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How is it to be secured at all, if this guilt is generally to escape with impunity? But, my Lords, I address you not as fathers individually: I say, that the innocence of daughters is a matter in which fathers ought to make a common cause; and the feelings of the individual must be sacrificed, when the occasion requires it, to the common interest.-My lords, once more I conjure you to remember, that justice, not compassion for the guilty, is the great principle of legislation. Yet, my lords, your compassion may find worthy objects: turn, my lords, your merciful regards to the illustrious suppliants prostrate at this moment at your bar, Conjugal fidelity, domestic happiness, public manners, the virtue of the sex! These, my lords, are the suppliants now kneeling before you, and imploring the protection of your wisdom and your justice.

Lord Mulgrave repeated his arguments against the bill, and contended, that it would deprive women of all hopes of being restored to some degree of society, by a life of exemplary conduct and repentance; that it would drive them to prostitution or desperation, while it would encourage the seducer to proceed in his guilty career, as he would no longer be bound in honour to marry the woman whom he had separated from all the enjoyments of life; and therefore, that it would be equally opposed to justice and humanity.

Lord Grenville said, that after the able manner in which the bill had been defended, he should not have troubled their lordships with any observations, if he were not afraid that his silence might be construed into an acquiescence in the objections which had been urged against it. He differed widely from his noble friend who spoke last, in the application of the word "honour;" for he could not allow that there was any such thing as an honourable seducer. Much stress had been laid upon the conduct of ladies in Roman Catholic and other countries, who indulged in voluptuousness and dissipation, because they knew that such things were overlooked, and that they were not likely to be divorced or degraded from the rank which they held in society. But, in his estimation, this argument made strongly in favour of the measure; for as the same profligacy did not prevail here, it shewed that women were not unmindful of the consequences that were to follow

their transgression. It was also urged, that ladies who were once guilty of infidelity, had no other means of returning to the path of virtue, than by marrying the very persons who had dishonourably seduced them. He was sure he could put a variety of cases, where his noble friend would not, as a moralist or a Christian, hold out such a doctrine to an offending woman. If there was no other alternative, he would ask, what was to become of the woman whose seducer should die before the divorce was obtained? What would be the situation of the unhappy woman, whom her seducer would not consent to marry? Or what return was there for the woman who, which not unfrequently was the case, had been seduced by a married man? The only way in which such a seducer could make compensation, as it was called, to the adulteress, was to contrive a divorce from his lawful wife— a kind of compensation that would lead to multiplied transgressions. The only restriction in this bill was, to prevent any marriage between the offending woman and her seducer.

The House divided: Contents, 48; Proxies, 29-77. Not-contents, 41; Proxies, 28-69. The bill was then read a third time, and passed.

Protest against the Adultery Prevention Bill.] The following Protest was entered on the Journals:

"Dissentient :

1. "Because this bill appears to me to be inefficacious for the purpose which it professes, and more likely to increase than diminish the evil; and that its proper title should have been A Bill to conceal Adultery and prevent Divorces.'

2. "Because in those nations where divorces are prohibited, the morals of the people are much worse than in this, and where they are allowed, but the woman is prevented from marrying the adulterer, as in Scotland, it has not been made appear that this crime is less prevalent than in this country; I therefore do object to these clauses, as I consider them founded on mistaken and immoral principles; on mistaken, because there is scarcely a single instance where it can be made appear that the adultery has commenced from this object; on immoral and unchristian principles, because they place the woman in a most miserable situation, and shut the door to all incitements to repentance, or hope, that by her future

and armed them with new and formidable powers.

Mr. Pitt called upon gentlemen to say, whether they could throw out such a bill on a bare first view, unless they were decidedly of opinion that the parties should be permitted to marry again, or thought that the crime of adultery should not be punished as a misdemeanor. On the whole, he thought that the severity inflicted on the few would operate beneficially for the whole.

virtuous conduct she might atone to society for her former faults, and they cruelly condemn all the children which she may have to bastardy: whereas, as the law now stands it is proved by experience in every instance where the second marriage has taken place, the parties have led domestic and happy lives, and been useful members of society; this it was insisted in debate was a bad example, but it appears to me, it would have been a far worse one if, instead of the divorce taking place, the adulteress had continued to live on with her gallant, or if, after being divorced, she had lived on with the man unmarried: I therefore must think, that the cause of religion, public order, and decorum, cannot be furthered by this restriction, and am unwilling to agree to such material alterations in the law of England, being hurried through this House on merely a speculation that some good may be produced, where there is so little prospect of success, from any example which has been brought from any country, where this has been tried: these reasons appear to me sufficient for the vote I have given to reject this bill, and I trust will exculpate me from the unwarrantable charge which was made in this night's debate, against those who opposed this bill that they were encouragers of adultery,

(Signed) "PONSONBY."

Debate in the Commons on the Adultery Prevention Bill.] May 26. The bill, from the Lords, intituled "An Act for the Punishment, and more effectual Prevention, of the Crime of Adultery," was read the first time. On the motion, that it be read a second time,

Mr. Bouverie objected to the bill on parliamentary grounds, as it went to limit the powers of the legislature, by preventing the bringing in a bill of divorce, unless under the terms prescribed by this bill. The bill, too, presumed upon some abuse which the legislature had made of its powers in passing bills of divorce. Was that the case? If we were not justified in passing such bills, let us delegate that power to some more proper tribunal. But why we should put it out of our power to pass laws on bills of divorce he did not know. He would therefore oppose the bill in every stage.

Sir Gilbert Heathcote said, that he would give the bill all the opposition in his power, because it transferred the right of punishing from the jury to the judges,

Mr. Jolliffe admitted that some regulations should be made; but these were so oppressive, and so unjust that the mind revolted at them. The number of divorces proved only that divorce bills were now more frequently passed than formerly; not that adultery was more frequently committed. He objected to making adultery a misdemeanor, but not to punishing of it severely.

The Attorney General said, that all the protection imaginable should be given to the marriage state; but he was hostile to the bill, and should give it his decided negative.

Mr. Windham gave his assent to that part of the bill, which made adultery a misdemeanor, but the part which went to prevent the parties from intermarrying did not appear to him likely to operate the desired effect.

The question being put, That the said bill be read a second time, the House divided:

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May 30. The Master of the Rolls moved the second reading of the bill.

Sir George Douglas, in a maiden speech, said, that he was inclined to think that the bill would induce a greater evil than the proposed remedy would do good: it tended to make this crime still more injurious to the interests of society than as the law now stood. There were two descriptions of persons implicated in its operation; those who were hurried away by their passions, and those who acted upon a deliberate plan of seduction. For the honour of human nature, he was led to believe that the former constituted a more numerous class than the latter.

With

Debate in the Commons on the

[304

sary? Was there ever a period when British valour, loyalty, charity, and public spirit were more conspicuous? And was it to be supposed that the mothers and daughters of England had had no share in thus forming the public mind?

been adduced as a ground for the present Sir William Scott observed, that it had bill, that more divorces had taken place of late years than at any former period. But, from the comparative view which he was enabled to take, he felt some satisfaction in declaring, that the general state of morals was not worse now than it had been in former periods. There were many instances to be found of a strict adherence in the people of this country to old English manners and English virtues; there were many bright examples of conjugal virtue and fidelity amongst persons of the highest ranks in society; nor did he think that it would be any discredit to this country to compare its state of morals with that of any other country, and particularly as it respected the crime of adultery. Let any gentleman look into the old English comedies, from Dryden to Congreve, as a specimen of English morals, and compare them with the more modern productions of the comic muse, and it must lead him to this conclusion, that the state of morals was worse formerly than now. He might also refer to the testimony of history, from the writings of the grave Hammond to those of the lord Clarendon. He must therefore have very strong evidence under his eye, before he could agree in thinking that the state of morals was deteriorated. that had been stated was the increased The only evidence number of divorces of late years. But he was led to suspect that this arose from causes which had little reference to the profligate state of manners; nor did he think it

respect to the former, would this bill lessen the number of delinquents? The woman was sometimes betrayed by her seducer under a promise of marriage; she lamented her misconduct, and was anxious to make every atonement to society by the purity of her future conduct; in like manner, the man who, yielding to the momentary impulse of his passions, contributed to the ruin of female chastity, might wish to atone, by marrying the person he had unguardedly betrayed; but when he should see by this bill, that he involved the woman in ruin and infamy, the effect might be to divert him from the conduct which he ought to pursue. There were persons unfortunate, who yet had not lost all sense of virtue: by this bill, such persons would be entirely abandoned; the door would be shut against their return to the paths of virtue; a degree of despair would take place, and the unfortunate female might thus be involved in the fate of common and abandoned prostitutes. He could suppose the case of the daughter of a respectable family, entering the world with all the graces to adorn her station in society, young, beautiful, and unexperienced in the ways of vice, yet seduced by the arts of a designing man, under promise of marriage. Was it fit that this young unexperienced female should be the principal sufferer, whilst the seducer, prohibited by this bill from making her the only reparation in his power, was driven from the marriage bed to the polluted couch of some painted harlot ?And was it right that this man should be suffered to claim the benefit of the law as a passport for his dissolute conduct? The legislature should draw a line of distinction between the female he had described, and the abandoned prostitute, or the profligate seducer. Let gentlemen look at the operation of the bill with regard to the second class of persons; to men who sought to gratify their passions by the ruin of female virtue. At present, the idea of marrying the woman whom he had seduced, which the law of honour suggested to him, operated as a restraint upon his conduct; but this bill would remove that restraint. So far from interdicting the offending parties from intermarrying, the law should compel them to marry. Had it not been found, that women who had been afterwards married to their seducers, had generally led lives of retired contrition and virtue? What evidence had been produced to show that this bill was neces- 1345.

fligacy should have broken out all at probable thing that such pro. once. The state of opinion, and the laws, as respecting marriage, were to be taken into consideration. Before the Reformation, by the law of the church of Rome, marriage was a sacrament, and a business with which human legislatures had nothing to do. In consequence of this, divorces were not allowed. sir Thomas Powys said, that for 600 years When there had been but four or five divorces,*

* See Howell's State Trials, vol. 13, p.

[306 he said truth; but the answer was plain, that had been sued for was more to be atwhich was, that no human authority had tributed to the prevalence of the new nobeen allowed to lay its finger upon the tions, than to the increased profligacy of subject till the Reformation. It was im- manners. On looking into the records of possible to deny that some of the re- the ecclesiastical courts for the last thirty formers ran into wild ideas on the subject years, he had found, that the number of of divorce, which were inconsistent with these sentences had not much increased. the solemnity of the marriage contract. From 1770 to 1780, there were about 44 The opinion of archbishop Cranmer was sentences à mensa et thoro; from 1780 to more consistent; he held, that adultery 1790, there were 23; and from that peeaused a dissolution of marriage; and riod to the present time the number was that it was lawful and right for human 52. Many of these cases might have tribunals and legislatures to pronounce found their way into parliament from upon their dissolution. It became the causes not connected with an increased opinion in the country amongst eminent depravity of manners. This was the case divines, and the law of the canons, that during the last year, when, in consemarriage, although not a sacrament, was quence of an order in another House, a high, mysterious, and sacred ordinance, which bore hard on the feelings of one with which human legislature had nothing of the parties, these causes which had to do, and that even adultery itself did not hung back were brought forward; but in dissolve the marriage. In the canons of the present year they were fewer. He 160%, an additional sanction was imposed, did not think himself justified in enterwhich made it necessary for the eccle- taining the gloomy apprehensions as to siastical judge to require a bond from the existing state of morals in the country the innocent party as well as the guilty, which some persons did. With respect not to contract marriage during the life- to marriage, two opinions had prevailed; time of each other. He believed the the one that it was a mere civil, and the first attempt to invoke the interference of other that it was a religious ceremony. the legislature did not occur till the year In his opinion it was both. As the law -1668, in the case of lord Roos; yet even of nature, it was antecedent to the forthen, though at the distance of a hundred mation of society, and an important but a years from the Reformation, so strong was mere personal contract between the two the opinion that human legislatures had partics. When society was formed, it benothing to do in such matters, that it came not only a personal but a civil conwas with the greatest difficulty the Divorce tract, connected with civil privileges and bill was carried through the House of obligations; when religious principles Lords, and all the bishops but three were received in a state, the marriage bevoted against it.* In 1715, bishop Fleet- came also a religious contract, accomwood combated the same notions, which panied with plighted vows, and calling still existed in his time. After the ac- upon heaven to witness them. The idea cession of the present family to the that the marriage contract was indissothrone, more liberal notions began to pre-luble, was taken from the construction vail; the legislature was more generally put upon certain texts of scripture. It applied to on such subjects, and the old was now the practice in every Protestant notions were gradually obliterated. Such country but our own, for courts of justice was the reason why so few applications to give a sentence of separation à mensa had been made for divorces till after the et thoro. He was, however, disposed to middle of the present century. Of late think, that the law in this country was years, applications to the legislature for placed on a footing the most consistent divorces were no longer resisted on old with the general safety; he meant so far, English ground; the expense formed one that the legislature should keep the matter of the chief difficulties-but this obstacle of divorce in its own hands, rather than was diminished in proportion as the leave it to subordinate courts. By the wealth of the country increased. How existing practice it was requisite, to enever, he could state, that there were as title a husband to obtain a divorce, not many ecclesiastical sentences of separa-only to give proofs of the misconduct of tion à mensa et thoro before, as since the Reformation. The number of divorces

• See vol. 4, p. 447. [VOL. XXXV.]

the wife, but at the same time of his own good conduct. It was evident, that there might be great shades of difference as to the conduct of the husband, so as to [X]

render the decision of the legislature a from his wife. The tendency of this matter of discretion which did not safely was, to weaken the crime of adultery, as belong, and could not strictly be en- the crime of the female was most likely trusted to a court of justice, where deci- to take place in such a state of separasions were to be guided by strict rules tion. He had also his doubts with regard of evidence and matters of fact. With to that part of the bill which professed regard to the present bill, in its present to erect a fence against collusion; also stage be should suspend giving any de- on that clause which enacted that the cided opinion if he voted for its going party should be convicted and punished to a committee, it was not on the ground by a criminal court; for he could conof the increased number of divorces. If ceive many cases in which a man might its tendency was to strengthen the fences obtain relief in a civil court, without the of religion and morality, then undoubtedly cause being sustained in a criminal court; nothing should be omitted calculated to whereas, if he were to carry on an unanswer that effect. He hoped to have successful prosecution in a criminal court, found in this bill something equally he would fail in a civil court, and in obpointed at the depravity of both sexes. taining parliamentary relief: and the exIf the House met this measure upon pense of proceeding would also be inmoral and religious principles, they ought creased by this bill, by the necessity of not to do the business by halves; and as going through such a variety of courts, men, there was one part of it which it as well as both Houses of Parliament. might be most proper for them to begin. He thought it was but just, on the part It had been his lot, in the official situation of the legislature, if it passed this bill, which he held, to see the most injurious to secure the prosecutor against this inof adultery on the part of husbands, creased expense. system He was inclined to the feelings of their wives wounded by think that the bill would tend to hold the most glaring infidelity, and their con- out a premium to the adulterer, in prostitutions poisoned by the most gross in portion to the terror which it held out to decencies, whilst all the remedy which the adultress. It was already the existing the wives had was a separation à mensa et law of the country, that neither party should thoro. He should he happy to see some- marry again; all that the legislature did, thing inserted in this bill for the protec- was, to interpose special provisions in partion and happiness of daughters. It ticular cases. With regard to the clause ought to go to prevent adultery in general, which prohibited the guilty person from rather than the adultery of one sex. With marrying the adulteress during the liferespect to the clause which went to in- time of her husband, its effect would be, flict penal chastisement on the adulterer, to give the woman her option of the this was not new in the law of England. whole world, with the exception of the Adultery was in itself a crine pernicious single person with whom she had had a criand poisonous with respect to all the sweet minal commerce. He confessed that his charities of human life. It was already mind was not cleared of doubts as to the punishable by the ecclesiastical law; policy of the present bill: at the same time, which, wherever it operated, was as much he should not object to its going into a the law of the land as any other branch committee. of the law. It must at the same time be admitted, that, from the state of modern opinions and manners, the punishment (that of public exposure and disgrace) was become rather a matter of derision, and was growing obsolete. But there were also sanctions of a more forcible nature: adultery was punishable by indictment in the courts of common law. Sir William proceeded to state his doubts on the propriety of one or two clauses in this bill. He remarked, that it was only to operate in cases where the husband was living with his wife; but if so, no action would lie in all those cases where the husband lived in a state of separation

The bill was then read a second time. June 10. The Master of the Rolls moved the order of the day for going into a committee on the bill.

Sir Gilbert Heathcote did not think that the people of this country were so vicious, nor the state of public morals so depraved, as to require a bill so severe and exceptionable as that which it was now proposed to send to a committee. Why seek to arm judges with new and extraordinary powers? By the law, as it stood, they had it in their power to punish with imprisonment any one who could not pay the fine in damages inflicted in the courts of law. Before,

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