that she was an adulteress; and as the and would have granted money-compensamoney compensation was assessed in pro- tion only in cases in which the very fact of portion to the loss sustained by the plaintiff, the action would have proved that no such it was the interest of the defendant to prove compensation was deserved. No man, cut that she was an abandoned woman, and that to the soul by the infidelity of his wife, what the plaintiff had lost was really of no would unnecessarily parade his sorrows bevalue. We do not aver that this was al- fore the public eye, or turn them into merways the practice in these actions, for an chandise. Some such considerations as these adulterer may have some tender compassion seem to have influenced the House of Lords. for the partner of his guilt, and may take The good sense and good feeling of the upon himself, at all hazard, the onus of the majority revolted against these public excrime. But we do say that it was the ne- hibitions, either as a preliminary, or as a secessary tendency of the system to make the quence of divorce, and the objectionable proof of the woman's licentiousness a thing compromise was expurgated. to be established by plaintiff and defendant, But some may exclaim that the moneyand that, if not instructed to the contrary, payment was not to be regarded solely in the defendant's counsel was only too likely the light of compensation to the injured parto endeavour to prove, in mitigation of dam- ty. It was a punishment, it may be said, ages, that his client was less the betrayer righteously inflicted on the guilty one. It than the betrayed. And yet, with these was, practically, too often a punishment infearful odds against her, the wretched wo- flicted on one guilty person for the benefit man could not appear in person or by counsel; she was not admitted as a witness, and she was not a party to the suit. On the terrible injustice of this we need not comment. The evil is admitted. The scandal is condemned to death; and ere long we shall talk of it, as we now do of the thumbscrew, the "boot," or any other instrument of legal

torture.

of another. For many a negligent, unkind husband, whose wife, under gentler treatment, might have been true to him to the end of her days, has been thus rewarded for his culpable neglect. Our own opinion is, that very few good husbands are ever deserted by their wives. But whether this be so or not, any change which inflicts the deserved punishment, without granting the unThe clause, however, of the Chancellor's deserved "compensation," is a change for bill, which abolished these preliminary ac- the better. Under the old system, the law tions, was not a satisfactory one, for it per- recognised an injury done to the husband mitted actions for damages to be brought whose wife was unfaithful to him; but, the after dissolution of marriage had been de- non-existence of the woman being complete, creed by the Court. A reversal of the pre- the wife whose husband was taken from her existing system was contemplated in the by another woman, was not compensated for draft-act submitted to the House of Lords; her loss. And yet it is true, that although, for whereas, by the old law, no dissolution as before said, good husbands rarely lose of marriage could be granted until an action their wives by infidelity, good wives often for criminal conversation had been brought, lose their husbands. The principle of comthe new law proposed that, "after this Act pensation was, indeed, but imperfectly carshall have come into operation, no action ried out in practice, even if it had been one shall be maintainable for criminal conversa- for which any man or woman of right feeltion, unless the person bringing the same ing could entertain the least toleration. It shall have first obtained, under the provi- was bad in every point of view. The Lords, sions of this Act, a final decree dissolving therefore, wisely and well, swept away the his marriage." This did not render the ac- action for criminal conversation, even in the tion for criminal conversation compulsory new and mitigated form proposed by the upon the injured person; it simply permit- Lord Chancellor's bill, and substituted thereted it. In practice, therefore, the proposed for punishment in a simpler and less quesnew system might be less objectionable than tionable shape. It were surely better to the old; but in principle it appears to us to allow the Court to inflict a fine on the of An action brought, after the fender, than to leave it to a jury to assess great object of divorce à vinculo matrimonii damages for a doubtful injury. After hearhas been obtained, can have only two ob- ing such evidence as will enable the Court jects, and those the basest, in view--the to decide upon the question of a dissolution gratification of avarice, and the gratification of marriage, it will assuredly be in a posiof revenge. Such actions would be brought tion to estimate the amount of criminality only by unworthy persons. The proposed attaching to the parties whose conduct it has law, indeed, would have encouraged and re-investigated.

be worse.

warded the exercise of the vilest motives, | The Lord Chancellor's bill having provid

66

The author of the "Review" before us quotes also a passage from Mr. Macqueen's Treatise on the Appellate Jurisdiction of the House of Lords, a portion of which runs in the following words:

:

ed that any husband may petition the new caulay, in the passage quoted, appears to us Court for a dissolution of marriage, on the merely to say that Dr. Johnson had some ground of the adultery (in any form) of the peculiarities of moral character appalling to wife, proceeds to state, that the wife may civilized people. Now, in the first place, petition, in like manner, on the ground of moral character is one thing, and opinions certain forms of adultery committed by the on questions of morality another. A man husband. "It shall be lawful," says the bill, may have a very unsound character, and yet "for any wife to present a petition to the inculcate very sound opinions. In the next said Court, praying that her marriage may place, even if there were no such distinction be dissolved, on the ground that, since the as this-if Macaulay had written that Dr. celebration thereof, her husband has been Johnson had some opinions on questions of guilty of incestuous adultery,* or of bigamy, morality appalling to civilized people, it or of adultery, coupled with such cruelty as, would by no means be apparent that this without adultery, would have entitled her to "matrimonial doctrine" was one of them. a divorce à mensâ et thoro, or of adultery The passage, indeed, is as far off as well coupled with desertion, without reasonable could be from "a commentary on Dr. Johnexcuse, for two years or upwards." This son's matrimonial doctrine." We confess, limitation of the privilege of the wife to sue therefore, that we are not satisfied with the only in certain aggravated cases of marital mode of disposing of the dictum of the infidelity, is considered by many wise and great moralist." good men to be a serious defect in the bill. It is contended, that justice and morality demand that the man and the woman should be placed on an equality-that what constitutes in the woman a sufficient offence to entitle her husband to sue for a dissolution of marriage, ought to confer the same right on the wife when committed by the man. We have, on a former occasion, expressed ourselves so fully upon this subject, that we do not now purpose to enter at any length into a question so delicate and difficult as that which is involved in this claim for equal privileges. The author of a recent excellent pamphlet on the Divorce Bill of 1856, the title of which we have placed at the head of this article, scouts the dictum of Dr. Johnson, that "the difference between the two cases is boundless;" and quotes at some length a speech of Lord Lyndhurst, delivered last year with reference to the bill of 1856, upon which this year's bill is a manifest improvement. In this speech, after citing the passage in Boswell's Johnson, which we recently quoted, Lord Lyndhurst, went on to say, "I will read to your Lordships the observations made on this passage by a moralist of late years: The manner in which the earlier years of his (Johnson's) life had been passed, had given to his demeanour, and even to his moral character, some peculiarities appalling to the civilized beings who were the companions of his old age.' That is the commentary of Macaulay on Dr. Johnson's matrimonial doctrine!" Is it? Mr. Ma

* By incestuous adultery, the Bill signifies "adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage, by reason of her being within the prohibited degrees of consanguinity or affinity."

North British Review, Vol. xxiii., No. xlvi.,

Article "The Non-existence of Women."

"Now, although it cannot be denied that the crime of adultery is very different in a wife, who, by her infidelity, may impose a spurious issue upon her husband, it is equally certain that the protection of his rights as regards spurious progeny ought not to be regarded as the only object nature, such as gross cruelty, living in open adulof divorce; and that misconduct of an outrageous tery with another woman, refusal to cohabit, or such incidents generally as entirely frustrate the very objects of the matrimonial union, ought either to be made severely punishable, or to be allowed as grounds of divorce to be obtained by

the wife."

Now, it need not be said that this passage tells not against, but in favour of our argument, which goes no farther than that simple adultery on the part of the husband, without the aggravating circumstances of cruelty or desertion, does not constitute sufficient ground for divorce on the petition of the offended wife. The Bill introduced this session into the House of Lords, and thence sent down to the Commons, contemplates the admission of aggravated cases of marital adultery as grounds for divorce; some of the circumstances, indeed, glanced at by Mr. Macqueen in the above passage, are taken into account. Whatsoever acts of cruelty, as, per se, would have afforded grounds for separation à mensâ et thoro, superadded to marital adultery, make up a gravamen sufficient to entitle the wife to petition for dissolution of marriage; and two years of desertion, coupled with adultery, will also, under the new Act, authorize the petition of the

wife. All this is so much gained to the diately concerned, obligatory, in a moral

woman.

selves of the privilege of petitioning-goes far to establish this point; for if the offence against her were felt by the woman to be as rank, as it is felt to be by the man when committed against him, there would not be more willingness to condone. It is idle, indeed, to talk about equality in this matter, when equality there is, and can be, none, so long as the infidelity of the wife inflicts upon the husband so much larger an amount of suffering than, in ordinary cases, the infidelity of the husband inflicts upon the wife.

point of view, on the man, but not constitutStill it may be said that she is not on an ing, by their infraction, so gross and unparequality with the man. Granted; but, con- donable an offence against the woman, as, if trariwise, it may be said that the man is not violated by the woman, they would be on an equality with the woman. There are against the man. The very assertion, so some eager disputants, whom we cannot but often put forward by those who would renrespect for they are led away by a zeal der simple marital infidelity a sufficient which runs in the right direction, and their ground for divorce, on the petition of the very excesses are the growth of a plenitude wife-that wives would seldom avail themof warm, good feeling - disputants, who would give to the woman every privilege enjoyed by the man, and many others peculiar to herself. We doubt whether any sensible, reflecting woman will argue for her sex in this wise. But the zeal of some warm-hearted statesmen, in behalf of the weaker sex, passes the love of woman for her own case; and they battle stoutly to render the conjugal position of the wife far better than that of the husband. No one denies that the wife, as the weaker vessel, is entitled to the support and protection of the The equality sought for the woman must husband. If the husband ceases to perform be looked for, then, in another direction. It these duties, the law can compel him to do is not by endeavouring to assimilate, where, so the law can compel him to maintain his in reality, there is no similarity, but by wife according to his means. If he desert compensations peculiar to her condition, her in person, he cannot desert her in purse. that justice is to be done to the woman. If the wife be faithful, he is compelled to The new Act contemplates some such comsupport her; and even if she be unfaithful, pensations, and it has been much considered it is decreed by the Lord Chancellor's bill and discussed whether others might not be that the Court may compel her husband to conceded to her. The Chancellor's bill progrant her an allowance. Clause XXIII. of vides that two years' desertion, with adulthe bill, as introduced into the House of tery, by the husband, constitute grounds for Lords, enacts, that "the Court may, if it dissolution of marriage, on the petition of shall think fit, on any such decree made on the wife. A question has arisen, whether a the petition of a husband, make it a condi- certain period of simple desertion ought not tion that the petitioner shall, to the satisfac- to afford a plea for divorce. A man fortion of the Court, secure to the wife such sakes his wife, ceases to support her, abangross sum of money, or such annual sum of dons his country, places himself beyond the money, for any term not exceeding her own decrees of the Court, and leaves his wife, life, as, having regard to her fortune, if any, in the midst of trial and temptation, to to the ability of the husband, and the con- battle with the world. He may be living duct of the parties, it shall deem reasonable." thousands of miles across the ocean in a state Now, this is surely an advantage in favour of sin; he may have given to a mistress the of the woman. It is based upon the supponame of his deserted wife; or he may have sition of the natural superiority of the man, changed his own name, and in his own prowhich, while it fixes upon him larger re- per relations to society, ceased from off the sponsibilities, accedes to him larger privi- face of the earth. But how is the poor leges. If, as the weaker vessel, the woman woman to establish this to the satisfaction can claim the right of being supported and of the Court-how is she to prove the protected by her husband, he, in his turn, is wrongs done to her in another quarter of entitled to the claim from her, as a superior, the globe? She has, as far as we can see, fidelity and allegiance. She cannot assert no remedy. She is a wife without one priinferiority in one instance, and equality in vilege of wifehood. She is a lone womananother, just as may be convenient at the a feme sole-with all the sorrows, and none moment. There are things not expected of the rights of widowhood. Can the law from the woman, and there are things not do nothing for this poor forsaken creature? expected from the man. And there are The case, we believe, is not an uncommon other duties, with which we are more imme-one. In some instances, there may be,

* Clause XXX. of the amended Act.

from year to year, indications of the exist ence of the fugitive husband. He may

"It seems reasonable (he says) that some period should be limited by law for the duration of the matrimonial obligation, after a wife has been dewith evidence of adultery having been committed serted by her husband, whether she be provided by him or not. If this proposition were entertained, even so far as to elicit discussion, it might be proper to require that, during the limited period, all reasonable means should be taken to ascertain whether the husband were living or dead. An annual or semi-annual notice might be rein some public journal, and also to be delivered to quired to be published in the London Gazette, or

have been seen or heard of, or his name struggle with poverty in a country where found in a newspaper. But, in others, year honest woman's work is hard to find, and follows year, and there are no tidings of the where pitfalls surround her on every side, absent one. His fate is enveloped in abso- still preserves her independence and her relute obscurity. He may be alive, or he spectability, toiling much, murmuring little, may be dead. But, upon the mere possi- erring not at all; whilst the degraded husbility, or the assumption, however reason- band on whom she wasted herself in girlable, of his death, a woman may not marry hood, is following his own erratic courses in again. An attempt was made to remedy a strange land, perhaps in fellowship with a this, but it was not successful, in the House strange woman, careless of the fate of the of Lords. We perceive the difficulty of wife he has abandoned? Such a spectacle dealing satisfactorily with this phase of the may be seen-we wish that we could think question. If a woman, who has received no it a common one. The other side of the support and protection from her husband picture, we fear, is much more common; for a certain number of years (say five or and if it be, can any of the remote continseven), who has had no commerce with him, gencies of survival or repentance afford sufnor heard from, nor even of him, were to be ficient reason for perpetuating a state of permitted to marry again, on the mere as- things which must be a frequent source of sumption that he is dead, the assumption prostitution? might prove to be an erroneous one. The The author of the "Review of the Diabsentee might have been kept from home vorce Bill of 1856" throws out a suggestion, by unavoidable circumstances; he might in connection with this point of the inquiry, have been thrown into captivity in a strange which is worthy of consideration:country, or otherwise physically prevented from returning to his wife. Such a contingency is possible; but, sufficient time being allowed, it is so extremely improbable, that it is scarcely worthy of being taken into account. If, on the other hand, his death be not assumed-if there be reasonable supposition that his desertion is wilful-if he be within reach of protest and appeal, and yet rejects all solicitation and remonstrance, and, therefore, it is held that he has designedly forfeited all marital rights by a practical abnegation of marital duties, it is still said that he may repent and return to his wife, and that, therefore, a locus penitentic should be left for him. It is always possible that an offending husband may repent, especially when he finds old age creeping upon him. But is it worse that this repentance-often a repentance rather of convenience than of conscience-should sometimes be found to have come too late, than that the woman should be left to pine in solitude during the best years of her life, toil- Archbishop Cranmer and his coadjutors ing early and late to find for herself the bread would have administered more summary justice. that ought to be found for her, and yet for- A recusant deserter, resisting advice and exhortbidden to link herself with another who ation, careless of punishment, and deaf to reason, they would have declared to be contumacious, a would cheerfully bear her burdens? Is it contemner of all laws, divine and human, and possible to imagine a sadder case than that they would have cast him into prison. They of a woman so deserted, or a position more would have permitted the deserted person to enbeset with grievous temptation? Who ter into new nuptials. An absentee who could would not pity and pardon a woman who, in not be found, they would have publicly summonsuch a strait, forbidden to form a legal conand, on non-appearance in person or by nection with a truer and better man than proxy, they would have allowed two or three years to return, at the expiration of which time, a senher errant husband, were to form a connec- tence of divorce a vinculo matrimonii would have tion unsanctified by the law? And who been pronounced, granting liberty to the deserted does not honour, as one of the noblest spec- person to marry again." tacles on earth, the woman who, thus left, perhaps with her youth and beauty, to

some near relative of the absentee, if any such relative were known, in order that the Court might, as far as possible, be satisfied that the applicant came within the terms of the provision."

This is a good practical suggestion, because it is one of very easy application. On the subject generally of desertion, as a ground of divorce, the writer proceeds to say :

ed;

It is sometimes contended, that, if mere

desertion constituted a ground of dissolution is without a remedy. If any aggravation of marriage, there would often be collusion of such a case were needed to excite general between the man and the woman-in a sympathy, it would be found in the fact, word, that the absenteeism might be the re- that a husband thus deserting his wife, and sult of a family arrangement. But if the either living in a foreign land or concealing deserter were not allowed to marry again, himself in his own, may die, without proof proof being afforded that his desertion of his of his death being afforded to his wife; and wife was voluntary and premeditated, there thus she may be practically debarred from would be little likelihood of collusion. re-marriage after she has been released from Moreover, the Lord Chancellor's bill al- all legal restraint by the decease of her huslows two years' desertion, with adultery, to band. constitute a ground for the petition of the wife-a shorter cut to the desired end. It need hardly be added, that the man who deliberately deserts his wife, is not very likely to hesitate at the performance of the other part of the offence.

course with them, and even to have no assurance of the fact of their existence, is much greater than is commonly supposed.

It may be said that cases of deliberate desertion of this kind are not common. But we believe that they are very common. In the lower ranks of life, it is especially easy for a man to shake off his domestic encumbrances. The lower the rank, the more Impressed with the force of these consi- easy it is for a man to rid himself of the old, derations, we should rejoice if, to the ex- and to invest himself with new, social entended privileges granted to the woman un- vironments. A man who lives by the work der the Chancellor's bill, there had been add- of his hands readily fuses himself into a new ed the right to petition for dissolution of mass of humanity. He may join a railway marriage upon the simple plea of desertion gang in another country; he may go for a by the husband. Is a wife, deserted by her soldier; he may work his way to a distant husband, to have no remedy? As we read colony-and few questions will be asked. the new bill (as originally introduced into There is nothing about him to excite remark the House of Lords), the position of a wo- or to call for inquiry. He is nothing in man, deserted by her husband, is in no de- himself; he is merely an atom of some sogree benefited by it. It is a mere mockery cial mass; and his insignificance is his deto say, that the Act provides that "any wife fence. Our belief is, that the number of may present a petition to the Court praying married women in England, who are in no for a divorce à mensâ et thoro, on the ground wise supported by their husbands — who that she has been deserted by her husband, have long ceased to have any sort of interand that such desertion has continued without reasonable excuse for two years or upwards; and the Court, on being sa tisfied of the truth of the allegations of such petition, may, if it shall see fit, decree a divorce, à mensâ et thoro accordingly, and may make any order for alimony which it may deem just."-(Clause XV.) It is a mockery, we say, to assert that this provides for the case. If a man deserts his wife, and takes a lodging in the next street, the Court may make an order for alimony, and compel him to pay it. But if he be takes himself, as often happens, to a distant country, of what use to the deserted wife are the decrees of the Court? The divorce a mensâ et thoro has been accomplished in the most effectual manner; and you may as well draw a cheque upon Aldgate Pump as give an order for alimony, payable by one who has betaken himself to the back woods of America, or the diggings of California. Thus the worst cases are left untouched. The practical effect of the proposed law is, that a man may not desert his wife for two years, and keep within reach of the Court, without suffering for the act of desertion; but that, if he leaves the country, and deserts her for life, he enjoys perfect immunity from punishment, and she

We have said that it might be desirable, in cases of deliberate desertion, to prohibit the re-marriage of the deserter. We believe that it very often happens that, in such cases, the re-marriage of the deserter actually takes place, so that the woman has legitimate ground of divorce in the perpetration of bigamy by the husband. It may be fairly assumed, that the man who would deliberately desert his wife would not hesi tate to commit bigamy. But, in the cases supposed of concealment following desertion, the proof either of adultery or bigamy is difficult, and often impossible. We are doubtful whether the prohibition of re-marriage would go far to check desertion; but it would furnish sufficient answer to those who object to the recognition of that offence as sufficient ground for the dissolution of marriage, on the score that such a privilege would encourage collusion, and operate as a premium upon wrong-doing.

We hold that this case of continued desertion-a cruel, heartless, deliberate offence, persevered in, from year to year, mercilessly and remorselessly-is very different from a