foundation, of the action is held to consist in the husband's loss of the comfort and society of his wife.

It is also provided by an early statute, 13 Edw. I. st. i. c. 34. that if a wife wilfully leave her husband, and go away, and continue with her advouterer, she shall be barred for ever of action to demand her dower that she ought to have of her husband's lands, if she be convict thereupon, except that her husband willingly and without coercion of the church reconcile her, and suffer her to dwell with him, in which case she shall be restored to her action'.

The practice of the English law of adultery is said to be an occasion of censure and offence to foreigners: and it is worthy of the most serious and dispassionate consideration, whether a crime second only in the divine law to that of murder; whether a crime which was pronounced capital under the law of Moses, which the Lord interposed his extraordinary power to prevent and to punish, and on which in the Gospel an eternal judgment is denounced; whether a crime which comprehends the worst fraud, the basest prostitution of character, and the most irreparable injury; whether a crime of which the just character is recognized in the penal inflictions of almost all nations, and in the right assumed or allowed in many of taking summary vengeance of the offender-can be rightly excluded from the catalogue of crimes and misdemeanours, and held to be a merely civil injury, for which a pecuniary fine

43 Bl. Com. c. 8. with Christian's note 12. supra.

1 Burn ubi

offers an adequate compensation? Is it agreeable with the recognition of a divine law to exempt from the charge of crime and the infliction of punishment a transgressor whom that law so plainly and so awfully condemns? Or is it consistent with the analogy of the English law to attach a criminal and felonious intention to a man who enters a shop or a dwellinghouse, and steals an article of inconsiderable value, and to impute no crime to the act of the adulterer, who robs a husband of his wife's affections, and a family of a mother's care? Or is there any thing in the class of civil injuries which bears any proportion to the wrong which the adulterer inflicts, a wrong which" injures the peace and happiness of society, and with which nuisances and assaults are not worthy to be compared?" Even in the assessment of the damages it is not the guilt of the offender, or the wrong of the injured husband, but the variable and casual circumstances of the plaintiff and defendant, which forms the ground of the assessment, and "the price of adultery," as it has been called, is unsettled and indefinite, and modified by the wealth or poverty of the parties concerned. If the parties are poor, redress is almost impracticable, the damages are inconsiderable, and disproportionate even to the expence of recovering them: but is the offence or the injury abated? If the parties are rich and of elevated rank, the damages are enhanced: but how is the offence or the injury aggravated? If the parties are in different circumstances, the adulterer rich, and the husband poor, or the adulterer poor,

Mr. Erskine. Woodfall's Parl. Rep. vol. lii. p. 232.

and the husband rich, upon what principle is the just measure of the fine to be ascertained? Is the rich man's wrong excused, because the adulterer is poor, or is the poor man's wrong aggravated, because the adulterer is rich? In such cases small damages would give impunity to the rich, and aggravated damages might tempt the poor to seek and triumph in their shame and dishonour. What a violation of all the principles of equal law is exhibited in these suits and prosecutions for criminal conversation. The injury is the same in the act, and in the effects which it produces: the penalty should be really, not relatively, equal: the criminal character of the act should be avowed, and the criminal should be punished without discrimination or distinction.

Another anomaly in the English law of adultery is, that the whole penalty of the offence, such as it is, is claimed to the man, and levied upon the man. The divine law pronounces the same judgment on the adulterer and the adulteress. In England the man pays the fine; the man seeks the redress: the injured wife has no remedy but in a suit of separation a mensa et thoro, for the more complete divorce a vinculo she is not permitted to solicit: the adulterous wife undergoes no penalty beyond the forfeit of the right of dower, a sentence of divorce, in which, whether it be partial or complete, she rather rejoices than is aggrieved, and the loss of reputation. When her affections have been transferred from her husband, it is no additional grief that she is separated from him, and in respect of the scorn of the world, she defies it in the moment of her crime, and before she has time to feel or to fear its force it is satisfied,

abated, and withdrawn. The woman who has once ceased to respect herself is reckless of public opinion. The adulterer is received into society as a man who has done no wrong; the success of an intrigue on his part is applauded, by a wretched equivocation, as an achievement of gallantry: and it is not always that the adulteress is banished to the retirement which alone is suited to her shame, and in which alone she can retrieve her prostituted character. There is danger that on her repentance her sin may be forgotten, and that the ostentatious display of her recovery may counteract the just example of her disgrace.

Another objection to the present law of adultery is, that, while it exempts the guilty, it often, in its direct consequences, injures the innocent. A pecuniary fine is paid by the adulterer; but if he be a married man his wife and children are made partakers of his punishment. The price of adultery cannot be paid without diminishing their means of present subsistence and future establishment in the world. This is the effect of other offences which are compensated by fine; but, in those cases, the injury is not accumulated upon insult and neglect: however the property may be eventually injured, a design may have been entertained, unworthily, and with a dishonest intention, of promoting the interests of the wife and her family.

The last objection to the present law of adultery is, that it is a partial law. The unavoidable expences of obtaining redress for the civil injury are such as can be borne only by the opulent, and necessarily leave the destitute without any means of compensa

tion. The natural effect of a law so partial in its operation is to expose the vices of higher life, and to conceal those of inferior station; to give to adultery the ostensible character of being the exclusive vice of the great, to charge them with "a monopoly of debauchery," and to represent them, in respect of adultery and its consequences, as "a privileged caste." While the man of humble station is left without legal redress under the worst of injuries, he is tempted to take the vengeance to himself, to be the judge of his own wrongs, and the executioner of his own sentence, in such rigorous and cruel treatment of his wife, and in such violence towards the adulterer, as have frequently ended in the effusion of blood, made murder the companion of adultery, and increased the number of public executions. In a case in which the exasperated jealousy of an ignorant man is too ready to mistake suspicion for the proof of guilt, it is especially necessary that the hall of the magistrate should be open to receive his complaint, and that the phrenzy of passion should be restrained by the assurance of a just and equal administration of the law.

Various remedies have from time to time been proposed for correcting these deficiencies and anomalies of the law of adultery: and it would be unjust to the present subject not to notice the highly interesting and instructive debates in Parliament*, on the Bill for the prevention of adultery, debates in

Woodfall's Parl. Reports, vol. xxii. p. 303, &c. Lords, April 4, 1800. vol. xxiii. p. 35. Lords, May 16. Ibid. p. 76. Lords, May 19. Ibid. p. 90. Lords, May 23. Ibid. p. 138. Commons, May 30. Ibid. p. 171. Commons, June 10.