Sitting of 19 August 1857

MINUTES.
NEW MEMBER SWORN.—For Beverley, Henry Edwards esquire.
IMPRISONMENT FOR DEBT.

  QUESTION.
  MR. HADFIELDsaid, he wished to ask the Secretary of State for the Home Department whether the Government intend to bring in a Bill next Session of Parliament to abolish imprisonment for debts contracted without fraud.
  SIR GEORGE GREY,said that the matter was under consideration, but he could not give any pledge on the subject.

  SALE OF OBSCENE BOOKS, &c., PREVENTION BILL.—COMMITTEE.
  Order for Committee read.
  House in Committee.
  Clause 1 (Justices may authorize search of suspected premises).
  MR. ROEBUCKsaid, he would beg to ask for information as to the intentions of the hon. Member for Devonport (Sir E. Perry) with regard to this Bill, as the course determined on would to a great extent

  1863
  influence his opposition to the Bill. He should oppose the further progress of the Bill if clauses were not introduced making an overt act preliminary to the issuing of a, warrant, and giving power of appeal from the decisions of the magistrates.
  SIR ERSKINE PERRYsaid, he would adopt the suggestion that two justices should have the power of issuing a warrant under the Act, and that two justices should decide the case instead of one. He would also accept the Amendment of the hon. and learned Member for the Tower Hamlets, making some overt act an essential preliminary to the institution of proceedings, and he would consent to an appeal to the Quarter Sessions being given.
  MR. JAMES WHITE* said, he was favourable to the principles of this Bill, and he was sure the Committee would concur in approving any proper measure, having for its object the suppression of the sale of publications diffusing such moral poison. This almost unanimous feeling of the Committee would render it the more necessary that, in a laudable zeal for a good object, they should be careful not to over-step the limits of a wise discretion and inflict a signal wrong on innocent individuals. So whilst admitting that immense mischief might result from the present unrestrained sale of obscene publications, yet it must be the care of the Committee that their remedy for an acknowledged ill should not be worse than the disease. Hence he ventured to add that this species of legislation was one in which Parliament ought not to indulge without the greatest caution. As this Bill came down from the Lords—on a random information, before a single country magistrate a warrant might be issued to a policeman, who thereby would be empowered (as in despotic states) to make domiciliary visits, that is, to forcibly enter any house, breaking open doors, and forcing open desks and drawers, rifling any cabinet or escritoire, indeed, ransacking one's most private documents or papers, and, moreover, destroying, without appeal, any pictures, print or book, which might be deemed obscene. Since he came into the House, he (Mr. White) was glad to be informed that the Secretary of State for the Home Department would, on a later occasion, make such Amendments in the Bill as would, perhaps, remove its most obnoxious features. This was absolutely required; for to pass the Bill in its present shape it would be imperatively necessary to insert
  1864
  an interpretation clause, or pass a special law to first define what was obscene. He would beg to remind the Committee that there were many truly pious and conscientious persons who deemed all representations of the nude or undraped human form as obscene; and moreover, held that, except when confined to art purposes and studies, such representations were decidedly unfavourable to public morals. Some hon. Members, it would seem, did not agree with him in this opinion. He had in his mind an instance strongly corroborative of what he had before said. In the United States there was a law which decreed the destruction of any obscene publication which might be imported thither. It happened, curiously enough, not long ago, that an American traveller, returning home from Italy, brought with him a copy of that well, known work, describing, with figures, the principal statues, paintings, &c., of the Royal Museum at Naples. The name of this work is Museo Borbonico Reale; its value some £30 or £40; and we have it in the library attached to the House. Now, this very work was, by the Collector of the Customs at New York, deemed obscene; and was then and there ruthlessly destroyed. Since the introduction of the Bill under discussion, he had taken the pains to again look over this work in their library, and he would put it to any hon. Member conversant with its contents, whether such a work (published under Royal authority), could be called obscene; except by one of that class of persons who held the extreme opinions he had before intimated, as to the mischievous effect of all representations of the nude, whether in pictures, statues, &c. Indeed, such scruples, albeit conscientious, were shown to exist in high places even, as was evidenced in the memorable Crystal Palace controversy. Further, to illustrate the difficult and delicate ground they were treading on, he would mention that it was whispered out of doors, that in the event of the present Bill becoming law, it was the intention of certain persons to publish selections from the literary works of the noble and learned Lord (Lord Campbell) who introduced this Bill into the other House, and, moreover, cause them to be made subject to the effects of this new statute. He was not sufficiently acquainted with the writings of the Lord Chief Justice, nor could he say whether any of them would be amenable under the proposed law. It was some years since he had read the Lives of the Lord Chancellors; and the learned Lord's more

  1865
  recent work, the Lives of the Chief Justices, he had, as yet only glanced over, so he must leave to hon. and learned Members better acquainted with the lucubrations of the noble author to decide the question. He had said enough; and he was sure the Committee would not be slow to recognise (and he trusted would remedy) the practical difficulties in the enforcement of a law, to the scone and principle of which he was, as he had before said, entirely favourable.
  THE LORD ADVOCATEsaid, it had been supposed that he was averse to the application of the principle of this Bill to Scotland; but the fact was, that the common law of Scotland already accomplished there what the Bill contemplated.
  MR. AYRTONsaid, he wished to propose an Amendment providing that two householders should be required as security in the case of an information. As the Bill at present stood any unknown person might lay an information against a tradesman's house, which upon that information might be broken open, and his stock in trade ransacked. Such person would have no redress if the information had been laid maliciously.
  Amendment negatived,
  SIR ERSKINE PERRYsaid, it was not his intention to press the Amendment of which he had given notice, namely, in 1.14, after the word 'exhibition' to insert the words 'for gain.'
  MR. AYRTONsaid, he proposed to do so for the hon. Member.
  MR. ROEBUCKsaid, that the exemption was important, as he had no faith in the merciful construction of the Act by magistrates. There was no guarantee that advantage would not be taken of the Bill to effect other objects than were contemplated by it. In justification of a similar statement which he had made last Wednesday, and which the hon. Member for Horsham (Mr. S. FitzGerald) said was a libel on the magistracy of England, he begged to read a letter from Lord Brougham, in which his Lordship said,—
  "In case any one disputes the possibility of a magistrate using an Act made for one purpose to accomplish another, you may remember that in 1841 I presented a petition from some poor men who were imprisoned for nonpayment of what is called Queen Elizabeth's shilling. They were brought before a justice for poaching, and from some informality could not be convicted. So the worthy magistrate asked if they had been at church last Sunday. It appeared they had not been to church for four Sundays, so forthwith they were fined 4s. and the costs, and in default were committed. Upon the petition being presented
  1866
  Lord Lyndhurst, who was then Chancellor, obtained their release, and I doubt if the justice ought to have been left in the commission."
  SIR GEORGE GREYsaid, the only objection the Government had to the words being introduced was that prints might be exhibited in a shop window to induce people to go into the shop to purchase, and a question might arise whether that were an exhibition for gain. He had consulted a high authority on the subject, who was of opinion that such an exhibition would be for gain, and therefore the words might be introduced.
  Amendment agreed to.
  SIR ERSKINE PERRY SIR ERSKINE PERRY moved after the word 'any' to leave out the word 'Justice,' and insert the words 'Stipendiary Magistrate or for any two Justices.'
  MR. CLIFFORDsaid, it was essential that they should be careful in the powers they gave to magistrates. He knew a gentleman who publicly stated in Exeter-hall that he had purchased for a large sum an engraving of a picture of Correggio, and had immediately made an auto da fe of it. Of course people might say in that case a fool and his money were soon parted; but that gentleman was one who was very likely to rise to the position of a stipendiary magistrate, and in that position he might run a muck against all works of art that did not square with his ideas of morality.
  Clause agreed to; as were the remaining, clauses.
  MR. JOHN LOCKE MR. JOHN LOCKE moved the insertion of a clause giving an appeal to Quarter Sessions.
  Clause agreed to.
  The House resumed. Bill reported, with Amendments; as amended to be considered To-morrow at Twelve o'clock, and to be printed.

  DIVORCE AND MATRIMONIAL CAUSES BILL.—COMMITTEE.
  Order for Committee read.
  House in Committee, MR. FITZROY in the chair.
  THE ATTORNEY GENERALsaid, he had now to bring up a clause which he proposed to substitute for Clause 8, relating to the constitution of the Court. It was to the effect that the Lord Chancellor, the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court of Common Peas, the Chief Baron of the Court of Exchequer, the senior puisne Judge for the time being of each of the above-mentioned Courts, and the Judge of

  1867
  the Court of Probate should be the Judges of the new Court. The only alteration which this clause would make in the Bill was the addition of the senior puisne Judge of each of the three Courts of common law.
  Clause added to the Bill.
  THE ATTORNEY GENERALsaid, he had to submit another clause empowering the Judge of Assize, or any other person named in the Commission of Assize or nisi prius, the Chairman or Assistant Chairman of Quarter Sessions, and the Recorder, who were the Judges nominated to exercise the local jurisdiction created by the Bill, to impanel juries and hear and determine petitions precisely as the Court itself would be able to do, and also providing that the orders of such local tribunals should be entered and treated in every respect as if they had been originally made by the Court.
  MR. HENLEYsaid, he thought that the clause failed to provide the local tribunals with the requisite machinery for exercising the powers which it conferred upon them. He would suggest that the officers of Quarter Sessions, both in boroughs and counties, should be made available for that purpose.
  THE ATTORNEY GENERALsaid, he begged to remind the right hon. Gentleman that under the 34th clause the Court had power to make rules and orders upon the sheriff for procuring juries. The words of the clause now proposed would give the local Court the same power.
  MR. HENLEYobserved, he still did not see what machinery was provided for the local tribunals.
  MR. AYRTONremarked, that the Court of Assize was a Court pro hac vice only, and until the commission was opened no steps could be taken.
  THE ATTORNEY GENERALsaid, that his original Motion was to give the jurisdiction to the Quarter Sessions; however, he had since substituted for that the personal authority of the Chairman or Assistant Chairman. He now thought it would be better to withdraw the clause and bring up a new one on the Report.
  MR. SEYMOUR FITZGERALDsaid, he was against entrusting the jurisdiction to the Courts of Quarter Sessions; though he understood how it might be committed to the Chairman or Assistant Chairman individually.
  MR. T. J. MILLERsaid, he disapproved the Court of Assize as a tribunal to carry out this Bill. He also admitted
  1868
  there were objections to the Quarter Sessions; but, upon the whole, he believed they were the best existing local tribunals to which this business could be entrusted.
  MR. PULLERsaid, he thought country gentlemen were the fittest to adjudicate in such matters; he hoped, therefore, the hon. and learned Attorney General would adhere to his original proposal, and entrust that jurisdiction to Quarter Sessions.
  MR. BOVILLsaid, that if the Judges of Assize had to assume this new duty special machinery must be provided to enable them to fulfil it.
  MR. PAULLwas understood to appeal to the hon. and learned Attorney General on behalf of the Recorders, who were generally very much underpaid.
  THE ATTORNEY GENERALsaid, if the Committee pleased he would withdraw this clause, and upon the Report would re-introduce the original clause. He would also take care to insert such words as would make the whole machinery of the Courts of Assize and Quarter Sessions applicable for business to be done in consequence of this Bill.
  Clause withdrawn.
  THE ATTORNEY GENERALsaid, he rose to propose a clause providing that a husband might petition for damages to be paid by the person who had committed adultery with the petitioner's wife. The claim so made should be tried in the same manner and upon the same principles as the existing action for crim. con., and if damages were recovered upon the verdict of a jury, the Court should have power to direct in what manner they should be applied, whether settled upon children, or for the maintenance of the wife, or in any other manner.
  MR. BOVILLobserved, that he regarded the clause most approvingly, as it virtually restored the punishment of the adulterer, and afforded some compensation to the injured husband. The Bill, however, professed to be based upon principles of mutual equity between the husband and wife, but there was no provision that the injured wife should receive damages. He would suggest that if the husband could recover damages an injured wife should be allowed to claim damages from the husband who had wronged her.
  MR. ADAMSsaid, he begged to tender his cordial thanks to the hon. and learned Attorney General for the clause, which was a very reasonable one; for it would have been very hard to absolutely deprive

  1869
  the husband of all claims for compensation from the adulterer. There were cases in which a divorce was not sought, but in which, nevertheless, the adulterer ought to be made to suffer for his wrong-doing. The hon. and learned Gentleman last night had pictured the case of a married woman working in a factory and seduced by her employer, who obviously would have opportunities, which it would be difficult if not impossible to guard against. He (Mr. Adams) himself had known of an instance in which a married woman, possessing very great personal attractions, was employed in a mill, and by her earnings was enabled to support a sick husband and two young children. She attracted the attention of the overlooker in the mill, who made dishonourable proposals to her, which she at first rejected, but afterwards, overcome by his importunities, and with the alternative of starvation for her children and husband, she permitted herself to break her marriage vow. In that case the husband, when he learnt the facts, did not wish for a divorce against the woman who had sinned indeed, but sinned from a feeling of affection. The only resource for the poor husband was to demand damages from the man who had seduced the woman under such circumstances. To meet such cases the provision of the hon. and learned Attorney General would be most valuable.
  MR. MALINSsaid, he wished to express his entire satisfaction with the clause, which, in effect, embodied and carried out, though in a different manner, the old action of crim. con. He thought one of the great blemishes of the Bill would be thus removed. As a discretion would be left with the Court as to the distribution of the damages, he wanted to know whether in the case of a rich husband, who would have no difficulty in providing for his children, and who could possibly have no desire to gain wealth through his wife's dishonour—whether in such case it would be open to the Court to appropriate the damages for the benefit of some charity. [The ATTORNEY GENERAL dissented.] Well, he would not attempt to force the suggestion upon his hon. and learned Friend; at all events, it would no longer be open as a charge against the law of England that a man could bring an action for the price of a dishonoured wife.
  MR. BUTTsaid, he approved of the clause, but he entertained a doubt whether in its present shape it would permit the wife to be heard in her own defence upon
  1870
  any proceding for damages against an adulterer.
  MR. AYRTONsaid, he was anxious to explain that those who had divided the previous evening against the clause which abolished the action of crim. con. had done so, not from any desire to see that form of action continued, but because they had failed to elicit from the hon. and learned Attorney General any pledge that he would provide some substitute.
  MR. PULLERsaid, he regretted that the Government had not taken advantage of the present opportunity to make adultery punishable on all parties.
  SIR JOHN TRELAWNYsaid, he wished to know whether the proceedings in the proposed petitions for damages were to be public, as he believed one of the objections that had been raised against the old action for crim. con. was that it led to the publication of objectionable details. He should also like to know whether a wife was to be made a party to suits of this nature and who was to find money to enable her to defend herself. With respect to claims for damages, he thought they must be very careful not to encourage women to commit adultery in order to benefit their children.
  MR. MALINSsaid, he wished to know whether the right to petition for damages was limited to cases in which there was a petition for divorce or for judicial separation.
  THE ATTORNEY GENERALintimated that the clause was not so limited.
  MR. MALINSrejoined, that he was glad to find that a man might punish the adulterer without being compelled to divorce his wife. With respect to the publicity of the proceedings he thought that was inevitable, and should be very much disinclined to see any secret tribunal established in this country.
  Clause added to the Bill.
  THE ATTORNEY GENERALsaid, he now had to propose a clause to the effect that, when any clergyman of the church of England should refuse to perform the marriage ceremony between persons who but for such refusal would be entitled to the performance of that ceremony, then it should be lawful for any other minister of the Church of England, licensed within the diocese in which the parties resided, to perform such ceremony.
  Clause brought up, and read 1°.
  MR. MALINSsaid, that no doubt the allowing clergymen to refuse to marry any person divorced involved a difficulty with

  1871
  regard to such persons being married in the parish church, and that difficulty was met by the clergyman who had so refused being compelled to give up his church. If, however, it were intended to give way to the conscientious scruples of the clergy in respect to the performance of the marriage ceremony under such circumstances, he thought that the Government should carry that principle thoroughly out, and not require a clergyman to surrender his church or chapel for the performance of a religious ceremony to which he himself, had strong conscientious objections. All clergymen were very particular as to whom they allowed to preach in their churches; and you could not touch a clergyman on a more tender point than the surrender of his church for the performance of any service of which he did not approve. The church was his freehold, was committed to his care, and he felt bound not to permit anything he conceived to be wrong to be performed in it; and if he was entitled to believe the marriage ceremony wrong, he was entitled to believe it so, whether it was performed by himself or any other person. The object of the Government was to conciliate, and therefore he earnestly pressed on the hon. and learned Attorney General whether it would not be better to let the Bill stand as it did, at least until it was found absolutely necessary to make some such provision, which he did not believe would be necessary.
  SIR GEORGE GREYobserved, that this clause had been brought up in fulfilment of the promise made yesterday by his hon. and learned Friend the Attorney General. The object of the clause was to enable divorced parties to be married in their, parish church by a clergyman who did not object to do so, when it happened that the clergyman of the parish had conscientious scruples which prevented him doing so. In the ease of large parishes such a provision was necessary, otherwise considerable inconvenience might arise.
  MR. PAULLsaid, it was clear the church was the clergyman's freehold, and it was left to his discretion to say what were reasonable services to be performed in it. He wished to ask what form was necessary to make a clergyman, who locked up his church to give up the keys? Who was to force him to do it, more especially if he was backed up by his Bishop, and what was the form of proceeding to enable one clergyman to go for this purpose into the church of another?
  SIR GEORGE GREYremarked, the case supposed was not likely to occur. He could hardly conceive it possible that a clergyman and his Bishop would set themselves so directly to oppose the law.
  MR. BERESFORD HOPEsaid, he thought this proviso was calculated to do away not only with all the graciousness but with all the benefit of the concession made last night by the hon. and learned Attorney General. It had no necessary connection with it, but was, on the contrary, wholly different in principle. If the Government had refused any concession, upon the ground that the clergy were the mere slaves of Parliament, bound to admit all doctrines which the omnipotence of Queen, Lords and Commons might enact, he could have understood the principle, while believing it untrue. But by their concession they had abandoned this ground, so he called on them to give consistency to that concession. If there was one principle more clearly established than another, it was the identification of the incumbent and his church. The very name by which he went, persona ecclesiæ proved this. No one could officiate in the church but himself, or his curate, or some other clergyman by his permission, who must be assumed to be for the time being his curate. And yet by the proviso it appeared that though the objecting clergyman was not to be compelled to perform the marriage service himself in the case of divorced parties, yet he was to be forced to open his church to another clergyman, who would be his curate pro hâc vice, to perform the service. He was to be forced to admit a substitute to do that which he would not do himself because he regarded it as a profanation and a sacrilege. There was an old axiom, qui agit per alium agit per se. The clergyman would per alium become guilty of the profanation and sacrilege. And in whose behalf was this to be done? In behalf of persons who had committed a great sin in the sight of God and man. The nice scruples, fine feelings, and delicate susceptibilities of these persons were to be carefully guarded, and they were on no account to be put to the shame and disgrace of being married out of their parish church, The Home Secretary spoke of the difficulties that might arise in large parishes, but the proper remedy in such cases was to permit the solemnization of marriages in every church in large towns. He hoped that this proviso would not pass, as he was anxious that what was meant to be a concession

  1873
  to the clergy, of whom eleven-sixteenths had made this solemn protest, should in reality be so. He was anxious that by their answer to the protest, the Government might send peace and not a sword into the Church.
  MR. PAULLsaid, he would beg again to inquire what mode of proceeding would be adopted to force the clergy to allow such marriages in their churches.
  MR. AYRTONsaid, he thought that hon. Members on the ministerial side of the House had reason to complain of the statements made on the other side, that there was a unanimous feeling yesterday in favour of the concession made to the clergy. He believed the proposition respecting the clergy would have been almost unanimously rejected by hon. Members on the ministerial side, had it not been that they were promised a qualification which would reserve the rights of the laity. There never was a greater concession made to personal scruples than this. They heard yesterday from the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole), that it was the doctrine of the church to recognize these marriages, and yet they had given in to the scruples of individual clergymen on the subject, not sanctioned by the doctrines of the Church of which they were ministers. He did not now complain of the concession which had been made, but he objected to the attempt being made to separate that concession from the question now before the House, and regarded that attempt almost as a breach of faith. He contended that great injustice would be done to the laity if the condition proposed by the hon. and learned Attorney General were not accepted by the Committee. The use of the parish church was a right vested in the laity as much as the right to minister in it was vested in the clergyman; and the laity had a right to say that, though they would respect the scruples of their minister, they would nevertheless insist upon having the use of the parish church for purposes not inconsistent with the doctrine of the Church of England. They were bound to legislate for the great majority, as far as they could, and not merely for the small minority of the Church, and he would remind the hon. Members that the Church consisted of laity as well as clergy. Enough had been done to satisfy the scruples of the clergy, and be hoped Gentlemen opposite would not oppose the clause with the qualification which was considered an
  1874
  indispensable condition by the majority of the Committee.
  MR. NEWDEGATEwas understood to express a hope that no one would doubt that he was a Protestant when he objected to having his opinions represented by any one but himself in that House. The hon. Member for the Tower Hamlets (Mr. Ayrton), might arrogate to himself the right of expressing the feelings of those who sat on his own side of the House; he (Mr. Newdegate) spoke only for himself. The hon. and learned Attorney General, in making his proposition yesterday, warned them that this concession was not unlikely to produce disorganisation in the Church. He Mr. Newdegate) felt the force of that warning. And now the Committee saw the conclusion at which they arrived. The Church of England was strictly divided into parochial districts. He looked upon the clause as an attack upon that system, and he therefore thought that upon that point the hon. and learned Attorney General was wrong. He could not concur in the arguments of the hon. Gentleman opposite (Mr. Aryton) in respect to that portion of the clergy of the Church of England who conscientiously objected to the marriage of divorced parties. He disputed the fact that what was alleged to have occurred, on the occasion referred to, had determined the doctrines of the Church of England on this point. He contended that those who objected to the re-marriage of the parties had strong grounds for their objections, and he trusted that they would not be considered sectarian in consequence. It appeared to him that the clause as now framed would lead to an infraction of the parochial system, which he considered as essential, as far as anything could be essential, to the proper ministration of the offices of the Church. Why, he asked, should not the Court that granted the divorce give a licence to the parties to be married elsewhere than in their own parish church? Why should not the Court take cognisance of such matters and follow practically the example now set by the House of Lords? The parties who were thus anxious to be married need only walk a little way over the boundaries of their own parish and have the ceremony performed in the next parish church, pursuant to the licence granted them by the Court, if the minister of such church had not any conscientious objections to perform the ceremony. But he trusted that the conscientious feelings of the clergy upon this question would not be

  1875
  used to break up the parochial system of the Church of England. Much grievous confusion would, he thought, be avoided by the adoption of the simple remedy he suggested, namely, that of empowering the Court that granted the divorce, to give the parties a licence to be married elsewhere than in a church the clergy of which objected to perform the marriage ceremony in regard to parties who had been divorced on the ground of adultery.
  MR. RIDLEYsaid, he must express his surprise and regret that the understanding which had accompanied the acceptance of the concession which had been made to the consciences of the clergy the day before, was now to be questioned. Unless he and those on his side of the House had understood that the concession was to be taken as a whole, it would not have been assented to and allowed to pass sub silentio by those who were of opinion that the clergy were bound to obey the law, but who were yet willing to yield something to their conscientious scruples. He trusted that the opposition to the proviso would not receive encouragement from those hon. Gentlemen who sat on the front benches of the opposite side of the House.
  LORD JOHN MANNERSsaid, he was surprised to hear the hon. Gentleman state that hon. Members on his side of the House had entered into any agreement with the Government to accept the proviso as shadowed out by some observations of the hon. Member for the Tower Hamlets (Mr. Ayrton). They had entered into no such agreement with the Attorney General. So far from having done so, they had voted against that hon. and learned Gentleman's proposition. And now they were to be told they were absolutely precluded from urging their objections against the proposed clause, because they had accepted the proposal of the Attorney General, which they had on the contrary opposed. He confessed he regarded the Amendment of the Attorney General with very little favour. It was but a partial and inefficient concession to the scruples of the clergy. It was, however, rendered much more objectionable by the proviso which had been introduced into it at the instance of the hon. Member for the Tower Hamlets. He was a little surprised when the hon. and learned Attorney General yesterday said, that the concession he was about to make would probably turn out to be a fatal boon bestowed upon the clergy. He could not conceive how a concession to the conscientious
  1876
  scruples of no less than 11,000 of the clergy of this country could be regarded as a fatal boon, or how it could be fraught with injurious consequences to the Church. But viewing that concession by the light that now streamed on it, he (Lord J. Manners) owned that the hon. and learned Gentleman had good reason for saying he was bestowing a fatal boon upon the clergy. He wished the Committee before they sanctioned this new proposal, to consider what would be its effects on the parochial clergy. It was clear it was contrary to the settled order and constitution of the parochial system. Hitherto no clergyman had been permitted to trespass upon the sacred functions of another. Were they, for the first time in the history of the Church, in a thin House to infringe this great principle, and import into the relations of Church and State this novel and fertile source of strife? But they were told that the clergy were bound to obey the law. So they were—or to throw up their cures. And he apprehended that a consideration of that alternative was at the bottom of the concession
  which the Government had made. It was recollected that only a few short years ago that alternative had been submitted to the clergy of one of the Established Churches of this realm; and the Committee was aware that a large portion of the Prussian clergy were only retained in the performance of their functions because the State, according to Von Gerlach, connived at their violation of the law. And why? Because the State knew that if they ejected those conscientious clergymen from their cures, for disobedience to the law, they would bring about a state of things infinitely worse and more mischievous than the present. Baron Von Gerlach, in speaking on this matter, allowed that there was an element of lawlessness in the conduct of the clergy. "But," he said, this defiance of the law is sacred; it is the germ of Divine right; it is like what took place in Jerusalem when the Apostles said, We ought to obey God rather than man.' "It became, then, a matter of expediency, on the part of the State, and he would ask the Committee to consider whether the proviso of the hon. Member was not calculated to bring about that state of things in which the clergy must either retire from their cures or obey the law. The question then came, whether it was desirable to drive things to that pitch when it became necessary for any considerable section of the

  1877
  clergy to consider whether they should obey the law of God or man. He supposed it was the conviction that it was not, that led the Government to make the very limited concession which they had done on this point, but which it was now proposed to deprive of all its grace by the addition of the present proviso. They were going to call in one of the neighbouring parish priests to do that in a church which the clergyman of that church conscientiously thought should not be done. Could anything be conceived more likely to excite strife and heartburning amongst the clergy? But the hon. Member for the Tower Hamlets said that this clause would inflict injustice upon the laity of the Church of England, and he spoke as if the whole body of the laity were about to commit adultery. But all that they were about to do was to say that those who committed this heinous sin against God and man should not be married in the parish church if the clergyman had a conscientious objection to it. He did not think that even if they were bound, which he did not admit, to consult the feelings and susceptibilities of the adulterer and adultress—he did not think that these persons could be desirous to be re-married in the very church in which, perhaps, they had been one or both of them first united. Could it be supposed that any person would wish to be united in such wedlock in that church where his or her first and purer marriage had been celebrated? Was it not likely that they would prefer to be married in any other church than that with which all their holier, happier, and purer aspirations were connected, and where their history was not known? He hoped the Committee would reject the proviso.
  MR. PULLERremarked, that this proviso had been suggested without considering the great offence which it would most assuredly give to the consciences of the clergy. There was no great necessity for it, for there would be, generally speaking, little sympathy with those divorced persons, and if an adulterer had to go to another parish to reside three weeks before being re-married, or to the superintendent registrar's office, the general feeling would be that it served him right. If those who had to seek about for a clergyman to re-marry them were restricted to clergymen within the same diocese, the enactment would be a dead letter, for no clergyman would be disposed to encounter the odium and ill-feeling which would be engendered
  1878
  by his taking possession of his neighbour's church and performing there a service which was opposed to the religious scruples of the incumbent. By the clause carried yesterday by the Government the remarriages of those persons made were an open question in the Church of England; those who were opposed to them would probably enunciate their views from the pulpit, but how greatly would the respect of the congregation for their pastor be diminished if they saw a neighbouring clergyman brought into their church to perform a marriage which the day before they had been told from the pulpit was contrary to the law of God.
  SIR DENHAM NORREYSsaid, he thought the Government as firmly pledged to carry this proviso to the best of their power as they were to any enactment to which they had given their support.
  SIR WILLIAM HEATHCOTEobserved that this step taken by the Government was one of the most unfortunate they had taken during this discussion. It was calculated to do away with the effect of the concession they had made the previous day, and would deprive it of all its grace. The Government had stopped short of the concession which was required to meet the scruples of all the clergy, but was that any reason why they should clog what they had assented to by an ungracious restriction? He viewed with alarm the dangerous innovation this proviso would introduce into the parochial system, as it would give an adulterer who did not shrink from exposing his shame an opportunity of indulging any antipathy he had conceived against the clergyman of his parish by calling in another clergyman to marry him; and the result would be to create and perpetuate enmity and strife between this man and the clergyman of the parish. On the other hand, a man who did not desire to expose his past life to his neighbours, who might be ignorant of it, would never call their attention to it by attempting to enforce this proviso, which would then become a mere dead letter. He denied that hon. Members on his side of the House had been any parties to a compromise with the Government on the previous day. The concession of the Government was made from a fear of being defeated if they adhered to the Bill as it stood.
  THE ATTORNEY GENERALsaid, that he certainly considered the proposition

  1879
  of the hon. Member for the Tower Hamlets as part of the arrangement come to on the previous day.
  SIR WILLIAM HEATHCOTEsaid, that if the hon. and learned Attorney General thought so he was no doubt bound by it; but it was clear that hon. Members on that side of the House were free from any such engagement, because they had voted against the concession of the hon. and learned Attorney General, and it could not therefore be said that they, in consideration of receiving it, agreed to accept the present proviso.
  MR. BUXTONsaid, there was a great difference between the concession made yesterday and that now demanded by hon. Gentlemen opposite. That rested on a conscientious scruple, but this was merely founded on a personal feeling, arising from a mistaken notion that the incumbents were proprietors of the churches.
  MR. HENLEYsaid, he thought that the hon. Gentleman was drawing rather a subtle distinction. The incumbent, he believed, had always been held to have a property in the church, and no clergyman could go into a church and celebrate Divine Service there without the consent of the incumbent. Unless it could be shown that some injury would be done, the proposition made by the Government yesterday ought not to be clogged with this restriction. The number of cases which the proviso was intended to meet was not large, and he would put it to the Committee which was likely to be the greater inconvenience—that an adulterer who wished to remarry should, if the clergyman of his parish objected to re-marry him, be obliged to go and reside three weeks in another parish, or that violence should be put upon the consciences of the clergy? It would have been far easier to wait until the apprehended inconvenience had arisen, and then to make a law to meet it. He believed that the inconvenience would never arise, because if it were not insisted upon as a right, many clergymen would admit others to their churches who would kick against it if it were made a matter of law. What a scandal this provision would create in small parishes, where everything was known, and in what a difficult position would it place a clergyman who was asked to perform the marriage ceremony in the church of another parish. Moreover, whenever the proviso was put in force, it would be carried out in an offensive and ostentatious
  1880
  manner, and thus strife and heart-burnings would be created.
  SIR JERVOISE JERVOISEsaid, he believed that if this proviso were not carried, the effect of the clause would practically be, to drive divorced persons to be remarried in the registrar's office; as, if the Bishop were adverse, the churches in the diocese would be closed against such parties.
  MR. NEWDEGATEsaid, it was not, he believed, the intention of the Legislature to drive these parties to the registrar's office, if they could find a clergyman willing to marry them. And if the opinions of the hon. Gentleman opposite were not opposed to the teachings of the Church of England, such persons would have no great difficulty in finding clergymen willing to perform the marriage service.
  MR. STAPLETONsaid, he wished to know whether the effect of passing the clause would be to enable the party divorced for adultery to compel the clergyman who was not obliged to celebrate the marriage to proclaim the banns? If that were so, the benefit of the boon to the clergy would be, in a great measure, taken away.
  MR. GRIFFITHremarked, that he should oppose the proviso. He did not think that the benefit which it would confer upon a small number of persons, undeserving of sympathy, would at all compensate for the excitement and scandal which would be caused in parishes where it was put in operation.
  Motion made, and Question put, "That the said clause be read 2°."
  The Committee divided:—Ayes 73; Noes 33: Majority 40.
  Clause read 2°.
  MR. NEWDEGATEsaid, he rose for the purpose of proposing words more thoroughly in the sense in which the Committee had been acting. It was very likely he should be met with a technical objection; but he wished to put on record the fact that when he supported the concession introduced by the Government into the 53rd clause—a concession which he had himself urged—he did not do so blindly. He had supported that concession for the purpose of applying a remedy to an evil, and not for the purpose of creating the difficulty which had evidently arisen with reference to the organization of the Church of England. By the common law of England the church was the freehold of the clergy; and by the Ecclesiastical law the

  1881
  clergyman was accountable for the due conduct of the service, and for the conduct of those who officiated within the church. Under those circumstances there could be no doubt that the law cast a heavy responsibility on the clergy, and they would feel it a most grievous hardship upon them to have it declared, as it would be by the proviso now under discussion, that, no matter how widely the views of another clergyman might differ from those of the incumbent of a particular church, that other clergyman would be empowered to perform in the incumbent's church, a ceremony against which the House itself had, by its own legislation, admitted he (the incumbent) might entertain a conscientious scruple. He (Mr. Newdegate) could not conceive a stronger case; and it appeared to him that their concession had created a difficulty which he, by his support of that concession, had wished avoid. The concession itself would not have produced a difficulty; but it did so when coupled with the proviso, to which he should, to the last, strongly object. To remove danger to the organization of the Church, he begged to move the insertion in the clause of words providing that the Court which pronounced sentence of divorce might grant to either of the persons whose marriage was thereby dissolved, a licence entitling such person to apply for the performance of the marriage ceremony to any incumbent, not being the incumbent of the parish in which he resided, and that such licence should enable any incumbent to marry such person. He did not think there could be any difficulty in the Committee acceding to that proposition, if they intended, as he thought they had intended, to do an act of conciliation and concession. The Committee should remember that they were now undertaking to decide a point of doctrine. Many hon. Members objected to religious doctrines being considered in that House at all. He did not share in these objections, but he thought that, when the House undertook to entertain such points, it was their bounden duty to preserve the organization of the Church of England. Yet, the proviso which they were about to introduce into the Bill placed them at variance with the great body of the clergy of the Church of England. He might, indeed, say the feeling against it would be unanimous. What the Committee had done was, in the first place, to deal with a matter involving a point of doctrine, and now they were about to interfere with a system of organization that
  1882
  had, for so long a period, prevailed in the Church of England. He begged to propose the insertion of the words which he had just stated.
  SIR GEORGE GREYsaid, that the words proposed by the hon. Member could not be inserted as an Amendment to Clause 53, but should be moved as a separate clause.
  THE CHAIRMANdecided that the words should be proposed as a separate clause.
  On the Question, "That the clause be added to the Bill."
  MR. SPOONERsaid, he wished to call the attention of his hon. and learned Friend the Attorney General to the fact that, under the proviso as it stood, the clergyman who undertook to perform a marriage ceremony in the church of another clergyman could demand admission for that purpose, without the slightest limitation as to the day or hour. "No, no!"] Well, he should like to hear the words which provided for any such limitation. In most parish churches there were now three services on Sunday, and in some four; and as most of the lower class, and many of the middle, had their marriages on Sundays, much inconvenience would be fell if some such limitation as that to which he had referred were not provided. The clause itself was of a most offensive character, and perfectly unnecessary, as he (Mr. Spooner) was convinced that, if Parliament legalised such marriages as those contemplated in that proviso, no clergyman, whatever might be his own conscientious scruples, would refuse to grant the use of his church for such purpose, if properly requested; but it was worse than useless—it was very dangerous—as it broke through a most important and long-established principle, that no person has a right to interfere with the ministrations of a church but the clergyman to whom such ministrations had been entrusted.
  THE ATTORNEY GENERALsaid, he considered that every hon. Gentleman who voted with him on the previous day, when he introduced his Amendment to the 53rd clause, had pledged himself to vote for the proviso now under discussion. No inconvenience would, in his opinion, arise from the proviso. With regard to what had fallen from the hon. Member for North Warwickshire (Mr. Spooner), he might add that there was not the least cause for apprehension that the incumbent of any church would be liable to any censure for

  1883
  declining to render up the church when he was performing duty there.
  MR. MALINSsaid, he had voted with the Attorney General for his Amendment to the 53rd clause, but certainly had not pledged himself to vote for any such proviso. He believed that this proviso would not work, and therefore it did not meet with his approval.
  MR. NEWDEGATEsaid, that to attempt to move as a separate clause the words he had proposed would at that period of the discussion on the Bill be useless, and he was, therefore, compelled to abandon his attempt to meet a very great difficulty by what appeared to him to be a very simple and unobjectionable arrangement.
  MR. WALPOLEobserved, that having stated last night that the concession made by the Government was likely to give general satisfaction to the clergy, he felt bound to say that he thought the proviso introduced by the Attorney General both ungracious and uncalled for; and, further, that it would altogether do away with the effect of that concession. The proviso introduced a new principle, the practical operation of which he doubted would be material to any great extent; but it was unnecessary, and, as he had before observed, did away with the concession intended. The proviso did necessarily interfere with the parochial system of the Established Church, and mischievously, as giving room for differences between clergymen who lived near each other. Supposing the clause to be called into operation—which he hoped and believed it never would—it must necessarily have the effect of diminishing the proper influence of particular clergymen in their own parishes. Even clergymen who did not entertain the conscientious convictions expressed by the great body against the marriage of persons who had been divorced, would be opposed to this interference with church organization. He therefore put it to the Government whether they ought, even now, to persevere in making the proviso stand part of the clause.
  Clause, as amended, ordered to stand part of the Bill.
  MR. PULLER MR. PULLER moved a clause to provide that, in proceedings against a husband for a judicial separation on the ground of adultery, the Court should have power to order that the person with whom he was alleged to have committed the adultery should be made a co-respondent. This provision had been already made in the case
  1884
  of petitions for the dissolution of marriage, and he believed it to be more necessary in these cases.
  Clause brought up and read 1°.
  THE SOLICITOR GENERALsaid, he thought the clause would require some consideration. It would introduce a new feature that would involve the necessity of several other changes.
  VISCOUNT PALMERSTONsuggested to the hon. and learned Gentleman (Mr. Puller) to propose his Amendment on the bringing up of the Report.
  MR. HENLEYremarked, that the course proposed by the noble Lord would be the more advisable one.
  MR. PULLERsaid, that he had understood the Attorney General to intimate that he would consent to the Amendment.
  Motion made and Question, That the clause be read a second time, put, and negatived. The Preamble agreed to.
  House resumed; Bill reported, with Amendments; as amended to be considered To-morrow, at Twelve o'clock, and to be printed.

MARRIED WOMEN'S REVERSIONARY INTEREST BILL.

  LORDS' AMENDMENTS.
  Order for considering the Lords' Amendments to this Bill read.
  MR. MALINSsaid, that the Lords had introduced an Amendment which would prevent the Bill applying to existing interests, or to any interest arising before the 31st of December next. He regretted this circumstance very much; but still he recommended the House not to reject the Bill by refusing to agree with any of the Lords' Amendments.
  Amendments agreed to.
  House adjourned at Five o'clock.