"could not pay them." Upon this the magistrate observed, "I don't think your application comes within the meaning "of the Act of Parliament. The husband has only left her "five weeks, and may return to-morrow." The application was refused. The Act does not say how long the desertion is to be. It must, however, be sufficiently long to put the woman on her resources, whether of body or mind. This seems the test. It may arise in less than "five weeks." 20. The injury under this section is not the desertion, but the reappearance and the tyrannical use made of the marital power. The wife seeks protection not because the husband. has gone away, but because he has come back and plundered her, or may do both. This seems to be Lord St. Leonards" view, for his lordship represents the mischief as consisting in the fact of the husband "returning only to rob his wife of her miserable earnings." "'* Who does not see that the very best thing for the wife would be to make his desertion perpetual? 21. The French law does not require desertion, because the protecting order may often be more useful when the husband burdens his wife by a too constant adherence,-living at home idly on her industry, or squandering in dissipation out of doors her savings. Section 21 will probably be soon amended. 22. In a case before the borough magistrates of Leeds, it appeared that the husband had deserted his wife on the 13th March 1848, and that she had since, by her own industry, acquired property, consisting of eleven houses, furniture, money, &c. The husband did not appear. The order was very properly made at once. 23. It is not wonderful that magistrates should begin by pronouncing some odd decisions; for the twenty-first section would have puzzled Lord Mansfield himself. This case has just occurred before the Mayor of Exeter :-The applicant for a protecting order stated that her husband had not only deserted her for five years, but had committed bigamy, for which he was in prison awaiting his trial. She further stated that in June last he came to her house utterly destitute; and she, not knowing of the bigamy, gave him shelter, which, * Handy Book, p. 76. indeed, she was bound to do. As she was prospering in the occupation to which she had betaken herself, his creditors threatened to overwhelm her. The mayor refused the order, observing that the first desertion was got over by the husband's reappearance in June, and that the second desertion. was but the involuntary consequence of incarceration! * As the rulings of the Court are to instruct the inferior magistrates, it is to be hoped that those rulings will not be in chambers. 24. A protecting order will operate retrospectively to the date of the desertion. A judicial separation only from the date of the sentence; see supra, p. 63. It may be expedient, therefore, in many cases, to use both remedies. 25. In general it will be safer to make the protecting order than to refuse it, because it is always open to the husband or his creditors to have it discharged. 26. A prudent woman obtaining a protecting order will put the money, if the property consist of money, in the savings bank or some other security, in her own name; because as to it she will be a feme sole. If she omit this precaution, her husband may lay his hands on her savings whenever he thinks proper to present himself, for she cannot shut her door against him. And this shows the difference between the position of a wife armed with a protecting order and that of a wife judicially separated. 27. It appears probable that protecting orders will in many cases render judicial separation unnecessary. They will improve the qualities of husbands, by showing them that they are not to have everything their own way. *Times, 29th January 1858. CHAPTER XXIII PROTEST AGAINST THE DEFECTS OF THE DIVORCE BILL; SIGNED BY LORD LYNDHURST. 1. First reason. 2. Second reason. 3. Third reason. 4. Fourth reason. 5. Fifth reason. 6. Sixth reason. 7. Seventh reason. 8. Eighth reason. 9. Ninth reason. 10. Tenth reason. 12. Twelfth reason. ON the 23rd June, 1857, the Divorce and Matrimonial Causes Bill having been read the third time in the House of Lords, an amendment was moved to strike out the word "incestuous" contained in the clause allowing divorce to the wife where her husband was guilty of incestuous adultery; see section 27 of the Act, and Chapter V., supra, p. 31. The proposed amendment, however, was rejected, though supported by Lord Lyndhurst. Against this vote of rejection the following powerful expression of dissent is entered in the Journals, and is here inserted as a guide for further legislation : 1. Because the effect of rejecting this amendment will be to confine the dissolution of marriage upon the adultery of the husband to the four cases* stated in the bill, which we consider to be not only inexpedient, but, as contrasted with the relief upon the adultery of the wife, partial and unjust. 2. Because, as the clause is framed, although the husband should be living in the most open and notorious adultery, and should even bring his mistress into the family residence,† * See Chapter 5 supra, p. 30. The number of cases, in the Act, is more than "four." The Commons expanded the remedy. † At the instigation of Lord John Manners, and with the concurence of Lord John Russell, the Commons inserted a clause giving the wife divorce when her husband "committed adultery in the conjugal residence;" a most reasonable and excellent clause, and a great improvement on the corresponding one in the Code Napoleon, though the objects of both are evidently the same, namely, to secure domestic purity, and save the wife from an "odious rivality." The truth is, insulting the wife by her presence, and should endeavour by ill-usage to compel her to submit to this disgrace, such a case would not come within its provisions. 3. Because the adultery of the husband, accompanied with the commission of the greatest crimes, and even the most infamous vices, would not entitle the wife to relief under this clause. 4. Because the adultery of the husband, although coupled with his condemnation to penal servitude, even for life, and the consequent degradation and misery of the wife, would not, under the provisions of this bill, enable her to obtain a dissolution of her marriage. 5. Because many other cases of similar injustice and hardship are excluded from relief under this clause. 6. Because to allow a divorce for the adultery of the wife, and to refuse it in these and other cases of adultery by the husband, coupled with acts of deep injury inflicted upon the wife, is manifestly unjust. 7. Because, although the adultery of the wife may lead to the imposing a spurious offspring on the husband, and entitle him to a divorce for a reason which would not apply to the case of adultery by the husband, other circumstances may and frequently do occur in connection with the adultery of the husband, giving the wife an equal claim to this remedy. legislation will continue unsatisfactory till the views of Lord Lyndhurst in the one House, and Mr. Gladstone in the other, are made good. I say Mr. Gladstone, because, although originally opposed to divorce, he declared at the outset that if divorce were to be granted at all, it must be on the principle of equal justice to both the sexes. To the vindication of this principle he directed all his powers of reasoning and argument, assisted, not impeded, by the indignant fervour of scornful eloquence. Here, too, the Attorney-General gave in readily, in spite of the duty cast upon him; and he denounced the refusal of all redress to the wife as 66 opprobrious and wicked." Mr. Gladstone said, "the admission of the Attorney-General does him honour." By the principle of equal justice, however, we do not mean that a single act of adultery by the husband is as bad as a single act of adultery by the wife. When she commits adultery the husband's remedy ought to be peremptory; when he is guilty the Court should have a discretion. To make justice equal we must measure the injury. See what is said as to the plea of recrimination, supra, Chapter VII., p. 43. Lord John Manners' clause, however, was struck out on the return of the Bill to the Lords, notwithstanding the support of Lord Cranworth and the rest of the Government. 8. Because no distinction is made in Scripture between the case of the man and of the woman in the commission of adultery. The sin is the same in both-both are included under the same prohibition. 9. Because the whole tendency and spirit of the Christian religion is manifestly calculated to raise women to equal rights and equal responsibilities with men. "It has," in the words of an eminent writer on general law (Chief Justice Story), " elevated woman to the rank and dignity of an equal, instead "of being an humble companion or a devoted slave of her hus"band;" and accordingly we find that as Christianity extended itself, and its influence was brought to bear upon social and civil affairs, so the condition of woman was improved, and her rights to protection and redress were acknowledged. With respect to marriage and divorce, the rule of the Roman Catholic church applies to both sexes equally, while all Protestant legislatures (except our own), in declaring that marriage may be dissolved for the cause of adultery, have accorded to the wife the same rights and remedies as to the husband. 10. Because by our Ecclesiastical Law (the only law at present applicable to this subject) the same judgment is pronounced in the case of adultery, whether the crime be committed by the husband or the wife; and there appears to us no reason why, in extending the remedy, the principle should be changed. 11. Because as to the objection that the extension of the law to cases of adultery by the husband will give occasion to a great number of suits for divorce, we think such apprehension is altogether groundless. The proceedings can originate only with the wife, and she has, both as to feeling and interest, so much at stake, so much to relinquish which must be most dear to her, that we think there is little fear of her resorting to this remedy except in extreme cases, and after all hope of amendment has ceased. 12. Because by the law of Scotland the adultery of the husband with respect to divorce is placed on the same footing with the adultery of the wife. This law is found to be attended with no inconvenience. The evidence upon the subject is above all exception, and we deem it most desirable |