therefore, the House agreed to such a bill, it should be shown that it would produce the good effect desired. Adultery was undoubtedly a crime. It was inconsistent with the security of society, and ought to be restrained in every way that sound policy would dictate. But he was afraid that frequent and severe punishments did not tend to prevent the commission of crimes. The House should be cautious how they passed laws which would add to the criminal code of the country. There did not appear to him any reason for complaining of the morality of the people. In latter times, under the influence of altered habits of thinking, we saw the husband sue for a divorce, but might not this be as certainly occasioned by a refinement in morals as by the alleged greater turpitude of our days? The clause in the bill disqualifying the woman from marrying her seducer was peculiarly severe and impolitic. An unhappy female who, yielding to the weakness of her nature, permitted herself to be allured by the arts of a practised seducer, or by the importunities of a deJuded lover, was by the bill to be banished society, to be driven from the protection of her friends, and to be doomed to a life of sorrow and of solitude. The House would do well to recollect, that by inflicting too severe a punishment, women were likely to become objects of pity, who should be objects of indignation. In other respects the bill was highly objectionable. It violated the principle of the trial by jury, and trenched on the principle of free and independent legislation. The clause making adultery a misdemeanor, would not answer the expectations of those who framed it. What induced a man to marry the woman he had seduced? Why, a sense of the injury done by him to society. But if once the law enacted so severe a punishment as imprisonment, was it to be supposed that men who would be sent into the world like felons, would, after suffering so much, feel at all disposed to consider with tenderness the situation of the female? The bill tended, in his opinion, unnecessarily to increase the rigour of the penal laws, and for these reasons, he would oppose it in every stage. Mr. Erskine said, that he should consider the question both as it regarded the morals of the country and the law; more especially because he was quite sure, that the defect in the law which it was the ob ject of the bill to remedy had corrupted our morals and almost encouraged adul tery, which though the most dangerous of all misdemeanors, was most unaccountably not to be found in the criminal code of England. It had been said in the former debate, that adultery had not increased; but supposing the fact to be so (which he did not believe), it was no kind of objection to the bill before them, as its preamble did not assert the increase of adultery as the foundation of the enacting part,-it only stated, that it was expedient to make further provision for checking the crime; and as it surely could not be denied that it had long existed in a dangerous and disgusting degree, that was a sufficient reason for considering the laws against it, and for removing their defects. It was by no means necessary to go into an unnecessary and doubtful comparison of the present with former times; for his own part, he was happy to express an opinion he had always entertained, that there was as much virtue in the great mass of the people as at any, former period,-a truth which ought to animate the legis lature to the parental duty of preserving it, more especially as wealth and luxury in the capital had opened many temptations which had not existed before. The law as it regarded adultery was a compleat anomaly. Montesquieu had well observed, that the criminal code in every country ought to be uniform and universal in its sanctions; yet in England adultery formed the exception, and most unaccountably the only exception. The true way of proving this was, by attending to the nature of public wrongs and misdemeanors. Every possible wrong comprehended, or rather constituted, a civil injury; but some wrongs were so unusually dangerous and grievous to individuals, and from their frequency so injurious to the whole public, that they were lifted up into the scale, and became criminal offences. It was upon this ground, independently of the moral turpitude of the acts themselves, that murder, robbery, conspiracy, perjury, assault and battery, &c are inditable offences. Nobody could possibly attempt to deny that this was the whole theory of criminal law; nobody who had ever read a page in the 4th book of Blackstone would think of calling it in question; yet when this principle was admitted, adultery instantly took its place, as of right, in the criminal code as a high crime and misdemeanor, and an enlightened foreigner therefore must be astonished when he finds such a blank in a system which had excited for ages the admiration of the world. The opposers of the bill were consequently obviously bound to show that a greater evil would be produced by giving it that place than by leaving it a civil injury only, as the law now stood. There could be no other rational ground of opposition, since it was surely impossible to maintain that the crime of adultery, forbidden as it was by the law of God, was not an additional reason for its being placed in the criminal code of every Christian country. In considering its enormities as a private wrong, he would put out of view, for the present, the considerations which ought to raise it at the same time to be one of the highest public offences, and would ask only whether it was possible to contemplate a greater act of cruelty and injustice than to rob a man of that "where he had garnered up his hopes-where either he must live or bear no life?" It was impossible for language to describe the unutterable tortures that this basest of wickedness too often had produced. All other injuries, when put into the scale with it, were as nothing. What, then, was wanting to compleat the definition of a criminal offence in a civilized nation? What but its public consquences? and was there any other private wrong which produced so many? The sanctity of marriage, a contract which was the very foundation of the social world, was violated -religious and moral duties made a sport of the peace and happiness of families utterly broken up-the protection of daughters destroyed, and their characters, though innocent, disparaged in opinion by the mother's dishonour.-Now was not a nation made up of families, and would it not be the height of folly to say that national prosperity was not deeply affected by such a crime? It had once been an offence of the highest order, and it was no argument to say that because, in the time of the Commonwealth, it might have been too severely visited by the pains of death, it should now have no punishment at all. It was, in every legal sense of the expression, a misdemeanor, and it was a distortion of the very elements of criminal law not to deal with it as a crime; and without any unnecessary panegyric upon the trial by jury, where else could it be impartially considered? nor was there a colour for saying, that any improper power would be vested in the judges by the ordinary jurisdiction of discretionary punishment. Mr. Erskine said, that it never perhaps had fallen to the lot of any man to have conducted so many civil actions of this description, and it was the result of that experience which had convinced him, not merely of the impropriety, but of the senseless absurdity of considering adultery as a civil injury, instead of a high public offence. He had often indeed felt himself at a loss how to deal with the subject, when he recollected what he was asking from a jury for the sufferer, since the man who could consider any sum in the world as a satisfaction in damages for such an injury, deserved no damages at all. And this formed the shocking absurdity of the law, because instead of a severe criminal punishment, which even in honest resentment, was a species of consolation and satisfaction, it made it a civil injury, though incapable of a civil reparation. A person falsely imprisoned or assaulted, or the subject of many other civil injuries, could receive some reparation in money, but was it possible for a man of any principle or feeling, to receive money as a satisfaction from the man who had possessed the woman he loved, and expose him to the bitter pangs of so cruel a separation? So far from being a satisfaction, it could only remind him of the irreparable loss he had sustained. Thus by giving damages when none could be received as a satisfaction, and allowing no criminal prosecution, the law seemed to be most curiously contrived to disappoint both the sufferer and the public.-He perceived that the bill proposed that it should not be competent to any but the husband to bring the charge before a grand jury; which was another anomaly, but which might be justified, and which if not, might be altered in the committee. They were only now upon the general principle of the bill, which lifted up this pernicious offence to its true place and station as a misdemeanor. This course would also be more favourable to defendants, where there were proper circumstances of mitigation, than the civil remedy, by action. Every lawyer knew how difficult it was by the cross examination of witnesses, to get at them, and the hazard of giving adverse evidence, which gave the plaintiff's counsel the opportunity of enflaming the damages by a reply when the sudden impulse of the jury were in the moment to decide on the damages; whereas, after a criminal trial and conviction, they would have all the advantage that occasions could warrant in the cool consideration of the judges at a future period. On the other hand, if this discretionary punishment could be objected to as likely to be over severe, then the whole criminal code, as it regarded misdemeanors, must be recast, and it would be rather a novel mode of bringing about such a change, even if it could be considered as a reformation, by an objection to this particular bill. Had it been injurious to women from any defect of justice, to them in its provisions, or wanting even in fair protection to the guiltiest, he would have been the last man to support it, but he approved of the disability to contract marriage with the adulterer, which in the very outset of seduction would expose the snare by which so many had been ruined. On the principle of universal law, no contract, above all the most sanctimonious, should be founded upon the criminal breach of it; nor should a woman be permitted to go to the altar with a man who had seduced her to violate the sacred obligation she had formerly offered at its shrine. Mr. Erskine said, he owed it in justice to women to say, that his unexampled experience in the courts, on this melancholy subjects enabled him to declare, that the fault had rarely been in them; and the salutary operation of the bill now before them would be, that it cautioned them against disgrace, and by the infliction of a severe punishment upon the seducer, would be a check to him also, before his passions were too far engaged to be arrested in their course. Besides, if adultery were made a misdemeanor, we should not see the aduli terer received in society as if nothing at all had happened, because it would be the office of the judges in cases of just aggravation, to preserve, by severe examples, the morals and manners of the people. Upon the whole, therefore, as he thought much good might follow from the measure, he should give it his support. Mr. M. A. Taylor said, that no particular reason had been assigned for passing of this law. He saw neither its expediency nor necessity. No case had been shown, from the increased number of divorces, or the flagrancy of the crime to induce the House to make any further provision against it. Had it been proved that divorces were now only looked upon as matters of course? He was afraid if morality and religion had not their proper effect upon the minds of the people, that acts of parliament and severity of punishment would never answer the end. If we compared present with former times, or this with other countries, he thought we might feel proud from the comparison. This bill, he was afraid, would be of an injurious tendency to the morals of the people, whilst it would throw a lasting odium upon the existing age. Because France had done every thing against morality, was that a reason why we should contradict the two first principles of our religion, charity and repentance, and give way to the methodistical cant of the times? Besides, if severer punishments were requisite in case of other crimes as well as this, why select this? If the law as it now stood, and as it appeared to him, was wise, why change it? He entertained as high a respect for the judges as any man but still he could not approve of investing them with the power of inflicting the discretionary punishment proposed by this bill. Add to which, that in his opinion it would go to violate the rights of juries, whose province was to weigh and detertime the quantum of damages to be awarded. If this was a question respecting which many doubts were entertained both in and out of the House, and by many wise and able men, why should the House be pressed to go into a committee, before gentlemen's minds were fully made up, and without sufficient proof being made out of the necessity for the measure? In his opinion, this bill would go to screen nine adulterers out of ten. There were many cases, as the law at present stood, when in a civil action juries would say, that although the flagrancy of the crime was not sufficiently proved, they saw enough to find a verdict of damages; but if tried as a misdemeanor, juries would then require the most circumstantial and positive evidence before convietion. According to this bill, and upon the trials being prosecuted in a criminal court, the evidence of the woman with whom the adultery was committed, might be produced, and thus such scenes would be laid open in courts of justice, as he hoped would never be sanctioned by the vote of that House. He put it to the House to consider what effect such shameful proceedings would have in corrupting the morals of the country. He might, indeed, say, in the words of a great moralist, "Eheu * Quam temere in nosmet legem sanctimus iniquam! Nam vitiis nemo sine nascitur; optimus ille est, Qui minimis urgetur." Mr. Windham said, he did not conceive it necessary to dwell any time on the importance of the measure: that was acknowledged by all who had given it any consideration. A great master of old had said, that marriage was the elementary principle of society; and this being admitted, it was incumbent on the House to consider how best to preserve that state in its integrity and purity. The first question which suggested itself in entering on this inquiry was, whether the law now proposed was necessary; and secondly, whether any change in the manners and morals of the people had arisen to require such a law? And whether on the other hand, the measure now offered was likely to operate the reform which was to follow from it? He was of opinion, that the bill would not be productive of such salutary effects as some gentlemen appeared to anticipate. The increased laxity of public morals, but especially the increased cases of divorces in late years, might be owing chiefly to our increased wealth, and to another circumstance not less decisive, namely, the very great extension of that class in society known by the general description of rich gentry. What had been said of the harmony of the criminal code was true, as general doctrine; but nothing so loose would do to be adopted as a ground of legislation. It was objected to the making of adultery a misdemeanor, that it would cause the extension of the principle, and lead to general laws for punishing even petty moral violations. As to the law not taking full cognizance of the crime of adultery, he would just remark, that if the law on the case was not in terms a penal law, it became such by its operation. There was a fine inflicted; this was a penalty, and therefore it was a penal law. He thought that it was brought forward without full consideration; that it was a hasty, immature measure, which had grown up by chance. Half of it was added to abill which was rejected, and only that half appeared to be at all concurred in generally; so that while the supplemental part was likely to be preserved, the first part would probably be lost. The chief objection to the bill was, not that the punishment bore unequally, but that it did not operate in both cases as a prevention. It was said that in point of fact its enactments would be a penalty on the woman, while it gave a premium to the man. Other objections had also been avowed. Some gentlemen adjured the House not to deprive the woman of the means of repentance; but surely that was a strange mode of repenting-for a woman to return to the arms of her seducer. In allusion to his mother's guilt, Hamlet was made to say, that his uncle's bed was not the natural place to repent the wrong done to a father. There was, as it were, a threat held out on the part of the woman, that if she should not be permitted to marry, she would go over to prostitution. Very few could sincerely admire this sort of sentimental affection, which ended on the part of the woman, in'a determination, that if she were not allowed to marry, she would go on the town; it would only do in a German play, or a chapter of a modern novel; the House would proceed on better and less sophis ticated principles. But most curious opinions had been held on this subject. It was said, that parties would be formed for the protection of the female, if the legislature did not protect her by sanc tioning marriage with her seducer. He could only answer to this by observing, that the effect of such a combination must be rather to sink those who enter into it, than support those on whose account they coalesce. With regard to marriage itself, he would not however dissemble, that he considered it a matter in which laws could do least, and manners most to protect it. The last clause, however, which prohibited marriage, was capable of infinite modifi cations. He wished, therefore, that the bill should go into a committee. Sir W. Scott said, that it appeared to him, that the increase of adultery was to be traced to the increase of wealth, to the increase of the habits and gratifications of luxury, and to the various additional opportunities which offered for the indul gence of sensual propensities. He was apprehensive no legislative provisions could effectually prevent a crime that operated in the most destructive way, upon the peace and happiness of society: yet, though no positive ground could be stated, that the present measure would prove adequate to an object so truly desirable, if it was likely to correct the evil to a certain degree, no man could oppose its adoption. It had been said that adultery was a crime: if it were really so, he : That there had been some increase in the number of adulteries in modern times might be true, but not more than was the result of the increase of population, and the increase of wealth, which latter now enabled parties to sue for divorces, who in former times were deterred by the consideration of expense. The additional frequency, therefore, of these cases being brought before the view of the public, was not to be called an increase of vice in society at large. However, as adultery was a great evil in society, if the provisions which the law made against it were found inadequate, the legislature was called upon to consider of some better remedy. It was therefore the duty of the House to proceed to the consideration of a bill which prohibited the offence, and was calculated to prevent its progress. wished to know how it was to be pre-nance from the husband without such aid. vented by the existing laws? It was evident that adultery was not recognized by any statute law whatever as a crime, nor followed by any specific punishment. He would also contend, that the civil law had enacted no punishment against it; and, tracing it in every possible line, he found that it was known to the ecclesiastical law only as a crime. By that law, it certainly might have been punished; yet the punishment was so severe, that it was disused, and became indeed, from the change of manners, altogether inapplicable. Before the Reformation, there were no di vorces in parliament; but were there no adulteries? Were there no proceedings in the ecclesiastical courts-adulterii causâ? He should think, from some circumstances, that in those times there was occupation enough in those courts of that kind. After the Reformation, for above 100 years, there was no proceeding in parliament for divorces: and for a reason he had given. But the ecclesiastical courts were entertaining suits of that nature. After parliament had very reluctantly entertained such applications, the public came in very slowly; for the prejudices of the country continued strong against the total dissolution of marriages; and it is not till within these thirty years that those prejudices were worn away, and that applications to parliament had become frequent. But the ecclesiastical courts were, in the mean time, open for separations à mensa et thoro; probably not in the number now received, since parliament made a proceeding in the ecclesiastical court absolutely necessary; because private separations could, in general, answer the purposes of a husband nearly as well as the separation by sentence; and there was just reason for thinking, that the ecclesiastical court was principally resorted to by women complaining of the infidelity of their husbands, and for compelling the payment of alimony in a state of separation. But suits were certainly entertained on the part of the husband, where he was determined to allow no subsistence to a delinquent wife, and no private agreement could be established; and he presumed that such suits were much more numerous than those which appeared in parliament. The husband, who had the power of the purse, could separate from the wife, without any aid of the ecclesiastical authority; but the wife could not enforce mainte The Attorney General said, that the object of the bill was, to punish adultery, and to regulate divorces. He certainly could not object to any just punishment that went to correct a crime of such depravity; but as far as the bill went to regulate divorces, it appeared to him to trench upon the privileges of parliament. When it was viewed in all its probable relations and effects, the consequences would be found to be, that the bill would necessarily interfere with that harmony and perfect accordance in the criminal code, so essentially necessary to be preserved for all the purposes of right legislation. He would, however, admit, that much might still be done in the committee to render the bill salutary in its operation. His hon. and learned friend had said, that adultery was not known to any law as a punishable crime, except in the ecclesiastical courts; but if he would look into the codes of the northern nations, as well as the ancient system of this country, he would find it had been punished severely, and with a cruelty which was not warranted even by the nature of the crime. When, indeed, Christianity had made a considerable progress, and the papal power had acquired great influence, the first code was changed, the original punishment was altered, and there was introduced into the ecclesiastical law the measure of punishment with which the crime was afterwards to be affected. That measure of punishment gradually lost its efficacy, and finally dwindled into insignificance. With respect to the clause in the bill which rendered adultery a mis |
