§ 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 913 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 914 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— 915 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 916 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.
917| 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. |
| 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 ARGYLLThe 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 DERBYNo, 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 ARGYLLIf 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 LYNDHURSTThe 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.