that form of action, because Lord St. Leonards had given notice of certain propositions with that object. THE BISHOP OF OXFORD wished 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 munity; 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-join in any way in making adultery disthe 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 OXFORD thought 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 LYNDHURST explained that he had not touched upon any substitute for creditable. 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 WENSLEYDALE said, 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 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 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 fellowsubjects from obtaining any redress in the form of compensation for injuries of this nature. LORD LYNDHURST said, 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. (Lord Lyndhurst) thought it was most un He advisable to discuss this subject piecemeal, | noble and learned Lord had candidly adas it had been treated by his noble and mitted that his views had been mistaken, learned Friend (Lord Wensleydale) that and that his fears of such changes had been night, but it ought to be considered as a unreasonable. In the present instance, whole in order that they might arrive at a his noble and learned Friend seemed to right conclusion. It might be possible think that the abolition of the action of that some equivalent could be found for crim. con., which enabled a husband to put the action of crim. con.; but, if no such money in his pocket by the dishonour of equivalent could be suggested, and their his wife, would be as dangerous to the Lordships thought it advisable to retain liberties of the nation as the repeal of the the present form of proceeding, he must Habeas Corpus Act. The noble and of course submit to their decision. 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 compen THE EARL OF DERBY said, 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 posi-sation was to repair an injury done. If a tion, 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 CAMPBELL said, 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 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 action of criminal conversation?" only blushed, and said nothing. "Pudet hæc opprobria nobis, He 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. 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 WENSLEYDALE said, 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 improve ment 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 LORD CAMPBELL said 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 GRANVILLE suggested, 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 DERBY suggested, that the words which his noble and learned Friend (Lord Lyndhurst) proposed to strike out should be omitted, and that his other noble and learned Friend (Lord St. Leonards) should be permitted to insert in the Bill the Amendment he proposed, taking the discussion on the details of the Amendment when they came to the Report. That would leave the Amendment proposed by his noble and learned Friend to be discussed after it had been duly considered by the Government. In the meantime they would have affirmed the principle which they desired to affirm, that the action for crim. con. should be abolished, and that they should endeavour to substitute a proceeding of a penal and criminal character. THE DUKE OF ARGYLL: The noble Earl had suggested that, so far as the votes of this House were concerned, it would appear that the House would abolish the present system of crim. con. actions without providing a substitute. THE EARL OF DERBY: No, he proposed that the words should be struck out, the Amendment of his noble and learned Friend inserted, and then considered in the Report, with the understanding that the House was not pledged to the precise details of his noble and learned Friend's proposition. THE DUKE OF ARGYLL: If it appeared Amendments on the 44th clause should be in the votes that the House had adopted taken on recommittal. the Amendment it would be virtually the abolition of crim. con. actions, with no substitute in the nature of pecuniary compensation and damages. LORD LYNDHURST: The simple course was to strike out the words from the clause, and upon the Report move the insertion of other words. If the House were then of an opinion adverse to the proposition, his noble and learned Friend (the Lord Chancellor) might move to reinsert the words. LORD ST. LEONARDS disclaimed any intention of passing the clause in its present shape; he merely proposed it pro formá, his object being to have a proper substitute for the action of crim. con. EARL GRANVILLE thought 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 CHANCELLOR said, 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 DERBY asked 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 CHANCELLOR said, 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 VOL. CXLV. [THIRD SERIES.] 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. HOUSE OF COMMONS, Thursday, May 28, 1857. MINUTES.] NEW WRITS.-For Kerry, v. Henry Arthur Herbert, esq., Chief Secretary to the Lord Lieutenant of Ireland; for Reading, v. Henry Singer Keating, esq., Solicitor General. PUBLIC BILLS.-1° Tenant Right (Ireland); Medical and Surgical Sciences (Queen's University) (Ireland). 2o Joint-Stock Companies, &c.; Princess Royal's Annuity. IRISII CONSTABULARY-QUESTION. MR. HASSARD asked the Secretary of State for the Home Department if the Government intend in this Session to carry out the determination expressed by the Chief Secretary for Ireland, on the 27th of February last, "to introduce a Bill for the re-distribution of the Constabulary Force in Ireland amongst the several counties ?" MR. J. D. FITZGERALD said, he would take upon himself to answer the question, and he had lost no time in bringing the matter before the Chief Secretary for Ireland, who, he hoped, upon taking his seat, would be able to lay a measure before the House. MILITARY SCHOOLS-QUESTION. LORD BURGHLEY asked the Under Secretary for War whether the Government will allow the sons of those adjutants of militia, who are retired officers of the line, to be admitted to the military schools on the same terms as the sons of officers of the army? SIR JOHN RAMSDEN said, in reply, that the officers to whom the noble Lord had alluded, had voluntarily retired on. half-pay, or had received the difference, or had sold their commissions. In either of those cases they would not be entitled to admission to the military schools on the same footing as officers of the army. other cases their sons would be entitled to admission the same as those of officers of the army. 2 H In |