206. But, now, all this supposes, that the husband has well and truly acted his part! It supposes, not only that he has been faithful; but that he has not, in any way, been the cause of temptation to the wife to be unfaithful. If he have been cold and neglectful; if he have led a life of irregularity; if he have proved to her that home was not his delight; if he have made his house the place of resort for loose companions; if he have given rise to a taste for visiting, junketting,5 parties of pleasure and gaiety; if he have introduced the habit of indulging in what are called “innocent freedoms”; if these, or any of these, the fault is his, he must take the consequences, and he has no right to inflict punishment on the offender, the offence being, in fact, of his own creating. The laws of God, as well as the laws of man, have given him all power in this respect: it is for him to use that power for the honour of his wife as well as for that of himself: if he neglect to use it, all the consequences ought to fall on him; and, as far as my observation has gone, in nineteen out of twenty cases of infidelity in wives, the crimes have been fairly ascribable to the husbands. Folly or misconduct in the husband cannot, indeed, justify or even palliate6 infidelity in the wife, whose very nature ought to make her recoil at the thought of the offence; but it may, at the same time, deprive him of the right of inflicting punishment on her: her kindred, her children, and the world, will justly hold her in abhorrence; but the husband must hold his peace.
207. “Innocent freedoms!” I know of none that a wife can indulge in. The words, as applied to the demeanour of a married woman, or even a single one, imply a contradiction. For freedom, thus used, means an exemption or departure from the strict rules of female reserve; and I do not see how this can be innocent. It may not amount to crime, indeed; but still it is not innocent; and the use of the phrase is dangerous. If it had been my fortune to be yoked to a person who liked “innocent freedoms,” I should have unyoked myself in a very short time. But, to say the truth, it is all a man’s own fault. If he have not sense and influence enough to prevent “innocent freedoms,” even before marriage, he will do well to let the thing alone, and leave wives to be managed by those who have. But men will talk to your wife, and flatter her. To be sure they will, if she be young and pretty; and would you go and pull her away from them? Oh no, by no means; but you must have very little sense, or must have made very little use of it, if her manner do not soon convince them that they employ their flattery in vain.
208. So much of a man’s happiness and of his efficiency through life depends upon his mind being quite free from all anxieties of this sort, that too much care cannot be taken to guard against them; and, I repeat, that the great preservation of all is, the young couple living as much as possible at home, and having as few visitors as possible. If they do not prefer the company of each other to that of all the world besides; if either of them be weary of the company of the other; if they do not, when separated by business or any other cause, think with pleasure of the time of meeting again, it is a bad omen. Pursue this course when young, and the very thought of jealousy will never come into your mind; and, if you do pursue it, and show by your deeds that you value your wife as you do your own life, you must be pretty nearly an idiot if she do not think you to be the wisest man in the world. The best man she will be sure to think you, and she will never forgive any one that calls your talents or your wisdom in question.
Notes
1. William Cobbett, “Letter IV, to a Husband,” in Advice to Young Men, and (Incidentally) to Young Women, in the Middle and Higher Ranks of Life: In a Series of Letters Addressed to a Youth, a Bachelor, a Husband, a Father, a Citizen or a Subject. New Edition. (London: Griffin, Bohn, 1862), 173, 177, 181, 183–84, 189, 193–200.
2. virago: a domineering, manlike woman
3. coadjutors: colleagues or assistants
4. For many Victorians, the practice of suttee served as an extreme example of ideal wifely devotion.
5. junketting: carousing
6. palliate: ease
John Paget, from “The English Law of Divorce” (1856)1
John Paget (1811–1898) was a police magistrate, barrister, and author. This selection offers insight into the logistical reasons why a Victorian husband who suspected his wife of adultery might choose to remain married to her, despite the fact that a wife’s infidelity was the only legal basis for divorce at the time. In this review article, Paget purports to present his readers with a “concise and intelligible summary” of the English court’s position on divorce. The difficulty, which the article points to with regular sarcasm, is that the laws are so convoluted and self-contradictory, that composing a “concise and intelligible summary” is simply impossible: the process was opaque, expensive, and extraordinarily cumbersome. It was also open to abuse, as a man could pay a willing agent to swear to having a relationship with his wife, and she was given no recourse to defend herself in the criminal proceeding and scant opportunity in the ecclesiastical proceeding. Paget’s argument anticipates the reforms that the 1857 Matrimonial Causes Act attempted to effect.
One of the obstacles in the way of a prompt and thorough reform of our Ecclesiastical Courts,2 is the difficulty of obtaining accurate information with regard to the practice and actual mode of working of those courts, divested of the technical language (which to the ears of the uninitiated, seems an unintelligible jargon) in which their proceedings are carried on. The phraseology of our courts of Common Law has become grafted into our ordinary conversation, and everybody is familiar with plaintiffs and defendants. It is not so with the language of Doctors’ Commons;3 and if, in a mixed company, any one were to speak of promovents, impugnants, producents and administrants,4 he would be justly suspected of pedantry, and would probably be utterly unintelligible, unless some one of his audience had the misfortune of having at some time filled one of those characters. In such a case, the speaker would in all probability find that he had touched a very sore place, and would turn the conversation, and get out of the scrape as quickly as possible. We purpose, therefore, to place before our readers a concise and intelligible summary of the position in which the law now stands on the most important, and at the same time the most difficult matter confided to these courts, viz., that of divorce.
We shall not, in this article, enter upon the vexed questions as to what should, and what should not, be a sufficient ground for a divorce. All civilized countries which permit divorce at all, recognise the infidelity of the wife as a sufficient ground for relieving the husband from the bond of marriage. The law of England permits a legal separation, or divorce a mensâ et thoro,5 on proof of such offence having been committed by either party; but in practice, and with exceptions too rare and peculiar to require notice, grants a complete divorce a vinculo6 only at the suit of the husband. Continental codes grant a complete divorce to the wife, if the husband has outraged her by bringing the partner of his guilt under the roof where the wife inhabits. The law of Scotland and of the principal States of North America, visits the infidelity of the husband with the same penalty as the infidelity of the wife.
For our present purpose, we accept the law as it stands; and when the law has determined what circumstances shall entitle any party to demand a divorce, we presume it will be admitted that every delay, every expense, every difficulty, except what is necessary for satisfactorily proving the existence of those circumstances, is a wrong and an injustice. Let us see how the law of England, having determined that a husband whose wife is unfaithful shall be entitled to a complete divorce, sets about to achieve that object.
It begins hopefully, by flatly contradicting itself.
The Law says, when you have once entered into a valid marriage, no subsequent circumstance but death shall absolve you from it, and enable you to contract a second union.
The Legislature says, prove that your partner in the marriage-contract has been faithless, and we will alter the law in your individual case; but we will only do so on the condition that you shall have previously obtained every redress tha
t law will give you for your wrongs.
The first step which a husband is thus compelled to take to obtain his freedom, is one revolting to every man of honour and high feeling. He must appraise his wife, put a money-value on the sanctity of his hearth and the purity of his bed, pocket the price of infidelity, in the form of damages in an action of crim. con.,7 and extort by law what he would be eternally disgraced were he to accept if voluntarily offered!
He then enters the Ecclesiastical Court and sues for a divorce a mensâ et thoro. Hitherto, revolting as the action against his wife’s seducer is to all his feelings, he has been fighting in open day. But the scene now changes. As sometimes happens in a London fog, a single step takes him from broad daylight into the thickest obscurity. He may be met with counter charges, utterly groundless but difficult to disprove, and what is the machinery which the law provides for the elimination of truth in the Ecclesiastical Courts? Here is a picture by no means overcharged of the process:—8
“In all courts the first material proceeding in the inquiry, and which necessarily precedes the evidence, consists in the statement of the case on each side, and these statements are technically known by the name of ‘The Pleadings.’
“In a criminal case they consist of the ‘Indictment’ and ‘Plea.’
“The ‘Indictment’ is a short and plain statement of the offence with which the prisoner is charged.
“The plea of ‘Not guilty’ requires the prosecutor to prove the case, and entitles the prisoner to give any evidence in his power of his innocence.
“In an action at Common Law the pleadings consist of the ‘Declaration,’ which contains the plaintiff’s statement of his ground of complaint—the ‘Plea,’ which contains the defendant’s answer; and if anything further remains to be told, these are followed by the ‘Replication’ and ‘Rejoinder,’ and other pleadings, distinguished by various technical designations, until the story on each side is fully before the court.
“In Chancery9 the same object is obtained by the ‘Bill’ of the plaintiff and the ‘Answer’ of the defendant.
“A suit for divorce by reason of adultery, in the Ecclesiastical Courts, partakes of the nature both of a criminal and a civil proceeding.
“The wife is on her trial for a crime, and so far as regards her the proceeding is criminal.
“The husband seeks redress for a wrong, and so far as regards him the proceeding is civil.
“The pleadings consist in the first place of the ‘Libel,’ which is exhibited by the husband or ‘Promovent,’ as he is technically called.
“This is analogous to the Indictment in a criminal or the Declaration in a civil proceeding. It contains a statement of the complaint.
“This is met by a Plea or ‘Defensive Allegation,’ which contains the counter-statement of the wife, who is technically designated as the ‘Impugnant.’
“If further facts have to be brought forward on either side, and the nature and circumstances of the case are such as to render it necessary, each party may state those further facts and add to their original statements by pleading ‘Additional Articles’ until the story is complete on both sides.
“We now come to what is the pith, marrow, and essence of every judicial inquiry, however conducted—the Evidence. Each party produces his witnesses.
“Here the great and striking difference between the mode of procedure in the Ecclesiastical Courts and the Courts of Common Law commences.
“The proctor draws, or is supposed to draw, the article in support of which he produces a witness, from information furnished to him by that witness. The witness tells his story to the proctor. The proctor draws the article from the information so given, and then sends the witness in to prove it.
“This is the case where proctor and witness are both honest; but there is nothing whatever, except the subsequent penalties of perjury upon the witness if he is caught out, to prevent the process from being reversed, and the proctor from drawing the article to suit what he wants to prove, and then finding a witness to prove it.
“If the witness has a tolerable memory, and is sufficiently unscrupulous, he is pretty sure to prove any article he is designed to, for he goes direct from the proctor’s or attorney’s office to the Examiner, who is an officer of the court; he sits with him in a private room, no eye to watch him, no ear to mark his faltering voice as he approaches the perjury he is about to commit; the article he is to prove is read over to him, and his deposition taken down, almost in the very words to which he has been drilled by the attorney or the proctor whose office he has just quitted.
“This machinery, ingeniously as it is adapted for ensuring and protecting falsehood, sometimes fails. It occasionally happens that a witness shrinks from the actual commission of the crime he has undertaken, and speaks the truth he has promised to suppress; but this, as may well be supposed, is rare, and in general it may be assumed that a witness proves in chief the article to which he is designed.
“We now come to the cross examination.
“Before a witness is produced, the proctor for the opposite party receives notice of the name of the witness and the articles he is vouched to support, and he then prepares interrogatories to be administered to the witness. These interrogatories are reduced into writing and given to the Examiner, who cross-examines the witness from them; but they are not communicated to the party who produces the witness, nor does he know what questions have been put, or what answers have been given, unless the witness divulges them, which he is cautioned not to do, a caution which, it is presumed, he does not very often obey. The proctor or counsel who prepares the interrogatories does not know what the witness has deposed in chief; and, as the examination in chief and the cross-examination are both in secret, it follows that there is no re-examination.
“The evidence remains under the seal of official secrecy until it is completed on both sides; when that is the case, each party is entitled to know what has been sworn, and, as it is technically called, ‘Publication passes.’ . . .
“If the ingenuity of man had been employed for the express purpose of inventing a scheme for the concealment of the truth, one more perfect could hardly have been devised.
“The evidence is given in secret. Not even the judge who has to decide upon it is present when the witness is examined. No one but the officer of the court, whose lips are sealed by his official duty, knows the manner, demeanour, or general behaviour of the witness whilst giving his evidence.
“Cross-examination, the sword of truth, is turned from steel to lead. All who have wielded that weapon know how powerless it is except in the swift thrust and parry of oral contest. It is only in the rapid movements of such a struggle that the joints of the armour of fraud open and admit its point.
“A cross-examination by written interrogatories, in secret, and where the evidence given in chief is unknown, must (except under circumstances of the most extraordinary good fortune) be a mere farce, a ‘mockery, a delusion, and a snare.’”10 . . .
[Paget next describes a similarly confounding process in the civil courts.]
Having passed this ordeal—having, notwithstanding the difficulties thus opposed, established his right to a divorce a mensâ et thoro, to a decree which, while it relieves him from the society of his faithless partner, sentences him to “live a man forbid,”—he is at last permitted to appear at the bar of the House of Lords, there to commence de novo,11 to prove over again what he has proved twice before, and to establish, for the third time, a right to redress, so strong that it entitles him to relief by a special Act of Parliament. Thus, whilst law and justice admit that the right to relief is unanswerable, the only mode by which that relief can be obtained is when, after three tedious and expensive processes—after commencing with an action which a Lord Chancellor has denounced as “a disgrace to the country,” and “a stigma on the law of England,” and concluding by a process which a Chief Justice has declared to be “a scandalous practice,” and a lay peer has held up to contempt, as �
��disgusting and demoralizing,” the sword of the Legislature at last cuts the knot in the individual case, and leaves the law of the land where it found it—in what law-makers themselves have designated as a “barbarous,” “indecent,” “oppressive,” “anomalous,” “preposterous,” and “utterly disgraceful” condition!
Such are the means which the law provides for the vindication of an unquestioned right, in the very small number of cases in which it permits that right to be vindicated at all; for a process, the cost of which must amount, at the lowest estimate, to many hundreds of pounds, and may, and frequently does, amount to thousands, can be attainable only by a very small percentage of the persons aggrieved. But partial, costly, and inefficient as is the assertion of a right, this same law becomes the most terrible agent in the infliction of a wrong. Impotent to protect, it is powerful to oppress; weak for the weak, it is strong for the strong; powerless for good, it is omnipotent for evil.
Notes
1. John Paget, “The English Law of Divorce,” Westminster Review (April 1856): 338–42, 345.
2. Ecclesiastical Courts: courts of the Church of England with jurisdiction over religious matters
3. Doctors’ Commons: The Courts of Common Law adjudicate based upon precedent; here, the Courts of Common Law would take up criminal action as opposed to the Doctors’ Commons, which would address civil actions.
4. promovents, impugnants, producents and administrants: terms unique to the Ecclesiastical Courts, which are not used in any other branch of the law
5. a mensâ et thoro: Latin, “from bed and board”; as Paget notes, a legal separation as opposed to a divorce
6. a vinculo: shortened form of a vinculo matrimonii, Latin for “from the bond of marriage”; a total and complete divorce of the marital tie
7. crim. con.: criminal conversation, i.e., unlawful sexual intercourse with a married person; adultery
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