§ The House then resolved itself into a Committee of the whole House, to take into further consideration the Ellenborough Divorce Bill—Sir George Clerk in the Chair. The following witnesses were examined, Miss Margaret Steele, Mr. Freshfield, John King, and Thomas Kaims. After the examination of these witnesses was concluded, and it being understood that no further witnesses would be examined,
§ Mr. Humesaid, he supposed that the Chairman would now report progress, and lay the evidence before the House, in order to have it printed. He presumed that after what had taken place, after such contradictions and inconsistencies as had been extorted from the different witnesses, nobody would think of pressing this matter to an immediate decision. For his own part he was so astounded by the inconsistency of the testimony of the different witnesses, not only with the statements of one another, but also with their own statements, that he knew not at present on what part of it he ought to rest. He could not see how far each witness was to be credited or discredited; and therefore, considering the hurried manner in which the evidence had been elicited from the witnesses, and the indistinct and almost inaudible tones in which several of their answers had been given, he submitted that it would be better that the evidence should be printed, with a view of giving, not only those who were present at the examination of the witnesses, but also those who were absent, an opportunity of judging how far the evidence bore out the allegations in the Bill.
The Chairmansaid, that the usual practice in cases of this kind was, to report the Bill as amended to the House, and to bring up the evidence along with it. When that was done, then it was competent for any hon. Member to move, first that the evidence be laid on the Table, and then that it be printed. If the House should be of opinion that the evidence ought to be printed, they must wait till it was printed before a day could be fixed for the third reading of the Bill.
§ Sir Henry Hardinge moved, that the Bill be reported to the House without amendments.
§ On the Chairman putting this question,
Mr. Robert Gordonasked whether there was a clause in the Bill making a provision for Lady Ellenborough?
§ Sir H. Hardingeanswered in the negative.
§ Dr. Phillimoresaid, that it was not customary to introduce such a clause as that the hon. Member alluded to.
§ Mr. Humesaid, that if he had made up his mind on the various points which were suggested by the evidence which had arisen in the course of this investigation, he might be inclined to make no objection to this Motion. But he begged leave to remind the Committee, that it was competent for them to strikeout of this Bill the clause giving the relief which the noble individual prayed for. He thought that it was necessary to report progress, in order to get the evidence printed. Any other course would be like stealing a stage in the progress of the Bill.
§ Sir H. Hardingecame forward to the Table with great warmth, and striking it forcibly, expressed his surprise at hearing any hon. Member talk about stages in a bill of this description. To use any unnecessary delay in passing this Bill, after it had been sifted in so unusual—he might almost say, in so unprecedented—a way, would be hurting the feelings and trifling with the honour of both the noble families who were interested in its progress. He did not mean to blame the course which the examination had taken: he was highly satisfied with the part which the relatives of Lady Ellenborough had taken in the course of it: but still, recollecting the peculiar constitution of that House, its popular construction, and its incompetency to examine witnesses upon oath, he was convinced that it was not proper to let a Bill like the present hang in its progress through it. They ought, therefore, to report this Bill without amendment to the House: and if there was any part of it to which the hon. member for Montrose was inclined to object, he could move to strike it out upon the motion for its third reading.
§ Mr. Humeassured the Committee that he had no wish to hurt the feelings, or to trifle with the honour, of cither of the noble parties who were interested in the progress of this Bill. He had stated yesterday, that when he entered the House he had not the slightest acquaintance with any of the circumstances connected with the present case. He had no previous intention of taking any part in it. The course which he had pursued he had taken almost involuntarily, in consequence of 1130 facts which had transpired in the course of the examination of the different witnesses. The gallant officer need not express his surprise at the course which he had felt it to be his duty to pursue, though his manner seemed to indicate that he thought offence was willingly and intentionally given to the noble parties who were then before the House. If the gallant officer entertained such an opinion he was sorry for it; for the gallant officer did not do him justice. Feelings of delicacy, however, upon the matter must not induce the Commons to overlook the great public considerations which were connected with the Bill, now that it was regularly brought before them; and therefore he contended that they ought to see the evidence printed before they proceeded further in their legislation upon it.
The Chancellor of the Exchequerthought that this discussion was quite unnecessary, as the question had been already decided, that the bill should be reported to the House. [Cries of "No."]
The Chairmansaid, that he had put the question, and that he understood it to have been carried; but, as there appeared to be some doubt upon the subject, the best plan which he could follow would be to put the question again. On his doing so,
§ Mr. Tennysonsaid, that he rose to express his concurrence in the feelings which had been so properly expressed by his hon. friend, the member for Aberdeen. He came into the House yesterday in complete ignorance of the circumstances of this case: but owing to the facts which were then elicited from the various witnesses, he felt it to be his duty to take a part in the investigation. He hoped that he had quite as much delicacy towards the noble parties implicated in this transaction as the gallant officer had; but he could not lose sight of the singular fact, that there had been no investigation into the circumstances of this case in a Court of Common Law, and that it was an unprecedented occurrence that a Divorce Bill should come under their consideration without its resting upon a previous verdict, with damages in favour of the applicant. That occurrence devolved upon the House a most serious and important duty. It bound them to institute a severe and rigorous inquiry into the whole transaction. He did not mean to blame Lord Ellenborough for not instituting such an inquiry, it was 1131 perhaps out of his power to do so; but it was not out of the power of the House, and being within its power, it ought to be instituted. He had felt it necessary to say this much in defence of his own conduct, for if his hon. friend the member for Aberdeen was to blame in this transaction, so too was he.
The Chancellor of the Exchequerwas sure that nothing was farther from the intention of his right hon. and gallant friend than to impute improper motives to any of the hon. Members who had taken part in this investigation. He was quite willing to admit that, as there was no opposing party to this Bill, it became a duty incumbent upon the House to see that there were the ordinary circumstances deemed necessary to justify a legislative measure of this description. The hon. Gentleman opposite had told them that it was unprecedented to introduce a Bill of this nature into the House unsupported by the verdict of a jury. He believed that the rule in these cases was, that the record of such a verdict should be produced, or that good reason should be shown why it was not. Last year there was a case of precisely the same sort with the present, and that arose from the party against whom the action for damages should have been brought having left England, as in this case, before it was possible to serve him with the necessary process. No one appeared upon that occasion to show cause against the Bill, and it passed accordingly. With respect to the Bill before them, he knew no more of the transaction than hon. Members opposite till he came into the House yesterday. He had interposed upon this occasion, because he was quite certain that his right hon. friend had no wish to cast any imputations upon others.
§ Sir H. Hardingeobserved, that in what he had said when he last addressed the Committee, he had no intention to cast any imputation upon hon. Members. He had cast no imputation upon the mode of examination, though it was unusual; indeed he should have been glad if it had been carried further; for the further it was carried, the more honourable would the conduct of Lord Ellenborough appear. He had only complained that the hon. member for Aberdeen had proposed a delay, which in his opinion was quite unnecessary.
§ Sir C. Wetherellcommenced his obser- 1132 vations by stating, that his right hon. friend (the Chancellor of the Exchequer) was quite correct in stating that this Bill was not the first Divorce Bill which had been introduced into Parliament without resting on the basis of the verdict of the jury. It certainly was not the first case,—it might be the second: if it was not the second, it was, beyond all question, not further down in the list than the third. Letting that point pass, he wished to call the attention of the House to the particular obligation which had devolved upon it, in consequence of its not having the antecedent verdict of a jury in the present instance. In all other cases they had two preliminary measures on which they founded their legislation. The sentence of divorce in the Ecclesiastical courts was the first preliminary; and a verdict in one of the courts of Common Law, awarding damages to the husband, was the second. Now it was obvious, that if one of the delinquent parties—the adulterer, for instance—was out of the kingdom at the time of the first discovery of the adultery, and remained out afterwards, that this second preliminary could not be obtained. One could easily suppose a case in which a delinquent had left England in order to prevent a husband from recovering a verdict against him. One could also suppose a case, in which the delinquent had been induced to leave England in order to prevent any of those disclosures of the husband's conduct from being made, which must come out in case he sought to recover damages in any of our Common Law courts. He did not mean to say that any thing like this had occurred in this particular instance; but still he could not forget that the House laboured in it under this disadvantage—that the Bill having come down to it from the other House without those sufficient guarantees required for the preservation of public morality and justice, it was imperatively called upon to go through that searching inquiry which in ordinary cases was rendered unnecessary by the existence of those important guarantees which he had already named. The scrutiny into the conduct of the husband, as well as into the conduct of the wife, which always took place before a jury on the trial of the action for damages,—that scrutiny, which let in the whole question of collusion, connivance, negligence, and misconduct on the part of the husband,— had not been bad in the present case. The 1133 Bill, therefore, was not accompanied by the ordinary guarantee which the House received as the basis of its legislation on subjects like the present. He was sure that the right hon. and gallant officer, who had seemed to throw blame upon those who bad taken an active part in this critical inquiry [Cries of "No, no; that has been explained."]
§ Sir H. Hardingesaid, he had already disclaimed any such intention.
§ Sir C. WetherellWell, as the gallant officer had been misunderstood, he would not press his observations on that point any further. The gallant officer had said that this inquiry was uncommon, but he seemed to have forgotten that the circumstances which had given rise to it were also uncommon, and that it was precisely on account of the peculiarity of those circumstances that it was necessary to make it. He believed that every Gentleman who then heard him would agree with him, that to add one moment's pain unnecessarily to either of the noble parties to this Bill, was a course which would give quite as much pain to the hon. Member who made such addition, as to the noble parties themselves, and would meet with the severest reprobation and contempt from the House itself. He could not, however, refrain from stating, that though this case came before them labouring under a defect under which no case could labour which came to them based upon the verdict of a jury, it was even now, at the conclusion of the examination of the witnesses, left so naked with respect to the conduct of the husband, as to render it the duty of every member of Parliament to make himself a juror to try that question which, in ordinary cases, was decided by a jury for him. "We are here, Sir," continued Sir C. Wetherell, "as a jury empannelled to try all the circumstances of this case. That is clearly the path of our duty, and I trust that we should not shrink from pursuing it. Participating, as I do most fully, in all the delicacy of feeling for which the right hon. and gallant officer takes to himself so much credit, I must still be permitted to protest against pursuing the course which he has chalked out for us. I beg most particularly to point out to the House that it is its clear, its paramount, its absolute and undeniable duty, to investigate this case fully, freely, fairly and impartially. I am glad that the inquiry has been pushed as far as it has 1134 been in this House; and as I may not have an opportunity of expressing my opinion upon this Bill at a future stage of it, I will take this opportunity of stating, that of the connexion between Lady Ellenborough and Prince Schwartzenberg, I entertain no doubt whatever. With the same freedom of judgment with which I have already expressed myself on other points of this case, I must now express my regret that more extensive and more explicit evidence has not been given of the nature of the relation existing between Lord and Lady Ellenborough previously to her delinquency. I do lament—I repeat it with pain—but I do lament excessively, that fuller and clearer evidence has not been adduced upon that point at our Bar, than that which has been extracted from these witnesses. On the subject of divorce, I beg leave to add, that every man has a right, where an act of adultery is proved against his wife, to obtain a sentence of divorce in the Ecclesiastical courts; not so, however, with respect to a parliamentary divorce. That rests not on the mere proof of an act of adultery: other, and scarcely less important matters, are required to be satisfactorily proved by the individual who applies for it; and one most indispensable ingredient is, the total absence of all neglect, misconduct, connivance, or collusion on the part of the husband, who complains of his wife's adultery. By the Ecclesiastical Law, as laid down by some writers, and by the divine law, as explained by all, adultery does not, of itself, give to the husband the right to marry again; and scarcely more than a hundred years have elapsed since it was first established in this country that a man may, after the commission of adultery by his wife, marry again. All writers on the subject agree, that of itself adultery docs not give any right to parliamentary divorce. To his proof of his wife's adultery, the applicant must add the further proof, that he has not by any act of commission or omission been so far a delinquent as to deserve to forfeit that been (for it is nothing but a boon), and that parliamentary indulgence (for it is nothing but an indulgence from Parliament) which he asks, when he sues for a bill 'to dissolve his marriage with his now wife, and to enable him to marry again.' In all Divorce bills, the question of the good conduct of the husband is as important a consideration as the question of the misconduct of the wife, 1135 Under these circumstances, I hope that I shall not be considered as having protracted this discussion longer than was necessary, in stating my sentiments frankly to the Committee. I have stated my opinion that the act of adultery in this case is fully proved; and I have only now to express my regret once more, that fuller evidence has not been given to us of the nature of the connexion in which these noble individuals lived together previously to the commission of the offence which forms the ground-work of the present Bill.
§ Lord Nugentthought, that as the case was now closed in evidence, every Gentleman who had listened to that evidence would feel that he owed it no. less to his own feelings, than to the honour of the parties implicated, to take the earliest opportunity of stating his opinion as to its effects. He did not regret that the Committee had entered into this investigation; for though he had come into the House in total ignorance of the evidence which was to be laid before it, he now felt himself called upon to declare, that it had left upon his mind, as far as that evidence went, the most satisfactory conviction that not even the shadow of a charge of collusion or misconduct was imputable to Lord Ellenborough. As far, therefore, as his opinion was concerned, he was prepared to give to his Lordship the relief which he now sought, and he trusted that that relief would be given with as little delay as possible.
§ Mr. Humeprotested against being called upon at this period to give any opinion on the last point mentioned by the noble Lord who preceded him. Hearing the evidence as rapidly and as indistinctly as every Member of the House must have heard it, he confessed his inability to give any opinion upon it at that moment. He must read it over before he could pretend to be roaster of its voluminous and contradictory character.
§ The Bill, with the evidence taken before the Committee, was ordered to be Reported.
§ The Speakerhaving resumed the Chair,
§ Sir G. Clerkbrought up the Report, and laid the evidence on the Table of the House.
§ Mr. Humethen moved, that the evidence taken before the Committee on Lord Ellenborough's Divorce Bill should be printed. He was not aware that any objection could be taken to this proposition, 1136 especially as a great part of the evidence had been taken in a very thin House, when there were not forty Members present. As the case would have to be submitted to the House at large, the evidence ought to be made known to every Member. That could only be done by printing it; and he could not imagine that any rational objection could be urged to so reasonable a proposition.
Mr. Warburtonseconded the Motion. He could have wished to have been spared the pain of this investigation; but as it had been commenced, it was necessary, for the sake of public morality, to proceed with it, and to have the evidence printed. He had been in the House last night, and had witnessed the singular series of contradictions which the witnesses for the Bill had given to each other's testimony; and he therefore was of opinion, that unless the question was to be decided by the twenty Members who heard the evidence of last night, and by those twenty Members only, it was indispensable to print the evidence which had been taken by the Committee.
§ Sir Henry Hardingesaid, that in his opinion this was a case which addressed itself particularly to the feelings of the House. As to the point of form, this Motion was clearly in contravention of it: yet if it should be the feeling of the House that the evidence ought to be printed, he would not object to it, even though the delay of printing it would add three or four days of suspense and anguish to the families of the noble Lord and Lady whose interests the Bill affected. He saw no necessity for printing the evidence, but he would not oppose the Motion.
§ Mr. R. Grantdeclared it as his opinion, that in a case of this peculiar importance to the moral welfare of the community, (he House would scarcely perform its duty if it did not order the evidence to be printed. Deprecating the idea of adding the slightest degree of torture and suspense to any party, he must say that not only the most ample and cautious deliberation, but also the appearance of it, was due to themselves, to public morality, to public justice, to the gravity of their proceedings, and to the feelings of the parties concerned and their immediate relations. The want of a verdict in a jury court gave the case a peculiarity which called for more than ordinary circumspection and deliberation.
The Chancellor of the Exchequersaid, 1137 that he did not rise to oppose the general feeling of the House, if the general feeling should be in favour of printing this evidence. He merely rose to state his own private opinion on the Motion. He could not concur with those who thought, that when the House heard witnesses at its Bar stating evidence to it, it could come to a juster conclusion by having that evidence printed. The best judgment, in his opinion, would be formed by those parties who had heard the evidence given, and seen the demeanour of those who gave it — parties who, if they had attended to it, were as capable of forming an opinion upon it at present as they would be after they had read it. That was his own individual feeling on the subject, and, what was more important, it was in strict conformity with the rule observed towards jurors in courts of law. As far as he was individually concerned, he saw no reason for printing this evidence.
§ Mr. Tennysonsaid, that the right hon. Gentleman would be correct in his opinion, if only those who heard the evidence were to vote upon the Bill; but twenty Members alone were present when the evidence was given, and he need not say that a great many more would decide the question. The evidence ought to be printed. Divorce was a remedy out of the reach of the lower classes, and naturally regarded on this account with jealousy by the great body of the people. It ought to be recollected, too, that Lord Ellenborough was a member of that other House whose decision was the only suggestion to precede their judgment. He hoped, therefore, that the right hon. Gentleman would not oppose the printing of the evidence, without which it would be unbecoming in them to give a vote upon the question.
§ Sir Henry Hardingedeclared, in explanation, that his only wish was, to prevent unnecessary exposure, and that more for the sake of the unfortunate lady, whom he had formerly known well, than from any consideration in the remotest degree connected with his Lordship, that he had raised his voice upon the occasion; but if it were the general sense and feeling of the House that this evidence should be printed, he certainly would not oppose it.
Mr. Nicolson Calvertdeclared himself quite satisfied with the evidence, and stated that the sooner the affair was concluded the better it would be for all parties.
Mr. Lennardsaid, his mind was made 1138 up as to the fact of her Ladyship having uniformly received kind treatment from Lord Ellenborough. This was proved by four witnesses—by the brother of his Lordship, by the butler, another servant, and the early friend of Lady Ellenborough, and he did not think it could be established by other or better evidence in a Court of Justice. He was satisfied respecting the criminality of Lady E., and consequently did not deem it necessary to print the evidence; but if such was the general feeling of the House, he had no objection.
§ Mr. Harrison Batleydid not think it would be right for the House to give their decision without having the evidence printed.
§ Mr. Home Drummondobserved, that the House was acting judicially, and thought that in deference to the opinions of many Members, and the dignity of their proceedings, they ought to make these proceedings as judicial as possible. He had no doubt upon the case; but he wished to have the evidence printed.
§ Sir G. Clerksaid, his right hon. friend and he had no objection to the evidence being printed. He could state most broadly, that no friend of Lord Ellenborough's could do otherwise, as far as he was concerned, than wish for a publication of the entire transaction.
§ Sir H. Hardingehad expressed himself most infelicitously if he had given the House to understand that in consideration of his Lordship's interests or feelings he had any objection to having the evidence printed.
§ An Hon. Member declared himself satisfied of her Ladyship's guilt; but regretted that no provision was made for her. He suggested the introduction of a clause which should prevent her from being in the condition of a pauper.
§ Sir G. Clerksaid, that such a clause was never introduced into such Bills.
§ Sir H. Hardinge, as one of the Cotrustees to Lord Ellenborough's marriage settlement, said, that such a provision had been made as had received the approbation of the lady's family.
§ Evidence to be printed.