The Sun.
London, England, 1857-05-29 00:00:00

After a few words from the Bishops of. Bangor, Lon-
don, and Oxford,
Their lordships then divided—
For the Bishop of Oxford's clause
Against 7B-52
THE ACTION FOR CRINI. CON.
On clause 44,
The LORD CHANCELLOR said he proposed this
clause in its present form on account of the general feel-
ing that the law ought to be altered. He thought the
law of Scotland was tke best on this subject. The action
for crim. con had bees objected to on various grounds.
It was said that a divorce ought not to depend on whe-
ther a husband had obtained a verdict in such an action,
thus imposing on him the necessity of bringing such an
action. Another objection was, though he did not at-
tach much weight to it, that investigations of this kind
led to a great deal of scandalous detail ; but this
arose rather from the nature of the subject itself. Such
an objection would equally apply to actions for seduc-
tion and for criminal violence. A third objection, which
was much pre-sed by Lord Brougham, was, that the cha-
racter c.f the wife might be irretrievably damaged in an
action of this kind, without her having a chance of being
heard. The clause as now drawn obviated that objec-
tion entirely. No such action could be brought till the
husband had obtained a sentence of divorce. Stil, it
might be said, why retain the action at all t It would
be an anomaly in the law, if for a gross grievance no re-
medy were provided. Not only on the sole ground of
solarium, as it was called, might damages be awarded,
but also as a means of paying the costs of a divorce.
Again, the apprehension of large damages might very
probably restrain parties from the commission of this
crime. If the action for crim. con, was taken away,
what substitute was provided? One proposal was to fine
the adulterer in fact 500/., and make the crime a misde-
meanour. _ _ _

Lord ST. LEONARD restated the substance of his
proposal. The fine would go to the Crown, with power
to apply part of it to the casts of the divorce.
The LORD CHANCELLOR said that might alter
the name of the trial, but the very same trial must take
place. If the offence were made a misdemeaaonr, the
husband ought not to have the option to prosecute or
condone as he thought proper ; the prosecution ought
to be at the instance of the public. It was said that this
kind of action was at variance with the public feeling ;
but how could this be so when juries almost invariably
gave very heavy damages. Under these circumstances,
he thought it better to retain the right of action for trim.
con., but not to make it a condition precedent to obtain-
ing a divorce.
Lord LYNDHURST'said he would not again enter
into the question generally, having so recently done so at
great length. He would confine himself to the alteration
now proposed. As the law now stood, a divorce could
not be obtained till after judgment obtained against the
adulterer. Now, it was proposed to reverse the order of
proceeding, but the noble and learned lord had given no
answer to what he stated the other night. The law
ought to be applicable to all classes of the community ;
but as only one portion of the community could ever pro-
ceed for divorce—Roman Catholics, for instance, being
excluded—those persons would also be debarred from
bringing an action. Again, it would operate injuriously
towards poor men, wh, •e wives might have been seduced,
and who would have to go through a double proceeding
in order to obtain damages from the adulterer. He
doubted whether the alteration proposed would diminish
these actions, for when persons obtained judgment of
divorce they would only have to go into a court of law
and ask for a verdict. He therefore proposed to strike
out from the clause certain words, the effect of which
would be to take away the action for crim. con. (Hear.)
The Bishop of OXFORD did not think the house
would consent to do away with the right of action for
criminal conversation, unless something of a penal cha-
racter were substituted. To, do this would, especially
among the lower classes, increase the temptation to
crime.
Lord LYNDHURST said he had not entered into
that point because Lord St. Leonardo bad an amendment
on the paper which went to that question.
The Bishop of OXFORD was disposed to support the
principle of Lord St. Leonards' amendment, but thought
that a higher penalty ought to be inflicted ou the adul•
terer, with power to make compensation to the husband.
He should be glad to see something done to make adul-
tery discreditable, instead of the adulterer being invested
with a sort of mythical chivalry, as at present. (Hear.)
He would subject him to imprisonment, or some dis-
cred►table punishment.
Lord WENSLEYDALE opposed the amendment.
The house ought not to take away the husband's right
to a civil remedy, although they might render adultery
a penal offence. It had been said that the Lord Chief
Justice of the Queen's Bench was not only opposed to
this action, but had actually stigmatised it in open court
as a disgrace to the law of this country. He could not
believe that this was correct. It was also an error to
say that. this 'was the only country in which such a
right of action prevailed. The action for crim. con.
was not exactly a condition precedent for obtaining a
divorce, but in the Duke of Norfolk's case, about the be-
ginning of the century, the action had been required to
be brought to satisfy the house that there was no collu-
sion ; and the rule had been generally acted on since.
The law of France and other countries recognised the
right of an injured husband to maintain an action against
the adulterer ; and by the Roman law fines were imposed
on parties so offending. He saw no ground far taking
away the right of the husband to recover compensation
for being deprived of the comfort, society, and assistance
of his wife ; and what compensation could the law give
other than a pecuniary compensation ! Two or three ar-
guments had been adduced against the action. It was
said that a man ought not to be allowed to make mer-
chandise of his wife's dishonour; but analogous argu-
ments might be employed against the action for slander
or libel. It was said that these actions led to very dis-
agreeable details, but this objection also arose in other
kinds of actions. The hardship upon the woman because
■he was not heard in such an action might easily be kept,
because she could give assistance in defending the action.
Lord LYNDHURST said his noble and learned friend
had entirely misapprehended the view he took of the
question now before the committee. He (Lord Lynd-
hurst) wished to get rid of the action for criminal conver-
sation, but only in order to substitute some equivalent
for it. It would be a great iniefortune to discuss the
subject piecemeal.
The Earl of DERBY reminded the committee that

they agreed to his learned friend's amendment they
would by no means be committed to the abolition of the
action for criminal conversation. When they had dis-
cussed his noble friend's substitute for that action, it
would still be open to their lordships to express their
opinion on what the Lord Chief Justice would call the
ensemble of the clause. (Hear.)
Lord CAMPBELL said the speech of his noble friend
(Lord Wensleydale) bad proceeded on the supposition
that what was proposed was the simple abolition of the
action for criminal conversation ; whereas that was a
proposition which not one of their lordships thought of
recommending. (Hear, hear.) He knew that his noble
friend had a great abhorence for any alteration in the
law ; but in those cases in which the law had been
changed, and in which the changes had been fonnd
beneficial, his noble friend had candidly confessed his
former opinion concereing them had been erroneous.
The noble lord seemed to be as much shocked at the
prospect of abolishing the action for criminal conversa-
tion as if it were proposed totake away the writ of habeas
corpus ; be seemed, in fact, to think that the mainten-
ance of our liberties was bound up with the right of a
husband to put money into his pocket by his own dis-
honour. (Laughter) The noble lord had referred to a
statement, respecting what he (Lord Canspbel') had said
in the Court of queen's Bench. That statement was
perfectly true. In open court, Upon his own tribunal,
in his noble friend's presence, he should not be deterred
from expressing sentiments he had long maintained.
The action for criminal conversation was contrary to the
very first principles of jurisprudence, which only gave a
right of civil action where pecuniary damages could afford
a compensation for the wrong done. Thus, it a horse
were taken away from a man, and he receive a verdict
for 1001. or 2001,, he might buy himself as good a horse
with the money as be had lost ; but how could a person
whose wife had been seduced be compensated by any
amount of pecuniary damages! Adultery was a crime
of a very deep die, and he considered that it ought to
be a subject for punishment, and not for pecuniary com-
pensation. (Hear, hear.) The noble lord said that the
action for criminal conversation was not unknown on the
continent ; but be (Lord Campbell) had conversed with
French, Italian, an'l German jurists, and the only view
which prevailed amongst thou was, that we ought to be
ashamed that such an action could be brought in our
courts (Hear.) On one occasion he was taunted with
a statement that a man in England could take his wife
into a public market with a rope round her neck and sell
her. He (Lord Campbell) pledged his honour that so far
from that being the ca.e, a man who did such a thing
could be punished fsr a misdemeanour. " A.h, but what
have you to say about the action for criminal conversa-
tion !" was the immediate rejoinder. He (Lord Camp-
bell) had nothing to say—he could only blush. (Laughter.)
Lord WENSLEYDALE said he had taken part in
all the great legal changes of modern times. In the im-