for the first time, a Bill was framed which allowed marriage to be dissolved. It seemed, therefore unfair and ungenerous in Parliament to place the clergy under the operation of laws which were at variance with each other. The clergy were excluded from any other profession, and now, for the first time, the conditions on which they accepted the sacred office were changed by an ex post facto law. The question was merely one of degree; but suppose that the Bill had gone one step further, and that it granted a divorce à vinculo in the case of incompatibility of temper, would it then have been contended that the clergy, despite their consciences, were to marry again persons so separated? He would not enlarge upon the principle involved in the Bill, because the House had already assented to it; but he believed that its tendency would be to multiply the desire for divorces, guard against it as they would. At all events, he entreated their Lordships not to make the execution of the principle of the measure press unjustly on one particular class of the community.
LORD CAMPBELLsaid, he should be sorry to support any clause which should grieve the consciences of any portion of the clergy, but he regarded this clause as of a most alarming character, for it introduced the principle that there might be a law of the land which all persons were not bound to obey. See what might result from these so-called conscientious scruples. Let their Lordships remember that there were persons who had "conscientious objections" to the payment of tithes and church rates; and if right rev. Prelates set up conscientious scruples as a ground for disobeying the law of the land, they might find that church rates would altogether fail, and that tithes might follow in the same way. It had been said that by a canon of the Church marriage was indissoluble. He could only say that if there were such a canon he was not aware of its existence; those who compiled the Reformatio Legum were not aware of its existence, and none, as far as
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he knew, had been passed since; but, even if it did exist, no canon of the Church could be set up in opposition to the law of the land. There had been hundreds of instances in which the vinculum matrimonii had been dissolved, and such a proviso as was now demanded had never been asked for before. It appeared to him that the proposition was a mischievous one, and he should therefore vote against it.
THE BISHOP OF BANGORsaid, he had always felt great compassion for those who were labouring under what they deemed to be conscientious scruples; but he believed it to be an erroneous conception that the clergy, in such a case as this, could be held to be labouring under any conscientious difficulties. The clergy, in his opinion, had no right to inquire whether any law was according to their own feelings or not, but were bound to act in obedience to the law of the land.
THE BISHOP OF LONDONsaid, that it was a matter of great importance that this question of the canon law should be cleared up. So far as he was informed, there was no canon of our Church which said that, in the event of marriage being dissolved between persons by a divorce à mensâ et thoro, they could not marry again without violating the law of God; but upon the divorce being granted the parties were compelled to enter into a bond that they would not marry again. He believed that was all which our Church said upon the subject. With regard to the ancient canon law, he always understood that it was in our Ecclesiastical Courts regarded as binding only so far as it was not modified by the statute law—therefore he could not acquiesce in the idea that there could be any great difficulty affecting the consciences of the clergy. There was a case, he was informed—that of registered certificates of marriage—in which this sort of liberty had been granted by Act of Parliament to the clergy, that they should not be compelled to accept these registered certificates if they were unwilling to do so. But with respect to this clause he had the strongest objection to the opening words of it, which were as follow—"Inasmuch as by the law of this realm and Church the bond of marriage hath hitherto been indissoluble." These words expressly committed their Lordships to a view in which they were far from being unanimous.
THE BISHOP OF OXFORDsaid, that the canons of the Church of England provided for one kind of divorce only—

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namely, that of a divorce à mensâ et thoro—they contemplated no other and in that particular mode of divorce—the only one which was allowed—it was expressly provided that neither of the parties should contract marriage with any other person during the lifetime of either. The ecclesiastical lawyers said that the reason why this provision was introduced at that time was this, that there was a movement similar to the present going on to legislate by statute that which the Church of England did not allow. The Church of England took this additional caution that they would not divorce the parties until they entered into this bond. There was no question whatever about it, and no ecclesiastical lawyer living would tell them that there was any doubt on the point whether by the law of the Church of England marriage were dissoluble or not. It was all very well for persons who were not acquainted with the ecclesiastical law to say that so and so was his opinion, just as a man who knew nothing of the law of mechanics might doubt one of the simplest propositions in it; but he repeated that no decently learned ecclesiastical lawyer would state that the question admitted of doubt in the smallest degree. The voice of the Western Churches on this point was unanimous. It might be right or it might be wrong—that was another thing;—but that it was the ecclesiastical law of the Church of England at the present moment that the bond of marriage was indissoluble admitted, he thought, of no sort of doubt or contest. As for the introductory words to which the right rev. Prelate had referred, he (the Bishop of Oxford) was perfectly willing to give them up. They were only intended to be introductory; but he did think the clergy were put to a very hard condition. The clergy of the Church of England did not bind themselves when they took orders to celebrate marriages such as these, which were directly opposed to the law of the Church; and he thought, in common fairness, such a new burden on their consciences ought not to be imposed upon them. As the law now stood, the numbers divorced were so few that the divorced party wishing to marry again could, if one clergyman refused to perform the ceremony, easily procure another who would perform it; but by the proposed alteration in the law the numbers would be so greatly increased, that those clergy who had conscientious objections to perform the ceremony would
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constantly be brought into opposition to the law of the land on the subject. Parliament had sanctioned civil marriages at the hands of the registrar, and there was thus every facility for marriage without oppressing the consciences of those clergymen who objected to these unions.
THE BISHOP OF LONDONsaid, the case of his right rev. Friend was this—that by the law of the Church marriage was indissoluble; therefore any clergyman who had celebrated these marriages, rendered legal by Act of Parliament for the last 150 years, had been violating a higher law which he was bound in conscience to obey. To that he (the Bishop of London) entirely demurred. He believed it was true that the Church of England did not contemplate the dissolution of marriage, but the Church of England was ready to obey the statute law of the land. He moreover objected to the statement that by the law of the Church marriage was indissoluble.
THE BISHOP OF OXFORDhad no objection to omit the first words of the proviso, relative to the state of the law; but he would ask his right rev. Friend to produce a decently learned ecclesiastical lawyer, who would not say that marriage was indissoluble by the law of the Church.
Moved, To insert the following clause:—
"Provided nevertheless, that no Clerk in Holy Orders of the Church of England shall, after the passing of this Act, be liable to any Censure, Penalty, or Punishment whatever, in any Court Ecclesiastical or Civil, for refusing to perform the Marriage Service over any Person or Persons who, having been married and divorced, shall seek to be married again during the Lifetime of the Husband or Wife from whom they have been divorced under the Provisions of this Act."
On Question, "Whether the said clause shall be inserted?"
Their Lordships divided:—Contents 26; Not-Contents 78: Majority 52.
Amendment negatived.

CONTENTS.

Norfolk, D.

Chichester, Bp.

Oxford, Bp.

Westmeath, M.

St. Asaph, Bp.

Carnarvon, E. [Teller.]

Arundell of Wardour, L.

Hardwicke, E.

Clifton, L. (E. Darnley.)

Mayo, E.

Congleton, L.

Nelson, E. [Teller.]

Delamere, L.

Portarlington, E.

Ker, L. (M. Lothian.)

Powis, E.

Manners, L.

Romney, E.

Oriel, L.(V.Massereene.)

Dungannon, V.

Petre, L.

Gordon, V. (E. Aberdeen.)

Redesdale, L.

Stafford, L.

Hutchinson, V. (E. Donoughmore.)

Vaux of Harrowden, L.

917

NOT-CONTENTS.

Cranworth, L. (L. Chancellor.)

Brodrick, L. (V. Midleton.)

Byron, L.

Cleveland, D.

Calthorpe, L.

Camoys, L.

Ailesbury, M.

Campbell, L.

Cholmondeley, M.

Clandeboye, L. (L. Dufferin and Claneboye.)

Exeter, M.

Townshend, M.

Clonbrock, L.

Winchester, M.

Colchester, L.

Colville of Culross, L.

Abingdon, E.

Crewe, L.

Airlie, E.

De L'Isle and Dudley, L.

Amherst, E.

De Mauley, L.

Bantry, E.

Denman, L.

Beauchamp, E.

De Ros, L.

Chichester, E.

Dinevor, L.

Clarendon, E.

Downes, L.

Derby, E.

Foley, L. [Teller.]

Effingham, E.

Hunsdon, L. (V. Falkland.)

Fortescue, E.

Graham, E. (D. Montrose.)

Kingston, L. (E. Kingston.)

Granville, E.

Leigh, L.

Grey, E.

Lilford, L.

Harrington, E.

Lyndhurst, L.

Harrowby, E.

Meldrum, L. (M. Huntly.)

Howe, E.

MontEagle, L. (M. sligo.)

Minto, E.

Monteagle of Brandon, L.

Morley, E.

Pomfret, E.

Mostyn, L.

Portsmouth, E.

Penshurst, L. (V. Strangford.)

Stanhope, E.

Yarborough, E.

Ponsonby, L. (E. Bessborough.) [Teller.]

Eversley, V.

Rivers, L.

Sydney, V.

Sheffield, L.(E. Sheffield.)

Stanley of Alderley, L.

Bangor, Bp.

Saint Leonards, L.

Kilmore, &c., Bp.

Sunbridge, L.(D. Argull.)

Abinger, L.

Talbot de Malahide, L.

Alvanley, L.

Truro, L.

Aveland, L.

Walsingham, L.

Belper, L.

Wensleydale, L.

Blantyre, L.

Wycombe, L.

Bolton, L.

On Clause 44. (Dissolution of Marriage to precede action for Criminal Conversation.)
THE LORD CHANCELLORsaid, that when a Bill similar to the present was referred last Session to a Select Committee great discussion took place upon the question whether the action for criminal conversation should be retained or not. Several divisions took place on the subject, but the result was, that no recommendation was made that the action should be abolished, and the Bill was sent down to the other House with the implied sanction of their Lordships, that on that point the law ought not to be altered. Nevertheless, many objections had been made both in and out of Parliament to the continuance of the action for criminal conversation;
918
and, in considering the most expedient mode of dealing with the subject, which he felt to be one of great difficulty, it appeared to him that the Scotch law was, upon the whole, the best. In England the action for criminal conversation was objected to, and in many instances not unreasonably, on a variety of grounds. It was said, in the first place, that it was extremely hard to make, for the obtaining of a divorce, such an action at the instance of the husband a necessary condition precedent. Although the feelings of the husband might be outraged by the bringing of such an action, yet the law imposed upon him the obligation of demanding damages in a public court of justice in order to entitle him to the only practical remedy within his reach. To the second objection he confessed he could not attach much weight. It was to the effect that the investigation of such cases led to the great evil of scandalous details being naturally, if not necessarily, circulated by the public press throughout the country. That was, doubtless, a misfortune, but one inherent in the nature of the subject if it was to be publicly investigated. The action for criminal conversation was not more exposed to that objection than any other public investigation, involving details of an improper character. On a former occasion a noble and learned Lord gave, as an instance, illustrating the objectionable nature of the action for criminal conversation, the proceedings in the Talbot divorce case. But those proceedings took place not in an action for criminal conversation, but at the bar of their Lordships' House, and were incident to an investigation which, whether at their Lordships' bar in the case of a person suing for a privilegium, or before a competent Court according to the provisions of the present Bill, must invariably be made. The same reasoning would exclude actions for seduction and criminal proceedings for rape. In both the difficulty arose from the subject itself, and not from the particular mode in which it might be dealt with. Another objection, pressed with much force by a noble and learned Lord now absent (Lord Brougham) was, that the action was brought by the husband against the adulterer in the absence of the wife, whose character might be irretrievably ruined, without her having had an opportunity of being heard. That was an evil which he did not believe often, if it ever occurred,

919
yet it was one which, when dealing with the subject, they ought to grapple with. He thought that the mode in which he had drawn up the clause entirely obviated the objection, because he did not allow any such action to be brought until a previous proceeding should have established the guilt of the wife. Still it might be asked, "What is the use of retaining the action for criminal conversation?" The first feeling he had upon that point was, that it would be an anomaly in any code of laws to say, that while a gross injury had been inflicted on a man, he should have no remedy against the party inflicting it. An action for criminal conversation afforded some redress, not as a solatium for injured feelings, but in the case of persons to whom damages in a pecuniary point of view might be important. The mere cost of obtaining a divorce might form a legitimate ground for an action for damages. But, further, were their Lordships prepared to say that the apprehension of paying large damages had no weight in preventing the commission of the crime of adultery? He believed it had. Again, if they abolished the action for criminal conversation, what did they propose as a substitute? That was the real practical difficulty. His noble and learned Friend opposite (Lord St. Leonards) had given notice of a clause, whereby he substantially enabled the Court to fine the adulterer to the amount of £500, making the crime a misdemeanour.
LORD ST.LEONARDSexplained that he proposed to make the fine a Crown debt, empowering the Court to apply a portion of it to the payment of the expenses of the divorce.
THE LORD CHANCELLORsaid, he had several objections to the proposal of his noble and learned Friend. It would alter the name of the trial, but nothing more. Precisely the same investigation must take place as heretofore. The proposition was at once technically an anomaly in law and highly objectionable in principle. The adulterer was to be tried for a misdemeanour, and yet, with one or two exceptions, such as the Ecclesiastical Titles Act, there was no crime known to our law for which a particular individual alone could prosecute; the prosecution must always be instituted on behalf of the public. Was the prosecution not to rest with the husband? Or, while called a misdemeanour, was it in reality to be an
920
offence which the husband was to have the power of condoning by prosecuting or not as he might think fit? It was said that the action for crim. con. was little in accordance with the feelings of the community. The reading of the trial and of the disgusting details was little in accordance with the general good taste of the community; but how could the action be said to be at variance with public feeling when the almost invariable result was to give very large damages to the husband? If juries did not think it a reasonable proceeding, they would give a shilling damages, or mark their sense of its impropriety in some other mode. He knew that there were many views on this subject; but after the best consideration he could give it, he had come to the conclusion, that the best course was not to leave the action of crim. con. untouched, as in a former Bill, but to enable it to be brought after divorce was obtained, thus making it a condition precedent that the wife's guilt should be established.
LORD LYNDHURSTsaid, he had not any intention of arguing the general question upon the present occasion, because he had very recently urged, as strongly as he was able, all the arguments which had occurred to him upon the subject; it would, therefore, be idle to trouble their Lordships with a repetition of them. He must leave it to their Lordships to decide upon the weight and authority of those arguments, and those which they had heard from his noble and learned Friend (the Lord Chancellor) and would apply himself to a consideration of the law as it stood. He had stated, on a former occasion, that the law at present was this—that no proceedings for divorce could be taken until after an action had been brought, and damages recovered in a court of law. His noble and learned Friend intended to invert this order of things, and contended that the proper course to pursue in future would be, in the first instance, to obtain a judgment upon the proceedings for a divorce, and then to bring the action for damages for criminal conversation. His noble and learned Friend had given reasons which he considered sufficient to justify this alteration, but he (Lord Lyndhurst) did not think they were sufficient; for his noble and learned Friend had made no answer to the observations which he (Lord Lyndhurst) had made on a former night—that if this new law were beneficial, it ought to extend to all classes of the community;

921
but there was always a large proportion of persons who never would be able to take advantage of it, because they could not take proceedings for dissolving marriage; he referred to the Roman Catholics. Now, if it were proper to continue the action for crim. con., how would his noble and learned Friend reconcile himself to pass a Bill, not extending to all the subjects of the community, but only to a portion. He, therefore, objected to the Bill on this ground. He objected to it on another ground. The object of the measure was stated to be that all the proceedings under it should be as cheap as possible, and should extend to all classes—the poor as well as the rich. Now, as to the poor, the Bill would be inoperative. Suppose a poor man discovered that his wife had been seduced; he might desire to institute an action for damages immediately upon the discovery of the offence; but, according to the Bill, he would have to pursue a double proceeding. He therefore objected to the Bill, because it would put these proceedings beyond the reach of the poorer classes of the community. He did not agree with his noble and learned Friend, that the effect of the Bill would be to diminish the actions of crim. con., and he believed that, instead of diminishing the number of actions, it would have a contrary effect, and the man who had obtained judgment in divorce would say to himself, "The adultery is established, the case is notorious, and I have nothing to do but to go into court, and recover damages according to the view which the jury may take of the injuries I have sustained." Upon these grounds he objected to the specific alteration; and he objected also to the principle of the law as it now existed. He proposed, therefore, to move by way of Amendment, to strike out words in the clause, the effect of which would be to abolish altogether the actions of crim. con.
THE BISHOP OF OXFORDthought the House was arguing this clause at a disadvantage, because the substitute for the action for crim. con. was not before them. If they took away the action, and put nothing of a penal character in its place, it would, undoubtedly, among the lower classes, increase the temptation to adultery.
LORD LYNDHURSTexplained that he had not touched upon any substitute for
922
that form of action, because Lord St. Leonards had given notice of certain propositions with that object.
THE BISHOP OF OXFORDwished to lay stress upon the point, that if they introduced, in any way, facilities for divorce, they should at the same time give a distinctly criminal character to the act of adultery. He agreed in the principle of the Amendments intended to be moved by Lord St. Leonards; but he would not limit the amount of fine. He would give a larger discretion to the Court to assess the damages, and inflict the right amount of penalty on the adulterer. He wished to join in any way in making adultery discreditable. He thought that, among the higher classes especially, the temptation would be less if the adulterer, instead of being invested with a certain sort of mythical chivalry, were represented, as he was, the committer, under appetite, of a discreditable crime. He thought they would not rightly guard the morals of the people unless they combined two things—giving, not to a jury who were capable of being swayed by this or that representation, but to the grave sages of the law, the right of assessing pecuniary damages over and above the loss of the wife's person, for the injury inflicted upon the husband, and inflicting some positive discreditable punishment, such as imprisonment, on the adulterer.
LORD WENSLEYDALEsaid, he hoped the House would not agree to the Amendment of his noble and learned Friend (Lord Lyndhurst) which would take away all civil remedy for adultery. That was the simple point which their Lordships had at that moment to consider, and he thought they would see at once the wrong which would be thereby inflicted on the injured husband. With regard to a remark made in a former debate by his noble and learned Friend (Lord Lyndhurst), to the effect that the Lord Chief Justice had, in the Court of Queen's Bench, characterized this form of action as a disgrace to the law of this country, he (Lord Wensleydale) was quite sure his noble and learned Friend had been misinformed as to what passed in the Court of Queen's Bench on the particular occasion to which he referred, for he (Lord Wensleydale) thought his noble and learned Friend the Lord Chief Justice was too cautious a man ever to have gone so far as to stigmatize in such terms the law which he was sworn

923
to administer, and so to prejudice the case before him. That information must have been incorrect. He (Lord Wensleydale) believed it to be an action coeval with the law of England, which had always held that the husband had an action for the loss of the society of his wife. It had certainly been longer in existence than from the time of Lord Loughborough, who proposed the standing order requiring it to be brought as a preliminary step to a Bill for a divorce—the date which had been assigned to its duration in a former debate on the Bill now under consideration. In the famous divorce case of the Duke of Norfolk, which occurred at the close of the seventeenth century, their Lordships required an action for criminal conversation to be brought by the petitioner, with the view of satisfying them that there was no collusion between the parties, before they would sanction the divorce. The damages were laid at £100,000, and the jury found 100 marks, and Lord Chief Justice Holt reprimanded them for giving so small and scandalous a sum. It has been said that this form of action was peculiar to this country, and unknown to the continental nations. That was a great mistake. It was allowed by the law of Holland, as was held in a full discussion in a recent case in the Judicial Committee of the Privy Council [see Norton v. Spooner, 9 Moore's Cases, 103], It was allowed in France, for there was one general provision laid down in the Code Napoleon, that every man who inflicted a wrong was bound to make compensation to the party injured, and the Court of Cassation had interpreted that provision to include compensation for the injury to the husband in cases of criminal conversation by a civil action. Again, in many countries subject to the Roman law, a penal action, he believed, might be maintained, and a claim for reparation joined. In fact, the principle on which the form of action was founded he believed to be in unison with the law which prevailed throughout a considerable part of the Continent. No one would deny that there must be some compensation for the wrong inflicted in such cases, and what compensation could there be but a pecuniary one? Would any man say that the loss to a husband of the comfort and society of his wife, and of her aid and assistance in the management of his children and his domestic affairs, was a bereavement for which he was entitled to
924
no redress? The arguments against this particular form of action seemed to have resolved themselves into three. In the first place it was said that it was a scandal for a man to receive money for such an injury, and that he ought to be ashamed to make merchandise of his honour. Why, the same objection might be made to the man who brought an action to recover damages for slander, of which it might be said that it was a shame for a man to make merchandise of his character, or for an assault, in which he might be said to make merchandise of his person—or, in fact, for any species of injury which courts of law were in the constant practice of compensating by money, and which they could not, in the nature of things, compensate in any other way. The second argument was, that the trial of actions of this kind involved details the publication of which was injurious to public morals. That again was an argument applicable to the trial of all offences against morality; such offences could not go unpunished, and there must consequently be some exposure hurtful to public morals, unless such trials were conducted with closed doors, which would scarcely be tolerated. The third objection was the hardship said to be inflicted on the wife in such actions by her character being traduced without any opportunity of being heard in her defence. The answer to that argument was that, though the wife was precluded from being heard, it was competent for her to lay all the evidence necessary to sustain her character before the persons defending the action. He thought their Lordships would be of opinion that no case had been made out for taking away the civil remedy of the husband, for the greatest wrong which he could possibly receive. He thought there were very strong objections to the postponement of an action for crim. con. until after a divorce was obtained, for by such an enactment they would preclude their Roman Catholic fellow-subjects from obtaining any redress in the form of compensation for injuries of this nature.
LORD LYNDHURSTsaid, the reason why he did not enter upon the discussion of this subject on a former evening was, because his noble and learned Friend (the Lord Chancellor) had stated in detail his opinion as to what equivalent ought to be adopted for the action of crim. con. He (Lord Lyndhurst) thought it was most un-

925
advisable to discuss this subject piecemeal, as it had been treated by his noble and learned Friend (Lord Wensleydale) that night, but it ought to be considered as a whole in order that they might arrive at a right conclusion. It might be possible that some equivalent could be found for the action of crim. con.; but, if no such equivalent could be suggested, and their Lordships thought it advisable to retain the present form of proceeding, he must of course submit to their decision.
THE EARL OF DERBYsaid, that even if their Lordships concurred in the Motion of his noble and learned Friend, it by no means followed that they affirmed the proposition that the action for crim. con. should be done away with. His noble and learned Friend proposed to do away with the action for crim. con., but to substitute something else for it. If they agreed to the Motion, they would be in this position, that his noble and learned Friend would have the opportunity of proposing, and their Lordships of considering and discussing, his remedy in lieu of the action for crim. con.; and when they had done so, then they would take a division upon the ensemble of the clause, and so ascertain if they could agree upon an equivalent for that action. The words proposed by his noble and learned Friend would not bind the House irrevocably to the abolition of the action for crim. con.; but the action for crim. con., as it now stood, was undoubtedly discreditable to the law of England.
LORD CAMPBELLsaid, it was unfair to suppose that the proposal of his noble and learned Friend (Lord Lyndhurst) was simply to abolish the action of crim. con. without providing any substitute for it; not one of their Lordships who had taken part in this discussion had put forward anything of the sort. What had been asserted was that the action for crim. con., as it now stood, was discreditable to the law of England, and he rejoiced to have that opinion confirmed by so high an authority as the noble Earl (the Earl of Derby). It was, moreover, the almost universal opinion of the English Bar and of the English people. His noble and learned Friend (Lord Wensleydale) had pleaded very ably in favour of retaining actions of crim. con. He knew the abhorrence with which his noble and learned Friend regarded all changes in the law; but he also knew that in various instances, when changes had been made which had proved beneficial, the
926
noble and learned Lord had candidly admitted that his views had been mistaken, and that his fears of such changes had been unreasonable. In the present instance, his noble and learned Friend seemed to think that the abolition of the action of crim. con., which enabled a husband to put money in his pocket by the dishonour of his wife, would be as dangerous to the liberties of the nation as the repeal of the Habeas Corpus Act. The noble and learned Lord was quite right in stating that he (Lord Campbell) had, in open court, stigmatized such actions as a discredit to the country. He would not, however, enter into the merits of this description of actions, which had been admirably canvassed by his noble and learned Friend opposite. It was said that in such actions damages were given by way of compensation; but the object of compensation was to repair an injury done. If a man was deprived of a horse he might recover £100 or £1,000, and buy another as good; but who would maintain that money, whatever its amount, could compensate a man for the seduction of his wife? They had heard some pathetic descriptions of the feelings of a man who had been robbed of his domestic happiness by the alienation of his wife's affections, and did their Lordships think that £10,000 or £100,000 could be any compensation for such an injury? He held that it could not, and he maintained, therefore, that an injury of that kind ought not to be the subject of an action for damages, but that adultery ought to be regarded as a crime of deep dye, and that its perpetrators ought to be liable to prosecution and punishment. It had been said that actions of this description were maintainable in Holland. He had never conversed on the subject with any Dutch jurists, but he had conversed with French, Italian, and German jurists, all of whom were of opinion that it was discreditable to this country that such a form of action should be continued. He remembered on one occasion being told, tauntingly, that the English law permitted a husband to take his wife into a public market with a rope about her neck, and there to sell her. That such was the law of England was universally believed throughout the Continent. When he pledged his honour that that was not the law of England, but that a husband guilty of such an act might be punished for misdemeanour, he was told, "Well, if you deny that, what do you say for your

927
action of criminal conversation?" He only blushed, and said nothing.
"Pudet hæc opprobria nobis, Et dici potuisse, et non potuisse refelli."
He believed that the people themselves were ashamed of such actions, and the consequence was that compromises were effected and verdicts were taken by consent. These cases were mere sham proceedings, undertaken in order to comply with the order of the House of Lords requiring some evidence of damages being recovered. The result, then, was merely to have a display of indecency, which tended to corrupt morals. Let the House take into consideration the state of the unhappy wife in respect to the actions for damages. He had known cases where the wife, who denied the adultery, had instructed counsel to appear for her, and the counsel had been told by the Court, that though he might take a note on his brief, he could not address the Judge or jury, or put a single question to the witnesses. The defendant might at any time suffer judgment by default, and then the wife's honour might be sacrificed by collusion between the plaintiff and defendant. This was not a state of things which ought to be tolerated. However, he hoped that the action would not be simply swept away. He should vote for the Amendment of the noble and learned Lord (Lord Lyndhurst) to leave out all the words of the clause after the word "unless;" but he should do so with the understanding that some substitute, similar in principle to that given notice of by the noble and learned Lord (Lord St. Leonards), should be brought forward. The offence ought to be treated as a crime.
LORD WENSLEYDALEsaid, that never was any charge more inaccurate than to state that he was averse, on all occasions, to changes in the law. The greatest change that ever took place in the history of the common law occurred in 1828, and he (Lord Wensleydale) took a large share in that; and, he might add, that there was no one beneficial change in the common law effected in late years, in which he had not, in like manner, had a considerable share; especially he had assisted in the Amendment of the Common Law Procedure in 1852, and as one of the Commissioners did his best to effect an improvement in the law. Never was a charge more inaccurate than that made by his noble and learned Friend. He was sorry to hear from the noble and learned Lord that it was true that in the Court of
928
Queen's Bench, where it was the duty of the Judge to administer the law as he found it, his noble and learned Friend had stigmatized the conduct of a plaintiff for bringing what he termed a disgraceful action.
LORD CAMPBELLsaid that, on the contrary, he defended the conduct of the plaintiff, because he had no choice, as the law stood, but to bring the action, for the marriage could not otherwise be dissolved. The action, however, was disgraceful.
EARL GRANVILLEsuggested, as their Lordships seemed agreed that there was great objection to the present system of bringing an action for damages, and also that there was difficulty in finding a sufficient substitute, that the Amendment should be now withdrawn, on the understanding that the whole subject should be considered on the Report. The Government would then be prepared to adopt, not exactly the precise words of the proposition given notice of by the noble and learned Lord (Lord St. Leonards), but some sort of substitute which should seem to their Lordships to meet the necessity of the case.
THE EARL OF DERBYsuggested, that the words which his noble and learned Friend (Lord Lyndhurst) proposed to strike out should be omitted, and that his other noble and learned Friend (Lord St. Leonards) should be permitted to insert in the Bill the Amendment he proposed, taking the discussion on the details of the Amendment when they came to the Report. That would leave the Amendment proposed by his noble and learned Friend to be discussed after it had been duly considered by the Government. In the meantime they would have affirmed the principle which they desired to affirm, that the action for crim. con. should be abolished, and that they should endeavour to substitute a proceeding of a penal and criminal character.
THE DUKE OF ARGYLL: The noble Earl had suggested that, so far as the votes of this House were concerned, it would appear that the House would abolish the present system of crim. con. actions without providing a substitute.
THE EARL OF DERBY: No, he proposed that the words should be struck out, the Amendment of his noble and learned Friend inserted, and then considered in the Report, with the understanding that the House was not pledged to the precise details of his noble and learned Friend's proposition.
THE DUKE OF ARGYLL: If it appeared in the votes that the House had adopted the Amendment it would be virtually the abolition of crim. con. actions, with no substitute in the nature of pecuniary compensation and damages.
LORD LYNDHURST: The simple course was to strike out the words from the clause, and upon the Report move the insertion of other words. If the House were then of an opinion adverse to the proposition, his noble and learned Friend (the Lord Chancellor) might move to reinsert the words.
LORD ST. LEONARDSdisclaimed any intention of passing the clause in its present shape; he merely proposed it proformâ his object being to have a proper substitute for the action of crim. con.
EARL GRANVILLEthought that, instead of adopting a clause of which the House did not wholly approve, it would be better to strike it out altogether in the present stage of the Bill, on the full understanding that it was the intention of all parties to provide some substitute for the action of criminal divorce, and that measures would be taken for that object on the Report.
THE LORD CHANCELLORsaid, that he had no objection to striking out at present either the whole of the clause or the words proposed by the noble and learned Lord (Lord Lyndhurst).
THE EARL OF DERBYasked whether the Government would consent to strike out the words proposed to be omitted by his noble and learned Friend (Lord Lyndhurst), and would go so far as to introduce into the clause the first words of the Amendment proposed by his noble and learned Friend (Lord St. Leonards), so that the effect of the clause would be to provide that it should not be competent for any person to bring an action for damages for criminal conversation, but that whoever should commit adultery with a married woman should be deemed guilty of a misdemeanour?
THE LORD CHANCELLORsaid, he had no objection to the arrangement.
Words from the word "unless" to the end of the clause struck out, words:—"That whoever shall commit adultery with a married woman shall be deemed guilty of a misdemeanour," inserted.
Clause, as amended, agreed to.
Remaining clauses agreed to.
On the suggestion of Lord REDESDALE, it was agreed, that the discussion on the
930
Amendments on the 44th clause should he taken on recommittal.
Amendments made; the report thereof, to be received on Thursday next.
House adjourned at a quarter before Nine o'clock, to Thursday next, half past Ten o'clock.