! that laws which so deeply affect the social and moral condition of the people should, in contiguous parts of the same empire, be in accordance with each other. HUTCHINSON. HARRINGTON. LYNDHURST. TALBOT DE MALAHIDE. CHAPTER XXIV. THAT FIVE YEARS' DESERTION SHOULD BE A GROUND FOR DIVORCE; BY LORD LYNDHURST. 1. First reason. 2. Second reason. 3. Third reason. 4. Fourth reason. 5. Fifth reason. 6. Sixth reason. 7. Seventh reason. On the 23rd June, 1857, Lord Lyndhurst moved the insertion of a clause which would have entitled the wife to divorce where her husband had been "guilty of wilful desertion without reasonable cause for five years or upwards." This having been objected to, the question was put, and Lord Lyndhurst's motion was negatived. Against this vote Lord Lyndurst's protest is entered in the Journals. The following are the grounds on which his Lordship rested his dissent, namely: 1. Because the contract of marriage is the most solemn engagement into which a man can enter, and in which he promises to love, comfort, and honour the woman, and keep her under all circumstances of sickness or of health, and adhere to her as long as they shall both live. 2. Because the purposes of this engagement, as deduced from Scripture, are of the deepest interest and importanceviz., for the birth of children to be brought up in the love and fear of God, for a remedy against sin, and for mutual society, help, and comfort, both in prosperity and adversity. 3. Because by wilful desertion not only is this sacred promise impiously violated, but all the purposes for which this ordinance of God was instituted are wholly frustrated. Even in the most ordinary contract the breach of it on the one side puts an end to the obligation on the other, and we see no reason why a different rule should be applied to the contract of marriage, and more especially in a case destructive of the entire objects of the union. It appears to us to be contrary to all principle, and most unjust, that the husband should be permitted to set at naught an engagement followed, as it must be, by such consequences, and that the woman should continue to be bound by it. 4. Because we feel strongly the extreme cruelty of such conduct towards the deserted wife, in the utter disappointment of all her confident expectations of happiness from the promised love, comfort, and society of her husband, and leaving her without hope to the contemplation of a long, dreary, and desolate future. 5. Because divorce from this cause is justified as scriptural by the highest ecclesiastical authorities. It is well known that at the Reformation the subject was anxiously and carefully considered by prelates and divines eminent for learning and piety, and that they came to the conclusion that wilful desertion was a scriptural ground for divorce. We find the names of Archbishop Cranmer, of the Bishops of London, of Winchester, Ely, Exeter, and others, of Latimer, Parker, &c., of Peter Martyr, Martin Bucer, Beza, Luther, Melancthon, Calvin, &c., among those who maintained this opinion, and which was adopted by the whole body of Protestants on the continent of Europe. Accordingly, this has been the acknowledged doctrine of all their churches to the present day. We find the same doctrine expressly stated and adopted in the eighth article on divorce in the Reformatio Legum Ecclesiasticarum, compiled under the authority of Henry the Eighth and Edward the Sixth, which body of laws, although it did not receive the confirmation of the Crown, in consequence of the early and unexpected death of King Edward, has always, as the Commissioners on the Law of Divorce, in their Report, justly observe, been considered of great authority. We also find that at a more recent period a right reverend prelate, eminent for learning and talents (Cozens, Bishop of Durham), in his celebrated argument delivered in this house in the case of Lord Roos, maintained the same opinion. His words are these:-"The promise of constancy in the marriage ceremony "does not extend to tolerating adultery or malicious desertion, which dissolve the marriage." 6. Because, by the law of Scotland, wilful desertion, as in all the Protestant churches on the continent, is considered to be a scriptural ground for divorce, and the law in this respect is regarded by all the first authorities in that country, not only to be free from inconvenience, but as just and highly beneficial. We further deem it to be most desirable that upon such a subject as marriage and divorce, affecting as it does the whole social system, the same law should, as far as practicable, prevail in both parts of the kingdom, and the more so as continued experience has shown the great inconvenience occasioned by the difference and anomalies of the two systems. 7. Because, as to the objections to the proposed extension of this measure on the ground of its tendency to demoralize society, this is not only disproved by the example of Scotland, but a careful examination of the state of society in Roman Catholic countries will, we think, lead to the conclusion that the principle of the indissolubility of marriage is far less favourable to morality than the opposite doctrine, accompanied with a cautious exercise of the power of divorce in such extreme cases as those of adultery and malicious desertion. 8. Because, as to what is urged with reference to the law of our Ecclesiastical Courts, we answer that the object of the present bill throughout is to amend that law, and to render it more consistent with reason and justice; and with respect to the Church of England, we will merely repeat what we find stated in the argument of the learned prelate to which we have already referred, viz., that "we cannot see why they are "to be styled the Church of England who join with the "Council of Trent rather than those who join with all the "reformed churches, and plead against the canon of the Church "of Rome, which hath laid an anathema upon us if we do "not agree with them." LYNDHURST. HUTCHINSON. CHAPTER XXV. AUTHORITIES AND ILLUSTRATIONS. 1. Cases of cruelty. 2. Cases of desertion. 3. Lenocinium. 4. Connivance. 5. Collusion. 6. Condonation. ] 7. Recrimination. 8. Wilful separation. 10. Misconduct. 12. Effects of divorce. 13. Effects of separation. 1. CRUELTY. MR. N― left his wife Lady C― N. at Coulson's hotel in the sitting room with the door locked; and on the same evening, after two hours' absence, he returned, and she, hearing his arrival, withdrew into the bedroom and bolted the door, which he endeavoured, but without effect, to break open; soon after Lady C--- came into the sitting room, which was open, and one of the waiters took hold of her and pushed her back, and on her telling him he had no business to touch her, he replied that he did so by order of Mr. N——; Mr. N▬▬ then came to the door and dragged his wife back to the sitting room with great force and violence, saying "she might take herself off the next day where she pleased, but she "should not go out that night." (She wished to go to her father's.) At 7 o'clock the same evening Lady H—— C., sister of Lady C—, came to Coulson's hotel; on Lady C―― accompanying her said sister to the door, Mr. N- again caught hold of her and pulled her back with such force and violence as occasioned her great pain, and the marks and bruises occasioned thereby were seen by many persons, and were visible for several days. Per Dr. Lushington: “Assuming that all this was with"out excuse, there still appears nothing to induce me to arrive at the "conclusion that Lady C- cannot return to cohabition without the "risk of personal violence."--N▬▬▬▬ v. N▬▬, 4. Hagg, Ecc. Rep. Per Lord Brougham: "That the ground of the remedy is confined to personal violence is not my opinion of the law of England, and I am quite clear as to the law of Scotland. I am convinced that the law is nearly, if not altogether, the same in the two countries. It is not true "that the law of England requires either actual injury to the person, or "threat of such injury."-Paterson v. Russell, 7 Bell, App. Ca. 337. 66 There may be a systematic persecution without blows; thus, per Lord Brougham: "Suppose a man were continually charging his wife with every "sort of immoral and criminal conduct, and there was not the shadow of a foundation for those charges made before her family, her friends, rela❝tions, and servants, and in the face of the world, I have little doubt that "what now rests only upon opinions would ultimately assume the form of "decision, namely, that to such injurious treatment, making the marriage "state impossible to be endured, and rendering life itself almost unbearable, "the probabilty is very high that the Consistory Courts of this country |