The Sun.
London, England, 1857-06-10 00:00:00

should be allowed to their lordsbips in the discussion of
amendments applying to the same clause. At the same
time ha thought the house wonll gain much if it
gave rather more authority to the person in the chair.
He could not make a proposal of that kind when the
Lord Chancellor was presiding, because the noble lord
was a nominee of the Government; but he was at liberty
to say that if the chairman of committees, an officer se-
lected by their lordships themselves, were invested with
a kind of mild despotism gnat advantage would result
in the transaction of public bu,iness.
The Marquis of CLANRICARDE desired to know
what was the question before the house. (A laugh.)
Lord REDESDALE replied that the question was
the amendment proposed by the Lord Chancellor in line
12. In no circumstances would he have put any other
question than that ; but it was always open to any noble
lord to suggest that, for the sake of convenience, two
amendments bearing upon the same subject should be
discussed tokether.
Earl FITZ WILLIAM wished to make an observa-
tion on a word in the second line of the clause. He
thought that "separation" should be substituted for
" divorce" with reference to the proceeding here con-
templated as the result of desertion.
The LORD CHANCELLOR remarked that the clause
as it now stood, provided that any wife deserted by her
husband for two years should have a right to divorce h
mensa etthoro. Since the bill was printed he bad received
a number of letters from husbands stating that a corre-
sponding benefit ought to be given to them. He saw no
reason why thatrequest should not be complied with, and
he proposed to introduce words in line 12 giving a hus-
band the same remedy if deserted by his wife as the clause
now gave to a wife if deserted by her husband. Last ses-
sion great discussion took place as to whether in the case
of unjustifiable desertion there ought not to be divorce a
vioculo matrimonii, as was the law in Scotland. The
committee decided in tho negative, but their lordships
thought that some relief ought to be given, and it was at
his suggestion that, instead of being entitled to divorce
a mensa et thoro for desertion, a wife was to be simply
enabled to petition the Court, and obtain an older for
alimony. Since that time he had changed his mind upon
the point, and his objection to alimony was that the hus-
band might come back and deprive his wife of the relief
granted by the Court.
Lord CAMPBELL did not object to the husband hav-
ing the same right as the wife to obtain from a compe-
tent court on reasonable evidence a separation, equiva-
lent to what was known to the law as a divorce h mensa
et thotes, which was not, in fact, a divorce, because the
parties might come together again and live happily the
rest of their days. It was proposed by some that there
shsuld be no community of property whatever between
husband and wife, and he was surprised that the proposal
should have received the sanction of his noble and illus-
trious frien i—(Lord Brougham)—illustrious for his pro-
motion of law reform and his defence of the female sex.
With married persons there should be community of pro
perty as well as of persons ; but when a new status was
acquired by divorce Is mensa et thoro the c )inmuoity of
property ought to cease. The wife's property would then
be protected, and they would hear no more of the cruel
instances of husbands returning and sweeping away
everything belonging to their deserted wives.
The amendment was agreed to.
Earl FITZ WILLIAM said a woman who was sepa-
rated occupied a different position from a woman who
was divorced. The general public did not understand the
legal distinction between a divorce is vinculo and divorce
Is mensa et thoro. He would therefore move to substitute
the word "separation" for divorce's monsa et thoro.
Lend CAMPBELL suggested that, to make it more

intelligible, it should b 3 separation from bed and board.
The LORD CHANCELLOR would not pledge him-
self to the precise words, but thought they should insert
the words " judicial separation, which shall have all the
effect of" before " divorce is mensa et thoro."

Earl GREY approved of the amendment, because it
would make the bill easily understood.
Lord ST. LEONARD'S thought every one under-
stood what was meant by divorce k mensa et thoro. It
was divorce so far as it compolled each party to submit
to separation.
Earl FITZ WILLIAM was understood t) adopt the
suggestion of the Lord Chancellor as to the form of the
amendment.
After a short conversation, in which Lords Wensley-
leydale, Campbtlt, and Denman took part, the amend-
ment, proposing to substitute the words " judicial sepa-
ration" for "divorce k mensa et thoro," was put and
agreed to without a division.

The Duke of ARGYLL hoped it was understood that
a corresp )nding substitution of terms would be made in
the rest of the bill wherever it wad necessary.
Tae CHAIRMAN said, that would be understood as
a matter of course.

Oa the questicn that the clause, as amended, stand
part of the bill,

Lord ST. LEONARDS said, ho thought the substi-
tltion of "ju licial separation" for "divorce I. mensa et
thoro" was a very unwise one, altering as it did, and
without, as it seemed to him, due consideration, a mi..-
understood phrase whic'a had been known t, the law
from the ear:lest times. (aear.) Their lordships c .uld
not define what "judicial separation" wao. Be idea, he
might remind them that an alteration of terms dil no'F,

change the substance ot the thing meant, and it was
therefore desirable to adhere to the old phraseol-gy. Too
noble earl (Earl Fitzwilliam) seemed to speak ot "judi-
cial separation" as it it wre something distinct from
diverce mem), et thoro, but it was, in point of fact, the
same thing. He (Lord St. Leonard,4) believed the inten-
tion of the committee upstairs, on whose report the bill
was founded, was to adhere as nearly as possible t.) the
estall'shed law, but to give a new tribunal, and reAdier
means of access to that tribunal, to all classes of the
population.
The Committee divided, when there were—
Cowents
Non-afrnterits

7G
37
-39

1 Majority
The clause was then agreed to.
On c'ati,e 18,
The LORD CHANCELLOR stated, in reply to a
questi• n from the Earl of Dououghmore, that he did not
r ; rnpose to make any alteration in the existing law rela-
ing to alimony.
The clause was agreed to, as were also clauses 19, 20,
and 21.
The LORD CHANCELLOR said, he now rose to
propose a clause with reference to a question which occa-
sioned considerable discussion when this bill was lase
before their lordships—namely, as to the punishment of
persons who were guilty of adultery. It was originally
proposed by this Bill that an action of trim. con. should
not be brought until after a divorce had been obtained.
Tuat preposition was very fully discussed, but it was
not very satisfactory to their lordships, and it was re-
jected. Toe noble and learned lord opposite (Lord St.
Leonard's) proposed that aluLery should be con,tituted
a misdemeanour, and he (the Lord Chancel o) bad con-
sidered with great attention the propriety of carrying
that sugge,tion into effect. He had, however, arrived
at the conclusion that it was not desirable to make adul-
t -ry a misdemeanour, for on many accounts it would he
extremely difficult. if not impracticable, to carry out
such an enactment. It would, for instance, be necessary
to make exceptions where the adulterer was not aware
that the woraaa was married, fur in many cases trap,
might be laid, and a roan might be guilty of adultery
without being aware that he had committed any crime
known to the law. A very easy mode of evorti g
money would thus be afforded, and he thought the evil
likely to result from such a change of the low would
counterbalance its advantages. The two objects they
shauld endeavour to accomplish were, first, to render
the commission of adultery less frequent ; and, 201 y, to
take care that, when proceedings were adopted for obtain-
ing a divorce's vinculo matrimonii, there should be a
bona fide resisting party, and that no collusion should
take place. He now proposed a clause with the view of
carry. rig out those objects. What he suggested was that
any person seeking to obtain a divorce is vinculo matri-
monii should not be at liberty, as he now was, to proceed
against the wife alone, unless the court should declare
that there were special reasons for sanctioning such a
course, and also a fortiori that he should not be enabled
to proceed against the adulterer alone in the absence of
the wife, so as to fix adultery on her in her absence, but
that iu every case when the husband sought a divorce, k
vinculo inatrimenii, on the ground of adultery, he should
present a pdition praying that both parties should be
made rtipoedents or defendents in the case. B.,th the
parties, the alleged adulterer and the wife, would thus
be before the court, and the action would be bona fide
resisted. Ai to the punishment, be should propose that
the Court should have power to impose a fine upon the
paramour, and that fine with t'.6 view of indicating tbat
it was not intended to be merely a nominal one, be
should propose to limit to an amount not exceeding
10,0001 He !Jelieved that the amount of the fine and
the publicity of the proceedings would be effectual secu-
rities against cAlusion.

Lord BROUGHAM entirely approved the substitute
for the action of trim. con. proposed by his noble and
learned friend. was admitted on all hands that that
action must be abolished. That was the opinion of such
eminent men as Lord Eldon, Lord Grenville, Mr. Pitt,
Mr. Fox, 'and Mr. Erskine, and their only difficulty was
to provide a substitute. If any one wished to know with
how much hardship and injustice a woman might be
treated by the action of erica. con, as it now stood, he
would give them en example. He held in his hand five
letters from the falsely alleged paramour of an injured
lady, and he would answer for it that the reading of those
letters by one, two, three, or more of their lordships
would at once convince them that the charge against that
lady of having had an amour with his late lamented
friend Lord Melbourne was absolutely and necessarily
false. They had produced on his mind the most abso
lute conviction that the thin was utterly and entirely
impossible. Yet this action was tried behind the back
of the lady, and but for the exertions of his noble and
learned friend, then not her counsel, but that of the de-
fendant, her character might have been ruined for life,
she being all the time as guiltless as any other human
being. (Hear, hear, from Lord Campbell ) Ho pre-
ferred the infliction of a fine to making adultery a mis-
demeanour, on account of the danger of conspiracy
which beset the latter course, and against which he was
afraid that no sufficient security could be provided.
Earl GREY thought that the c'ause as amended was
a great improvement on the original clause. He should
be glad to see imprisonment enacted as a punishment
as well as a fine, and if no other noble lord undertook
the task he should, later on in the discussion, propose
aclauseto that effect. It was with great reluctance
that
exer
he consented to legalise the divorce a vinculo. The
under
present measure ought, however, to be looked on as an
laxped rnimeornt a.140y, nlyand if there were any signs of re-
ath new system we ought at once
to return to whathad
hitherto been the theory, not the
practice of the Enizi6h
Lord CAMPBELL
cowria
li 'lls:eapproved the clause as
amended, but suggested that
t'
the floe, but that it should be leftretoshtiohuelCd Court
tion it according to the circumstances of obtuheren limitsappaontrdo-
the means of the offender.

The Bishop of OXFORD concurred in the necessity of