which high principles were maintained upon the soundest reasoning, and recommended by the full force of professional character, experience, and reputation. It is not necessary at present to advert to that part of the Bill in which it was proposed to prohibit the intermarriage of the offending parties, and which may be reserved for future discussion. The inefficacy of the present law", the inadequacy of the existing penalties, the necessity of revision in conformity with general principles of legislation and the practice of other countries, and the expedience of recognizing the criminal character of adultery in order to secure its appropriate punishment, and to destroy the code of a peculiar caste, were either generally admitted or so feebly opposed as not to require defence. The law was in that state in which the lawyers regretted abuses for which there was no remedy, and collusion for which there was no punishment': that damages could afford no compensation to a man for the injury which he sustained by the adultery of his wife; that there was an insidious pretence that damages could not be demanded or received without a sacrifice of honour; that there was a common understanding and collusion between the parties out of court, that the damages should not be exacted; and that even the award and payment of vindictive damages might offer a temptation Lord Eldon. (Lords Thurlow and Kenyon.) Sir W. Grant. Mr. Wilberforce. * Sir W. Grant. Bishops Porteus and Horsley. Lord Eldon. Attorney General, (Law.) Sir W. Grant. Lords Eldon and Auckland. Sir W. Scott. Lord Grenville. Mr. Wilberforce. a Lord Auckland. to connive in the prostitution of a wife; and that wherever damages were desired, they were not deserved. Upon these grounds it was proposed, that among other measures a criminal proceeding shouldbe engrafted on the civil process; that the verdict of damages should be followed up by a criminal punishment of fine and imprisonment; that the prosecution should be by indictment before the grand jury, and carried on by the injured husband, after obtaining damages in a court of record. The fine and imprisonment would be a satisfaction to the public, and the damages were retained for the benefit of the poor man, upon whom the adultery entailed increased expences in the education of his children'. Thus a crime subversive of all morality and religion, and of the good order, rights, and happiness of civil society, would become subject to criminal jurisprudence. It was the remark of Montesquieu, that the criminal law ought to be harmonious in all its parts. But if in the British code, renowned as it is for the wisdom and benevolence of its enactments, there did not occur any provision for punishing and restraining the vice of adultery, the code was in that respect defective, it contained an anomaly which was not desirable, and which it was the object of the proposed measure to remove. The best method of treating adultery was as a misdemeanor and a public wrong. Considered as a public wrong, it must at the same time be considered a private injury; and indeed there was no act of man on which the cri Lord Eldon. Mr. Erskine. Auckland. d Lord Eldon. • Lord minal code operated which did not involve a public wrong, as it implied a civil injury. Treason, robbery, assault, and battery were in their nature public wrongs, but they were also civil injuries. The crime of adultery was also a public wrong. Thus, while the rights of the individual are not merged in any general principle of jurisprudence, it was sought by the Bill not to divest the public of the means of correcting crime and punishing guilt. Adultery is lifted up by the common law and by our statutes into a public crime. Now with regard to adultery being considered a misdemeanor, it might be said, that most undoubtedly it did properly fall within that description. According to the laws of man, promulgated for the regulation and security of society; according to the laws of God, promulgated for the instruction and preservation of man; adultery was already a crime. But if these things were put out of view; if it were put out of view that the effect of adultery is to distract, and divide, and ruin families; if it were put out of view that it is a violation of the sacred ceremony of marriage; if it were put out of view that the order and succession of families, of that compacted and regulated state which constitutes and consecrates society, are disturbed and broken by adultery; still the vice is by law an indictable offence, and the measure in contemplation would do little more than give activity to the law. But looking at adultery as it affected society and families, what man was there who would not concur in considering it a most hideous crime? Adultery breaks up all domestic society; for the moment the mother loses the sense of moral obligation, children relax in the observation of their duties. The violation of the marriage vow in either man or woman was a transgression of moral duty, and an enormous crime against God and society'. In this measure domestic peace, public morality, and conjugal fidelity, were prostrate at the bar of the House, and pleading for every thing that could cement human society, and endear and sanctify its ties". The arguments in support of the measure were confirmed by the high reputation of its advocates, and by the authority of public and private character, which was found in the Bishops Porteus, Barrington, and Horsley; in the Lords Grenville, Auckland, and Eldon; the Attorney General, Law; the Master of the Rolls, Sir W. Grant; Hon. Thomas Erskine; Mr. Spencer Perceval; and Mr. Wilberforce. The general propriety of giving a criminal character to adultery was hardly denied: the chief force of the opposition was directed against the clause which prohibited the intermarriage of the adulterer with the adulteress; and that opposition was successful. Mr. Perceval nevertheless conceived that there had been a general admission of the criminal character of adultery, of the inadequacy of the existing law, and of the necessity of new measures to prevent and punish the offence; and he gave notice of his intention to introduce a new Bill upon the subject. Bishop Horsley also expressed his hope that the 'Mr. Erskine, whose opinions were fortified by a professional experience of thirty years, during which he had been concerned in all the principal actions for criminal conversation. See Parl. Rep. vol. lii. p. 234. Bishop Horsley. attempt would be renewed: but the hope of the one has been disappointed, and the intention of the other was not fulfilled". The English law of adultery retains its old character of being partial, ineffectual, and inadequate. It may be that there was an unnecessary complication in the details of the contemplated measure, and under the doctrine of divorce which prevailed and continues to prevail, opinions were naturally divided on the intermarriage of the adulterous parties in the event of a divorce of the husband from the wife. A strong feeling was nevertheless excited throughout the country, and the minds of men were drawn to the great question of the criminal character, the penal prosecution, and public punishment of adultery. Among other suggestions which the occasion called forth, it was especially and very powerfully proposed, that the man should suffer imprisonment, and that the woman should lose her fortune and be placed in a state of moral control. "In the case of the abduction of a man's wife, public fine and imprisonment for two years are added to the recovery of private damages, and both Efforts have from time to time been made for the amendment of a law, which as it stands at present operates as an inducement to the crime which it ought to prevent, and by its contrariety to Scripture is unworthy of a Christian country. A great and learned ornament of the law, it is said, once pledged himself in the House of Lords that he would use his utmost endeavours to render adultery by law a criminal offence. Every friend to the moral character of his country must wish him health and life and opportunity to redeem his pledge." Bishop Burgess. Greek Original of the New Testament asserted, p. xxxiii. |