§ Sir G. Clerk.—Sir, I rise to move the Order of the Day for the third reading of Lord Ellenborough's Divorce Bill.
§ The Order was accordingly read, and the Speaker then put the question that this Bill be now read a third time.
§ Mr. Hume.—Sir, I am not well aware what course I ought exactly to take on the present occasion, because I have two objects in view upon which I still want explanation; one is, to see if further in formation can be afforded to supply the evidence which appears to me to be wanting here; and the other is to reconcile, if it can be reconciled, the contradictory evidence we have upon our minutes respecting this Bill; for as it stands, it certainly does not warrant us in granting the redress which is prayed. If by adjourning the third reading of this Bill, or by any other course which can be suggested by the hon. Gentlemen who have charge of it, we can obtain these objects,—if there can be any mode supplied of filling up the blanks which exist in the evidence,—I am ready to adopt that mode. I will state to the House what I conceive really to be wanting in the case before us. In the first place, it appears to me that not only has the preamble of the Bill not been proved, but it has been disproved by the evidence: so clearly so, indeed, that I apprehend it to be quite impossible we can pass this Bill while such glaring inconsistencies exist upon the face of its averments. The preamble states, that the parties, up to the time when these discoveries were made, were cohabiting together in a state of connubial happiness. Now, we have it from Miss Steele, in a part of her evidence, that this was not the case; and that Lord and Lady Ellenbo- 1340 rough had not cohabited together for months before the time alluded to. They slept in separate beds; and if the evidence of Miss Steele is to go tor any thing, Lord Ellenborough did not cohabit with his lady, as the preamble sets forth. Therefore, with the circumstance of the preamble not being proved, but, on the contrary, as I have before said, disproved, it is impossible we can pass this Bill, while it is charged with such glaring inconsistencies. The House will recollect what was deposed by Miss Steele, the lady to whom Lady Ellenborough is represented to have made what may be called her confession,—the fact of her pregnancy, which, as she said, would soon become visible, and could not be concealed from Lord Ellenborough, This showed they had not cohabited together for some previous time, which was in direct variance with the terms of the preamble of the Bill, which said that their cohabitation, as man and wife, had gone on till, I think, May 1829. Surely this one discrepancy alone ought to dictate an adjournment of the further proceedings in the Bill, to see if sufficient explanation were forthcoming by the means of other evidence. Another part of the preamble states, that by the adultery of the said Janet Elizabeth, Edward Baron Ellenborough had been deprived of the comforts of matrimony. Have we not evidence in the very teeth of this averment, that he had previously, of his own accord, deprived himself of the comforts of matrimony? They had separated themselves from each other's intercourse, apparently by mutual consent, and it was evident that for many months before May, 1829, Lord Ellenborough had of his own accord, I say, withdrawn from the enjoyment of these domestic comforts. These two matters, then, require, as I think, that we should adjourn the third reading of this Bill, to let in, if possible, further explanatory evidence. I do not know whether I have made myself sufficiently understood. If I have, what I wish to ask is, whether either of the hon. Gentlemen opposite think it necessary to ask further time to adduce explanatory evidence to support the two main allegations, which appear to me not only unsupported, but entirely contradicted by the evidence as it now stands. If they do wish to produce fresh evidence, I have no wish to press the subject further at this moment; if they do not, I shall consider 1341 it my duty to state my objections generally to the Bill in its present form, and to show how utterly undeserving of attention the evidence for it appears; and then I shall call upon you to do justice to the public, and prevent such a measure from passing into a law.
§ Sir G. Clerk.—I have no hesitation in informing the hon. member for Montrose, that we have no intention to produce further evidence in support of the preamble of this Bill; and indeed, I believe the hon. Member is himself the only Member of this House who docs not think the evidence already adduced sufficient. He was told the other night, that we had all the servants here, if any hon. Member wished for a further examination of them; but he started no doubt of this kind then, and now his whole objection is, that the parties had not slept together as man and wife for a short period,—a circumstance which, he says, is inconsistent with the preamble of the Bill. I do not see that any such inconsistency is furnished by a temporary arrangement of the nature alluded to, while the parties were, living on terms of affection at that time, under the same roof.
§ Mr. Humesaid, that as they were, it appeared, to have no further evidence, and as the hon. Gentleman saw no inconsistency in the discrepancies which he had stated to him, it only remained for him to proceed in his statement of the reasons why he thought they ought not to pass the Bill, and why Lord Ellenborough was not in a situation to be entitled to the redress which it went to confer. He had already shown that the preamble was notoriously contradicted by the facts stated in evidence. The proof was clear, that he and Lady Ellenborough, instead of living together as man and wife, had been for several months occupying distinct apartments, and living as it were separate. The preamble avers that Lord Ellenborough has, by his wife's act, lost the comforts of matrimony, and therefore he hopes Parliament will grant him the relief of this Bill. It is proved most decidedly, that he had not been in the possession of the comforts of which he spoke, and that could be shown by the evidence of the letter marked "Saturday night," without date or post-mark, but which must be supposed to have been written about the time of the separation, and in that there was nothing to show his wife's affections 1342 to have been estranged from him, but the contrary. It seemed, then, that it was in May Lord Ellenborough had separated from his lady, for their mutual accommodation. He acquiesced in, if he did not dictate that separation, according to that letter of Saturday night, in which her ladyship says, that, in act she was innocent, and adds these words, "Those feelings of honour which I still retain towards you, make me still acquiesce in your decision." This showed that the separation was imposed upon her by Lord Ellenborough, and if so, what right had he to say that be had been wrongfully deprived of his domestic comforts? Further on in the letter, it is quite manifest that she by no means desires this separation; for she adds, "ought not time, solitude, and change of scene, to be tried by me, to conquer or obliterate sentiments so inimical to our mutual peace?" What did any man gather from these words? They were living as man and wife, under the same roof at least; he dictated her separation,—he made no allegation against her: how then could his Lordship pretend, when he had voluntarily separated from his Lady, that he had been deprived of the comforts of matrimony? According to the evidence, it was plain that Lord Ellenborough could not be deprived of what he had not previously possessed. He believed that an allowance was then fixed on Lady Ellen-borough—that a liberal settlement was then made on her Ladyship, and that the expressions of gratitude in that letter were on account of the liberal settlement. He was satisfied that the settlement was the result of a mutual agreement. If that were the case, there were peculiar circumstances for the consideration of the House. Other individuals, when they came before the House with a claim to have their marriage dissolved by Act of Parliament, and to be released from the wife whose affections they had lost, went first of all into a Court of Law. There the complaints were sifted by a jury of twelve men, and the husband was obliged to satisfy them that his loss was not owing to his own fault, but to the artifices of others, or to the evil disposition and passions of his wife. He was then placed in a situation where all his allegations could be proved, and all the evidence he brought be sifted. He must make out a case that he had been deprived of his wife's society—not that he 1343 had voluntarily relinquished it. In this case, however, there had been no such sifting, and there was no such evidence. The letter to which he had already referred, showed that the comforts of matrimony had been given up by Lord Ellenborough's own act. This was for him a sufficient consideration to show that the Bill ought not to pass. He called on the House to reflect on the situation in which the people of this country would be placed if that House should take upon itself to release individuals from the engagement of matrimony without witnesses being called to show that all the duties of that state had been fulfilled. Under the most favourable circumstances, that House was ill calculated to prosecute such an inquiry. He called on them to consider in what state the people would be placed if they decided such question, when the parties had not been before a jury court. He believed that in the Consistory Court, if the fact of the adultery were proved, the Judge was bound to pronounce for the divorce; but not so at common law. There the individual stated his grievance; but there the evidence was subjected to be cross-examined, and the truth could be elicited, and the party obtained no relief unless he could show that he had done nothing to place himself in the situation for which he sought redress. He was sure that in such a Court it would be found, from the evidence already adduced, that the preamble to the Bill had not been proved. There were many duties which a husband was bound to render to his wife, and which a court was bound to exact. In this country the faults of a woman were visited with a severe punishment—she was banished for one fault from society—but the faults of the husband were overlooked. He did not say how far that was good or had; but it was not equitable or just, perhaps, that the woman should be so treated. He trusted that when females were thus exposed to what he might call a hostile inquisition, they would always find, as they ought to find, protectors. It was the business of the husband to take care that his wife had not access to evil companions, and to protect her against moral contagion. What was the situation of Lord Ellenborough, and his conduct in these respects? Lord Ellenborough was forty-two years of age when he married his lady, a young and innocent woman, who had never been beyond her father's threshold, and who was, 1344 when she was married, only seventeen years of age, or a mere child. His Lordship's experience, previously acquired in the marriage state, should have made him take care of the almost infant mind intrusted to his keeping, and he should have guarded her carefully against the evils which necessarily beset a young person when first introduced into the gay society of London. Had Lord Ellenborough performed this duty? He had received her innocent from her father's house, and might have made her a faithful wife. Had he employed any care to guard her against the dangers to which she was exposed? Had Lord Ellenborough behaved towards his lady like a good and faithful husband? What evidence was there that he had? What proof was there of his affection? The brother of the noble Lord had been called, a gentleman who was, he believed, in the Army or the Navy, and who at any rate was abroad for a considerable period; this gentleman deposed, that he had been intimate with the family of Lord and Lady Ellenborough from the time of the marriage up to the month of March 1827: then he went abroad, and from March 1827, to March 1829, there was no evidence whatever of the terms on which the parties had lived: except some incidental admissions of Miss Steele, no one had been brought during all that interval, or between March 1827, and March 1829, to prove what had been the conduct of Lord Ellenborough. This officer returned in March 1829, and he is asked—"Then, after your return from the Mediterranean again, were you on terms of intimacy with Lord and Lady Ellenborough?—I was. Did it then appear to you that they were living on terms of affection?—Yes, it did. Did you observe any difference from those terms on which they were living at the time you left England?—No, I did not." Yet at this very time, continued the hon. Member, when this witness described them as living affectionately together, it was proved in evidence that they did not cohabit. It was proved by Miss Steele, that for many months before this period, Lord and Lady Ellenborough had not been on good terms. There were the outward bearing and appearances of affection at the very time they did not sleep together. It was a mockery to call that evidence to show how these parties had lived together. Was there no individual of all the noble Lord's acquaintance and friends who could be 1345 brought forward to fill up the gap between these two periods? Was there nobody to show that Lord Ellenborough did not visit Brighton, and there pass many months together without the company of Lady Ellenborough? Why was not Lord Ellenborough allowed to make all that clear, and exhibit proofs that Lady Ellenborough had no good reason for withdrawing herself from his protection? Wanting that evidence, was he not warranted in entertaining a strong suspicion that. Lady Ellenborough had withdrawn herself from some strong and efficient reason? It appeared by the answer of Miss Steele to a question from an hon. Member, that it was at the request of Lady Ellenborough that she had ceased to cohabit with Lord Ellenborough. It was extraordinary that not one person of Lord Ellenborough's acquaintance, but a soldier, who was for some time absent from England, could be brought to prove on what terms the two parties lived. If that were not a mockery of evidence, he did not know what was. The House was bound not to pass the Bill without more proof on this part of the case; and if it were postponed, it would be possible to get such evidence as ought to be produced. It was proved, indeed, that Lady Ellen-borough had been much neglected, and it was most probable that all the subsequent faults had been the consequence of that neglect. He had already stated, that Lady Ellen borough was seventeen years of age when she was married, and that Lord Ellenborough was advanced in life; he had experience, and ought to have warned her against the snares which at her tender years she was likely, without great attention, to fall into. What was his course of conduct? He trusted her entirely into her own keeping. It was said that his official duties occupied him very much, but was it possible that he should not know for three years what company his wife kept—that for three years she should be daily driving about, and he know nothing of her proceedings? It appeared that the acts on the part of her Ladyship had been noticed; she had been advertised that she was doing wrong, and the evil had not taken place without warning. The mentor, Miss Steele, who had superintended Lady Ellenborough's education, had stated that her Ladyship had been guilty of some levities; but when pressed, she could recollect none but riding out. And what was a young lady to do who 1346 was neglected—was she to stay at home all day, and from one month's end to another? In that there was no indiscretion. The witness had contradicted her own evidence. She had been asked about some companions of Lady Ellenborough's; whom she described as very low, and she was asked, "Can you state that those individuals to whom you objected as improper, were associates in the house on the invitation of Lord Ellenborough or Lady Ellenborough?—That I do not know; they were, of course, introduced by Lord Ellenborough, because they were not her associates when she was Miss Digby. Were the ladies such as were generally received in the society in which Lord Ellenborough moved?—They were. What objections had you, or why did you think their society indiscreet when they moved in the society in which Lord and Lady Ellenborough were?—I think it was one thing to see a person occasionally, and another to be very much in each other's society; and I thought that, by warning Lord Ellenborough, he might be more cautious. Will you try and recollect what warning you gave Lord Ellenborough?—Particularly about some ladies, but I cannot mention names." The witness also stated that the ladies of Lady Ellenborough's family were dissatisfied with Lord Ellenborough, for having introduced his lady to these companions. He would ask, was that, on the part of Lord Ellenborough, the conduct of a prudent man? He had introduced his lady to such dangerous society, that her late governess thought it necessary to warn him against it. What did his Lordship say when he received this warning? Did he remove his lady out of the way? No; he only laughed at it. He did not think the subject worthy of any serious attention. Let the House recollect that Lord Ellenborough was charged with a wife of tender years; that he was a man experienced in the world, and that he had not only neglected her, but introduced her to improper companions not known to her before marriage, and the House would see, that no care had been taken to cherish and protect her character and fame. He called on the House to pause before they assented to the Bill in the absence of all proof as to what the conduct of the noble Lord had been. He did not know whether he was prepared to admit or not, that the case of adultery had been made out. There were certain cir- 1347 cumstances which would warrant that conclusion; but he did not think it was made out by the evidence. He thought, as far as that went, it failed to prove the actual commission of adultery. He differed very much in the conclusion he came to, from reading the evidence, from many persons. There were many things in which he thought Lady Ellenborough much to blame; but what was the cause? Partly it was, that she had been introduced to bad company. She often went abroad, and was often out in public; she rode out with Prince Schwartzenberg; and if the evidence could be believed, she was seen by the servants riding out with the Prince. Would any person, however, say that Lord Ellenborough ought not to have known these things, and particularly after the warning he had received? It was his duty to have ascertained, but he seemed to have been ignorant of his lady's conduct. When a notice was given him, did he make any inquiries? He did not. His Lordship was not blameless; therefore he did not come into Court with clean hands, and his situation was such that he had no right to obtain relief from the House. The evidence that, had been submitted was the most disjointed and contradictory he had ever read. It completely failed, too, to prove that those attentions had been paid by the husband which were due to a wife; and failing to prove that, the husband must bear the blame of her indiscretions, and be held responsible. He would then look at the charge of adultery; and first, the charge relating to Wimbledon, which was said to have occurred, as her Ladyship was going out to dinner, in a close carriage with a gentleman. There was no other proof than that a lady went in a carriage with Prince Schwartzenberg to dine at the Countess Antonio's, at Wimbledon, and there was no proof that the adultery was there committed. It could not be said that adultery was committed at Wimbledon; but would anybody believe that a lady dressed to go out to dinner was then guilty of anything improper, and that under such circumstances adultery took place [A laugh, as if the Members were surprised at Mr. Hume's simplicity]. There was no proof whatever that adultery was then committed. It was proved, perhaps, that Lady Ellen-borough had gone to Wimbledon from Roehampton; that she had left Roehampton, and that she had received a 1348 letter. But did those circumstances prove adultery? She rode out to Highgate and other places, and was that adultery? No; there was an object, however, in bringing together all these cumulative proofs, to distract the attention from the real facts of the case, He disbelieved the conclusion drawn from the circumstance. Then there was the party at Richmond; but why were not the waiter and the other servants called to prove the conduct of Lady Ellenbrough? He would say, that all these circumstances were brought together to mislead the judgment; all the trivial and improper pieces of behaviour which could be collected had been brought forward, to conceal the real facts of the case. Had Lady Ellenborough appeared to defend her character, he feared her Counsel would have asked Mr. Freshfield some very different questions. At first the case was accommodated; and had there not been a settlement made, there would have been some recrimination. The whole matter would be changed. He begged the attention of the House to the letter he had already referred to, and that satisfied him that upon the separation a liberal settlement had been made on Lady Ellenborough. But for that, he believed there would have been recrimination on the part of Lady Ellenborough's family [No, no]. There was something said of suing. The question was, why did Lady Ellenborough withdraw herself from Lord Ellenborough? Ladies were not in the habit of doing that without some sufficient and strong reason. In this country, in general, females did not withdraw themselves from the beds of their husbands. It might not be the case in that fashionable society of which so much had been said, but in general it was the practice of the country for wives not to go away from their husbands. The case might be different among the society of the gentry, but in general it was not the practice. Like Miss Steele, perhaps, he considered many things wrong which in fashionable society wore overlooked. He had disposed of the Wimbledon, and the Highgate, and the Richmond cases, and what was there more? The lady, it was stated, visited Prince Schwartzenberg in Harley-street. There was an unwilling witness, who reminded him of the Non miricordo evidence on a memorable occasion, who remembered nothing—who said something about a flower and a letter, but could not remember at what time of the 1349 year it came. His evidence was contradictory, and he thought it was worth nothing. Then an individual who had seen a lady visit the Prince at 73, Harley-street, whom he had never seen hat four times, and he did not know Lady Ellen-borough. There were also the two individuals, the butler and the footman, who were always up in the drawing-room watching-, when they ought to have been down stairs, and they had seen a lady go to Prince Schwartzenberg's. They said she came from Queen Anne-street; but it had been proved that the carriage only stopped there three or four times, and generally in some other place. But it was remarkable that there was a great difference between the testimony of these witnesses and that of Ann Lewis. She said, that she had seen Lady Ellenborough only once, and that she then came in Prince Schwartzenberg's cabriolet. This evidence, then, related to different persons, and it only proved that ladies went to visit Prince Schwartzenberg. There was next the servant of Mr. Taylor—he said he had seen her go to and fro on foot, while the servants said she never came on foot. The evidence of the boy Carpenter, when attentively considered, could not for a moment be supported, as bearing out the case. It fell completely to the ground, when contrasted with that of the coachman. The boy said, that every body talked of it. The coachman, on the contrary, denied that he ever heard a word about it. Carpenter was asked, if Lord Ellenborough's servants talked about it. He said, constantly. The coachman was asked the same question, and he replied, never. Carpenter said, he often told the coachman that Prince Schwartzenberg rode with Lady Ellenborough. The coachman, on the contrary, denied that he ever heard a word on the subject, or that the boy ever told him anything about Prince Schwartzenberg. The whole of this part of the evidence was, in short, so palpably contradictory, that no man could place the slightest reliance on it. Then they had the evidence of one who talked a great deal about liveries, and about knowing the boy by the facings of his coat. But as little dependence could be placed on it as upon the transactions detailed by the coachman and the groom; for the liveries might have been assumed merely to commit a fraud, and to elude suspicion. He came now to the story of the Brighton affair; and he really must say, that he never re- 1350 collected an act of criminal intercourse supported by such a clumsy contrivance; and that the whole of the acts, separately and together, were incapable of sustaining a bill of this kind. What! was it consistent and natural that a waiter should come up to a lady of the rank and station of Lady Ellenborough, and say to her in the morning, after the detection was said to have taken place, "I know what you have been about last night;" and that Lady Ellenborough should say, "Pray don't tell of me, and there is, 20l. for you." Then, this fellow Walton said, he received the money, and that he gave a part of it to his fellow-waiter, Hepple. Hepple, on the contrary, denied that he received any sum for the purpose stated, but admitted that he did receive 5l. for attendance on Lord Ellenborough's child, which was the usual and customary allowance; the boy having remained there for a number of months. Hepple was then asked if he was sure that Walton did not at the time he gave it tell him it was to hold his tongue; a circumstance he positively denied; and he also denied that he had any conversation on the subject until long after. Looking, then, at these plain and positive contradictions in the testimony of all the witnesses, and disposing of them, therefore, as of no importance to the case, it appeared that there was not a single individual upon whose evidence the Bill was to be supported, except Miss Steele; and upon her evidence, even taking it to be strictly correct, he would appeal to them to reject the Bill, even if they thought that Lord Ellenborough was justified in coming before them to claim redress. But what was the evidence of Miss Steele? She had been the governess of Lady Ellenborough, and perceiving the imprudence which characterised the conduct of both parties, she said to Lord Ellenborough, "Your wife is young; I think you allow her to go too much out without you. Pray put an end to her associating with persons of the character I see around her. I have heard they are profligate. Do take care of what you are about." What was Lord Ellen-borough's reply? Why he laughed, as much as to say, it answers my purpose, let it go on; I know to what it may lead. This was the course pursued by Lord Ellenborough; and if adultery were the consequence, it was evident that he lent himself to it, by that want of due atten- 1351 tion which he was in duty and in justice bound to afford his young and beautiful wife. If such then be the case, in what situation was the House placed? It was called on to do justice between Lord and Lady Ellenborough; it was also called on to do justice to the public. They were to look at the case as one in which the morals of the public were deeply interested. They were sitting in judgment upon the case of Lord and Lady Ellenborough: they were also sitting there to do an act of justice to the whole community; and they were bound to teach all who came before them for relief by a Divorce Bill this salutary lesson—that unless they came there with clean hands—unless they had performed the obligations laid on them by the marriage contract—unless they had watched over their wives with care, and afforded them all necessary protection and assistance—unless they had guarded them against the allurements of society, and the attractions of that society which is called fashionable, they must not expect to be relieved from those bands which their own conduct had rendered galling and disagreeable to them. The step they were about to take was one of the utmost importance. They were called on to teach the higher classes that they were not to be allowed to go on in their career of profligacy and folly, reckless—for that was the word—of consequences. That they were not to be allowed to spread the con -lamination of their vices amongst all the other classes in the country. He was sure that if the House pursued the course he recommended, and a man and his wife should hereafter behave in the manner which the evidence exhibited in the pie-sent instance, they would at least not presume to come to that House, and ask for relief from the consequences of their own misconduct. It was their duty to stamp by their vote their opinion of a case in which—although he would not say there was collusion, because he was not able to prove it, although it strongly approximated to collusion—yet in which there was so much negligence and want of attention as to justify the House in refusing the relief which was sought. He repeated now, that he wished for further evidence, because, if Lord Ellenborough wished to appear before them with clean hands, it was necessary they should have that evidence. The hon. Member had, however, declared that no further evidence was to be produced; and 1352 he, therefore, had no alternative left him but to give his vote for the rejection of the Bill, and thereby teach all fashionable society, as well as Lord Ellenborough, that if they adopted such a course of proceeding, they were not to look for a relief of that description from Parliament. He opposed the Bill, because he owed a duty to society; and because it was the only course the friends of that Bill had left to him.
§ Sir Henry Hardinge, Lord Nugent, and two or three other Members rose together, but,
§ Sir Henry Hardingepersevered, and began by observing, that under any other circumstances he should be happy to allow any other member to address the House; but under the peculiar circumstances of the present case, he must beg leave to make a few observations on the speech of the hon. member for Montrose. He thanked that hon. Member for the opportunity he had afforded him of replying to the charges brought against the conduct of his noble friend; but he must, at the same time, say, that he never recollected to have heard a more clumsy perversion of reasoning, or a more exaggerated statement of facts; and if he pretended in this matter to fulfil a judicial function, he confessed he had never met with or heard of any case in which the evidence had been summed up in a more unfair and perverted manner. He did not complain of the examination of the witnesses. He was glad, as far as his noble friend's character was concerned, that the evidence had been sifted so much; and that, as the honour and happiness of his noble friend were at stake, the House would have an opportunity of fairly deciding on the merits of the case. The hon. member for Montrose, in his disjointed and inefficient examination of the evidence, had dwelt much on the prevarications of Lady Ellenborough's groom; but the House would recollect that he was the witness for the guilty party, and that he was engaged in their interest. Mr. Freshfield had proved that Carpenter was exclusively the groom of Lady Ellenborough, and a most unwilling witness; and that the moment the adultery was discovered, and the separation took place, he was dismissed from Lord Ellenborough's service. All his evidence, therefore, must be taken as coming from a person who was an unwilling witness for Lord Ellenborough, and only brought forward in order to prove 1353 the continual visits to Harley-street. If, therefore, prevarications respecting the conversation with the coachman were ten times worse than they were, it would not disprove the fact that he was in the daily habit of attending his mistress to Harley-street. Then with respect to the evidence of Walton and Hepple. If a man were so vile as to go to a lady and make the demands he had done, he would be rogue enough to cheat his partner of his portion of the spoil. Did that, however, disprove the fact that adultery had been committed? But then look at the evidence of Miss Steele on this point. The waiters spoke to the commission of the adultery in October; Lady Ellenborough, Miss Steele says, | confessed her guilt with Prince Schwartzenberg, and disclosed the facts connected with the Brighton affair in May. All, therefore, confirmed the fact of the adultery; and he was confident that if any man, having a sense of what evidence was—although he feared that the hon. member for Montrose had no sense of what evidence was—but no man, having such a sense, could fail to be satisfied on this point. The question was, were they to pass the Bill or not? He agreed that if Lord Ellenborough had been proved negligent of his duty towards his wife, or to have been deficient in the kindness due from a husband, he would not be entitled to the relief which he prayed. But did any part of the evidence show Lord Ellenborough to have been a negligent husband? On the contrary, all the witnesses negatived such a supposition. Every witness deposed to the good understanding which subsisted between them. At any other time, or on any other subject, he should have felt extremely reluctant to demand so much of the attention of the House; but when the character of his noble friend was assailed in so unfair and extraordinary a manner, and with such exaggerated statements, he felt bound to attempt to relieve it from the effects of the misquotations and misstatements of the hon. member for Montrose; and he should, therefore, take leave to allude to some of the evidence on this subject. Mr. Law, brother to Lord Ellenborough, states, that they always displayed towards each other the greatest possible affection. In page 36 of the printed report of the evidence, Miss Steele is asked, "After Lord and Lady Ellen-borough's marriage, had you an opportunity of seeing them together?—Very 1354 often. On what terms did they live?—Very happily. Did you live on such terms of intimacy and friendship with them as to be enabled to form an opinion upon that point?—I passed several days with them together." Again, she is asked, "Are you quite sure that Lady Ellenborough never made any complaint to you of Lord Ellenborough's conduct to her?— I am quite certain she never did. After the separation which took place between Lord and Lady Ellenborough, did Lady Ellenborough ever express herself in terms of, gratitude at the conduct of Lord Ellenborough towards her?—Often. Are you aware that the family of Lady Ellenborough expressed themselves satisfied with the manner in which Lord Ellenborough had conducted himself on the occasion of the separation?—Very much satisfied." Now, after the manner in which this lady had given her evidence—a manner which impressed every one with the conviction of her being thoroughly worthy of belief—it might at the same time be observed, that she came to the bar of that House from the family of Lady Andover, the mother of Lady Ellenborough; and he might add, that if the House thought it necessary, every member of that family would come down to that House and express their opinions of the conduct of Lord Ellenborough. What was the evidence of Lord Ellenborough's butler? He was asked, "Was the conduct of Lord Ellenborough invariably kind?—Yes, it was invariably kind to Lady Ellenborough. Should you say that he was as indulgent a husband to Lady Ellenborough as you had ever seen in the different families you have lived in?—As much so or more so than I have ever seen." The hon. Member then referred to a letter addressed by Lady Ellenborough to Lord Ellenborough, from Brighton, on the 6th or 7th February, in which she says, "Good night, clearest;" and he also referred to the two letters written after the separation, in order to show the good terms on which Lord and Lady Ellenborough lived up to the latest moment. He also observed, that he had at that moment before him a letter written by Lady Digby to Lord Ellenborough, in which she expressed her gratitude to him for the kind and liberal conduct he had displayed towards her daughter. This letter, if it was desired, he would read to the House [No, no]. The next point he would advert to was the charge of crimi- 1355 nality against Lord Ellenborough, for having allowed her Ladyship to associate with persons who had been the cause of the errors into which she had fallen. Now, a more unjust accusation than that could not well be made, after reading the evidence. Miss Steele, who deposed to that part of the case, admitted that her principles were considered rather strict, and that her ideas might be thought scrupulous. In considering that portion of the evidence, they ought also to recollect that Miss Steele, although a highly respectable and intelligent woman, did not move in that class of society which enabled her to form a very adequate judgment of the manners and habits of those persons against whom she warned Lord Ellenborough. He would ask, however, if this lady had felt it necessary to repeat the caution which she had given: did she often warn Lord Ellenborough? No, she merely mentioned it once; and he would here repeat, that the hon. member for Montrose, in alluding to that as well as many other parts of the case, had perverted the meaning of the evidence, and not done justice to his judicial character. He would read a part of the evidence, and the answers, and leave the House to draw their own conclusions: "You spoke of Lord Ellenborough having laughed when you gave advice respecting Lady Ellenborough's associates; did you understand that laugh to imply scorn for such proper advice, or unlimited confidence in Lady Ellenborough?—Unlimited confidence in Lady Ellenborough, certainly." He mentioned this to show, that if Lord Ellenborough laughed, there was no bad animus in, such an expression. The lady was then asked, "You have stated that you knew Lord Ellenborough disapproved of Lady Ellenborough visiting certain individuals; how did you know that; had you any conversation with Lord Ellenborough on that subject?—I had; but Lady Ellenborough herself told me that Lord Ellenborough had repeatedly begged her not to do it. Was it from Lord or Lady Ellenborough you knew that?—From both. Was that subsequent to the autumn of 1828?—Yes. Can you state on what occasion Lord Ellenborough expressed that to you?—It was in the month of July. July, in what year?—1829. That was after the separation?—It was after the separation." This proved that Lord Ellenborough did disapprove of the associates of Lady Ellenborough, and that 1356 the continuance of the connection, although made a charge against Lord Ellenborough, was not attributable to any of those bad motives which the insinuations of the hon. member for Montrose had endeavoured to put upon it. The next charge was, that Lord Ellenborough was not ignorant of the misconduct of his wife, because it was a matter of public notoriety. He apprehended, however, that this notoriety was confined to a very particular circle; and that even up to the very time of the separation on account of the adultery, he did not know of the intimacy of Lady Ellenborough with Prince Schwartzenberg. He might call full half a dozen of the Members of that House to prove that the Prince, and Lady Ellenborough did not seem to know each other when Lord Ellenborough was in company; and although the coachman declared that Prince Schwartzenberg frequently handed her to her carriage at the opera, and other places, yet he never did so when Lord Ellenborough was present. Lord Ellenborough had no caution—he was too confiding—too unsuspicious—his sense of honour was too high to induce him to doubt the purity of the conduct of his wife. He was satisfied that her principles would preserve her from error, and he did not conceive it necessary to inquire into the nature of every engagement she formed during the day, or be a spy on his wife's conduct. If he had heard any reports unfavourable to his wife's character, he would undoubtedly have inquired into them. But was it surprising that he had not heard any, when Miss Steele, who had lady Ellenborough's character so much at heart, and had warned Lord Ellenborough against some of her associates, was not aware of the intimacy existing between her and Prince Schwartzenberg? Great pains had been taken to show that Lord Ellenborough was aware of his wife's intimacy with Prince Sehwartzenberg, but he referred to the evidence of Thomas Kane, who stated that the Prince had never been in his Lordship's house. [The gallant Officer again referred to the evidence of Miss Steele to prove her ignorance of intimacy existing between Lady Ellenborough and the Prince previous to her separation from her husband.] Here was a woman, the gallant Officer continued, of great respectability and virtue, who had educated Lady Ellenborough, ignorant of her connexion with Prince Schwartzenberg; and, as the hus- 1357 band was always the last person to hear of his wrongs, was it not natural to infer that Lord Ellenborough was also unacquainted with that guilty intimacy? The hon. member for Aberdeen had touched on a point, to which he confessed he did not attach much importance; but as the hon. Member had introduced it, he would only observe, that the non-cohabitation of Lord Ellenborough with his wife (if a proof of want of affection between the parties) only extended, according to the evidence, to a period of three or four months at the most. The House would recollect that it was not in the habit of examining into these points, before passing bills of the present description. It would be remembered that Mr. Cazalet applied last year for a bill of divorce. He had been absent in India, and while he was away his wife had been guilty of adultery. He did not cohabit with his wife for one year after his return, she managing to give him excuses, which were so satisfactory as gave no reason to suspect her of guilt; at length a female friend of the lady expostulated with her on the impropriety of not cohabiting with her husband, and the guilty woman, by far the more decent of the two, replied, "It is too unnatural; I cannot do it; I am guilty. I will not add any thing more to my guilt." The House passed that bill of divorce, and would the House not. pass the present one, because non-cohabitation had existed for three months? The doctrine was so monstrous, that it only required the hon. Member to broach it, in order to have it scouted out of the House with all the contempt it. deserved. It was plain that Lord Ellenborough was the dupe of the art of a guilty woman; yet he was disposed to speak of the lady with all possible respect consistently with his duty to Lord Ellenborough. He must explain why he stood forward as the vindicator of the conduct of Lord Ellenborough, who had been so unjustly and unfairly attacked. The reason of his doing so was, because he was connected with Lord Ellenborough by a former marriage. He had known that noble Lord for fifteen years, and on every occasion he had found him to be a man of honour and integrity, and possessed of a kind heart. If it had been thought necessary to make any ostentatious display of his Lordship's merit, he should have insisted on being examined himself at the Bar of that House on oath, if the forms of Parliament would have allowed 1358 it, as to Lord Ellenborough's conduct to. his former wife. That conduct had been, such as to secure the esteem of Lord Londonderry's family; and he could say, from his own knowledge, having lived two or three months with Lord Ellenborough, that a more exemplary, kind, and indulgent husband never breathed. He could state another fact (though he was almost ashamed to occupy the time of the House on the subject) to vindicate his Lordship from such false imputations as had been cast upon him. Up to the time of his Lordship's marriage with Miss Digby, he continued to be respected and esteemed by the whole of Lord Londonderry's family; and the Dowager Marchioness of Londonderry wrote a letter to Lady Andover, though not acquainted with her, congratulating her on the marriage her daughter was about to enter into, because Lord Ellenborough had been for five years a most exemplary and excellent husband to a daughter of hers. These were facts which ought to neutralize any of the objections of the hon. member for Aberdeen, some of whose morality and decency was so very coarse, that he wondered where the hon. Member could have picked it up. When English women were to be described as never refusing the attentions of their husbands—attentions such as decency would not allow him to mention—he never could allow such a description to be a just one. The hon. member for Breconshire, who was also connected by marriage with Lord Ellenborough, could speak as to the terms of affection in which his Lordship and his wife lived together. From 1824 to March, 1829, he was in the habit of visiting Lord Ellenborough at Rochampton, and he could only repeat, that his Lordship's behaviour was that of a most affectionate and indulgent husband. If these were facts, and he was ready to maintain that they were, he was fully borne out in saying, that Lord Ellenborough had been assailed, calumniated, and vilified in a more shameful manner than any man had ever been who was unfortunately compelled to come before that House on such an errand. It was obviously easy for a man who was immersed in public business to become the dupe of an artful and cunning man, and to have, as in this case, his wife allured from her home to the arms of a seducer. It was not in the power of a husband so situated, let his vigilance be ever so great, to prevent the possibility of 1359 such an occurrence. But this he would say for himself, that he would prefer the misfortune of being a dupe of that description to the disgrace of being a spy. But it was said there had been connivance on the part of Lord Ellenborough. If it were possible to suppose that a man of rank, of station, of virtue, and of character, could so far demean himself as to lead the way, and act the pander to the dishonour of his wife, the mother of his only child, then indeed they might give credit to this foul assertion, and afford their sanction to a suspicion so monstrous and so contradictory to the whole tenour of that noble Lord's life. Lord Ellenborough had been before the public now for a period of twenty years, and there was not a single ungentlemanly or ungenerous act of his public conduct during that time which argued on his part a want of integrity, of honour, or of principle. He had been for that time upon the stage of public life, and he would triumphantly ask, was there a single act of his which countenanced so base a suspicion,—so foul and so false an accusation? No, his conduct had been quite the reverse, and there had been nothing whatever in any part of it to give countenance in the slightest degree to this monstrous lie, which he (Sir H. Hardinge) threw back with the scorn it deserved upon its discreditable authors. But it was said that there was collusion between the parties in this case, because Lady Ellenborough confessed her guilt; and because, in doing so, she did not wish to inflict still greater wrong upon her injured husband, by attempting to prevent his obtaining this divorce. Was it collusion on the part of a wife who had thus wronged her husband, to feel sorrow after she had done so—a sorrow which there was every reason to suppose this unfortunate lady did feel, and actuated by that feeling" to abstain from taking any steps to prevent her husband from obtaining that release which was now sought for? Could that be denominated collusion? Could it be said to be a proof of collusion on the part of that brave and gallant officer, Admiral Digby, if he, feeling that Lord Ellenborough had acted kindly and honourably towards his daughter, should abstain from offering any opposition to his getting a divorce? Was it not, on the contrary, more the part of an honourable and high-minded man, under such circumstances, rather to desire to do 1360 justice to Lord Ellenborough than to seek to impede him from obtaining that relief and redress which he now sought? But they had been told that Lord Ellenborough should have looked more narrowly after his wife. Were they to be told that in Great Britain a husband should be a spy upon the actions of his wife? He saw many hon. Members around him who, during the Session of Parliament, were frequently obliged to be absent from their homes from eleven o'clock in the day until past twelve o'clock at night. How could a man, under such circumstances, maintain a close and continued observation on all his wife's actions and conduct throughout the day? How was it possible for any hon. Member, who had to attend to the committees and to the business of that House, to maintain that incessant watch upon his wife which the hon. Member for Aberdeen had spoken of as indispensably necessary on the part of a husband? This he would say, that the hon. member for Aberdeen was the last man in that House who should have spoken of the necessity of such continual observation, for his own absence from home was perhaps more constant than that of any hon. Gentleman present. Suppose alms-band a lawyer, a physician, or a military man, and that his wife should avail herself of the opportunities which his necessary attention to his professional duties should afford her to bring disgrace upon herself and dishonour upon him, was he on that account to be debarred from that relief which Lord Ellenborough sought in the present instance? Although the most satisfactory evidence should be given of her criminality, was he to be deprived of all redress because it had not been in his power to prevent it? A doctrine so monstrous and so unjust only required to be shown up to the House to be scouted as it deserved. The hon. member for Aberdeen might consider that jealousy on the part of the husband was a proper kind of vigilance to be exercised by him in reference to the actions and conduct of his wife; but for himself he would confess that he entertained no such sentiments. He trusted that such sentiments would never gain ground in this country. What would be the result if they should be eternally employed in looking after their wives, and if their almost sole occupation should be a silent and jealous watching of their actions and conduct? The result 1361 would be to pervert English society in the highest degree, and to convert an English family into a Turkish harem. Me would declare that he would never be a party to such principles,—he never would be the advocate of such prying watchfulness and jealous caution on the part of an English gentleman towards his wife. The proper way for an English gentleman to act towards his wife, was to treat her with confidence and affection, and with a just reliance upon her innocence and virtue. That was the way in which he should act—that was the caution which an English gentleman should exercise towards a virtuous English wife; and if it were proved that he had acted so, and that she should fall, the House would not surely refuse him relief upon that account? It was true, that he (Sir H. Hardinge) felt strongly on this subject—he felt strongly and warmly for an honourable man, left in an unprotected state, and assailed in the most dreadful manner. If he never stood in the relation in which he did stand towards Lord Ellenborough, he should have felt as strongly for a man who had been so unjustly assailed, and in such an unprecedented manner, particularly out of doors. It was not for him, upon this occasion, to grapple with the vile and unfounded imputations which had been cast upon the noble Lord, or to attempt to remove or dispel all the shameful reports which had been so industriously circulated against him. He should but disgust the House by entering into a refutation of such groundless charges; but he would ask hon. Members, was there a single act in the whole public life of the noble Lord, for the last twenty years, to countenance or support the charges that had been brought against him? Evidence had been produced to prove that adultery had been committed by this unfortunate lady,—an adultery with Prince Schwartzenberg; evidence had been adduced to disprove the charge of neglect on the part of Lord Ellenborough towards his wife, and to show that he had been, on the contrary, a kind, considerate, and attentive husband; and he was sure that hon. Members, laying aside every thing like personal or political feeling, would now decide judicially upon this case, with justice and impartiality, and afford to Lord Ellenborough that relief to which he was so fairly entitled. In conclusion he would only say, if in defending that noble Lord he had shown any un- 1362 becoming warmth, he should be willing to atone for it to the House.
§ Dr. Phillimoresaid, he trusted the House would bear with him, while he endeavoured, as shortly as he could, to express the opinions which he entertained upon this case, and in reference to this particular subject. His hon. and gallant friend who had just addressed the House had called upon them to consider this case in their judicial capacity, and he had entreated hon. Members to divest themselves of all political and party feeling in pronouncing judgment upon it. He could assure his hon. and gallant friend, that from the commencement of this investigation he considered it strictly in his judicial capacity, and that he had given to the case, as it proceeded, all the attention which it was in his power to bestow upon it. Since he had had the honour of a seat in that House, there had been a variety of cases of this description accidentally discussed there, but as it had so happened that he had been employed in the courts below, either for one party or the other in those cases, he had uniformly abstained from offering an opinion either on the one side or the other, when the case came under the consideration of the House. But in this case, he had not been employed either by one party or the other, and he approached the consideration of it, and the circumstances attached to it, with a mind divested of every species of bias or preconceived impressions. In the course of the discussions upon this case, a complaint had been made, and it had been reiterated this evening by the gallant officer opposite, that an unprecedented course had been adopted with respect to this Bill. Now, he would confess, looking at the manner in which this measure had been conducted, that it had been such as to justify what might be considered a devious, but which was certainly a constitutional, course on the part of the House in respect to the Bill. It was to be observed, in the first instance, that in the proceedings which took place in the courts below, there had been no cross examination of any witnesses. It was further observable, that no proceedings had been taken in this case in a Court of Common Law; no verdict had been obtained; and these were circumstances which appeared to him such as called upon the House to exercise more than usual caution and vigilance in passing this Bill, Other circumstances also had oc- 1363 curred in the progress of this Bill that were calculated to excite the vigilant attention of this House. A general impression had gone forth, that the House of Lords had not done its duty in the examination of the witnesses produced in this case. Whether that impression were correct or not, it increased the obligation upon that House to do its duty, and in the discharge of it to exercise additional caution and circumspection. There was another circumstance—namely, that there had been no counsel employed for the party accused; and it was well known that in every court of justice under such circumstances, the court, let it he what court it might be, was entitled to give the most indulgent consideration and the most favourable construction to the conduct and acts of an undefended party who was proceeded against. The hon. member for Aberdeen had spoken of the important obligations of the marriage contract. It was undoubtedly a most important engagement—the most important one, indeed, which one individual could contract with another; and the maintenance of which was not of more importance to the contracting parties themselves, and to the issue of the marriage, than it was to the general interests of society, the happiness and moral order of which was so deeply involved in it. Now, in viewing this question, in reference to the sacred nature of the marriage contract, there were public considerations which attached to a bill of this sort that were well worthy of regard and attention. He should inquire, in the first instance, how was it that this case stood? By the decree of the Ecclesiastical Court, Lord Ellen-borough had been relieved from all obligation of cohabiting with his wife, and from all possibility of having a spurious issue. Having been relieved from so much by the ordinary course of law, this Bill was introduced; it was a Bill of Pains and Penalties against Lady Ellenborough; the object of it was, to enable Lord Ellenborough to marry again. Now the question was, how was marriage viewed by the law of the land? Marriage was looked upon by the law of this country as an indissoluble contract; and though great individual hardships might, in particular instances, arise from viewing it in that light, he believed that experience showed that the happiness of the married life was best promoted by considering mar- 1364 riage, generally speaking, as an indissoluble contract. There was only one case in which the law considered it proper to allow the dissolution of the marriage contract, and that was where one of the parties had been guilty of adultery. Now, in order to effect that, the practice was, to legislate for each particular case, and by a specific Act of Parliament to release the individual so circumstanced from the bond of matrimony. The practice of passing Divorce bills was not of ancient date. The first case in which the House exercised this power, if that of the Marquis of Northampton is execpted, which rested on other grounds was in the year 1669, on the application of Lord Roos, who was afterwards Earl, and he believed Duke of Rutland. In mentioning that celebrated case, Bishop Burnett makes the following remarks:—"This matter had lain asleep above 100 years (the allowing of a second marriage after a divorce for adultery), till the present Duke of Rutland (then Lord Roos) moved for the like liberty. At that time a sceptical and libertine spirit prevailed, so that some began to treat marriage only as a civil contract, in which the Parliament was at full liberty to make what laws they pleased; and part of King Charles's courtiers applauded this, hoping by this doctrine that the King might be divorced from the Queen." It appeared, then, according to Burnett, that the prinpal reason why this doctrine was then favourably received in Parliament, and why it was applauded at court was, because it was supposed that it would enable King Charles 2nd to obtain a divorce from his wife. This question, as to Lord Roos's marriage, was discussed at great length; the discussions upon it lasted for several years; King Charles himself attended in person at these debates in the House, and the bill for the dissolution of the marriage was finally carried by only a small majority. The next case which occurred led to great discussions at the Bar of the House; he alluded to the case of the Duke of Norfolk. The Duke of Norfolk applied for a divorce in 1692, but failed in his application. In 1700 he again renewed his application, and after great discussions at the Bar of this House, he succeeded in obtaining the divorce which he sought. In the course of those discussions, Sir Thomas Powis, who was leading counsel for the Duchess of Norfolk, said, that for 600 years there had been but four or five 1365 divorces, and the junior counsel who followed him on the same side, corrected that statement, properly as he believed, by stating that there had been in the 600 preceding years only three cases in which the House had granted divorces. Now, from the time when the bill was passed to enable Lord Roos to marry again, up to the year 1800, constituting a period of upwards of 130 years, there had been only 132 divorces by Act of Parliament, whereof eight had occurred in the first forty-five years of that period, fifty in the next sixty years, and seventy-four in the last twenty-five years of that period. From 1820 till 1830, in the short period of only ten years, there had occurred twenty-six cases of divorce; that showed a great increase in the frequency of those cases in latter years. Indeed, it was impossible for any persons who attended in the House of Lords, on occasions when such bills were passed, not to observe that they were generally passed with the connivance and collusion of both parties, and with the production of scarcely any evidence in their support. Both the Canon law and the Roman law were opposed to any species of understanding between the parties, and any suspicion of connivance imposed on Parliament the solemn duty of closely watching all Divorce bills in their progress. Even the Judges in the Courts below were continually baffled in cases of this kind. He found, that in reference to the frequent passing of bills of this kind, Lord Grenville—no mean authority, by the way, on a question either of morality or law—expressed himself in the following terms thirty years ago,—namely, in the year 1800:—"He had long been sensible of these truths, nor had he ever been present when a Divorce bill was passed, that he did not think the House disgraced and degraded." * There was a circumstance connected with the passing of these kinds of bills through the House of Lords, which merited observation. There was a Standing Order of the House of Lords, that every Divorce bill should contain a clause that the adulteress should never marry the adulterer; but whenever bills of this description were introduced, this Standing Order was suspended with regard to each bill. The bill contained the clause it was true, when it was introduced, but it was invariably struck out in
* Parl. Hist. 1800. vol. xxxv. p. 275.1366 the committee. In fact, the whole system of granting divorces required revision. Into that subject, however, he would not then enter, he would confine himself to the case before the House; and the question the House had to decide was, whether or not there was in this case any thing peculiar to disentitle the individual seeking relief to the indulgence which was usually extended by the House to parties under similar circumstances? There were two points to be considered here. It had been admitted by the learned counsel who opened the case, and by the gallant officer who had just addressed the House, that a double obligation was imposed upon Lord Ellenborough, and that he should, in the first place, show beyond the power of contradiction, or legal doubt, that his wife had been guilty of adultery. In the second place he was bound to show not only that he had not been guilty of adultery himself, but that he had not been guilty of connivance with regard to the crime of his wife, and that he had not been guilty of such neglect towards his wife as might cause her to abandon him. What was the doctrine laid down by the text law upon this point? It was this:—"Judex adulterii ante oculos habere debet et inquirere an maritus pudice vivens, mulieri quoque bonus mores colendi auctor fuerit. Periniquum enim videtur esse ut pudicitiam vir ab uxore exigat quam ipse non exhibeat." Such was the doctrine of the text law. As to the evidence to the adultery in this case, he must say, that the conviction on his mind was, that the evidence which had been produced as to that point was complete, and that the fact of the commission of adultery had been fully made out. It was true, that the testimony of some of the witnesses from Brighton was rather of a doubtful character; but then the evidence as to the constant visits of this unfortunate lady to Harley-street and Holies-street was conclusive; she went there in her own carriage, attended by her own servant, and there was as complete a chain of evidence as any court would require to establish the fact of the commission of adultery. The proof of that fact, if it merely depended upon the evidence of the two waiters at Brighton, might be considered doubtful, but they had corroborating proofs in Lady Ellenborough's visit to Brighton at that period,—in the precipitate haste with which Prince Schwartzen- 1367 berg went down there, and in the letter which Lady Ellenborough wrote from thence about the same time; and a further proof was afforded in the confession made by Lady Ellenborough to her governess, Miss Steele. He was ready to admit, that evidence which arises from confession was not a species of evidence which would be received in the Courts below, unless upon certain conditions, and liable to great distrust, Lord Stowell had laid down the law upon that point in the following words, in the case of "Williams against Williams." That learned Judge said in one of those admirable judgments, which had established for him so great a reputation, "The Court, however, must remember, that confession is a species of evidence which, though not inadmissible, is liable to great distrust. There is a canon particularly pointed against it, which says, ' Nec parlium confessioni fides habeatur;' and though it is evidence which is not absolutely excluded, but is received in conjunction with other circumstances, yet it is on all occasions to be most accurately weighed." Though such evidence in a Court below might not therefore weigh much, yet, when produced, in conjunction with the other evidence which had been given, it led him to the judicial conclusion that the act of adultery bad been committed, as far as legal proof could be obtained of the fact, in Harley-street, in Holies-street, and at Brighton. But then came the remaining question; and to that he would address himself, as he hoped all who heard him would do, with the most sincere disposition to arrive at a just conclusion. That question was, had the conduct of the husband been such as to justify Parliament in granting to him a privilege not to be obtained in the ordinary course of law by the subjects of this realm. The right hon. and gallant officer opposite had said, that a husband should not act the part of a spy upon his wife. What was the rule which was laid down by the law of the land in reference to the duty of the husband with regard to watching over the conduct of his wife? He should here again state the law upon this subject in the language of Lord Stowell, in an eloquent judgment which that noble and learned Lord delivered many years ago, in the case of "Foster against Foster." In that case, Lord Stowell refused the divorce which was asked for, and he laid down the law with regard to the duty of a husband 1368 in the following terms:—"It is not, however, to be considered as a matter perfectly light in the behaviour of a complaining husband, that he has withdrawn himself (with cause or without cause) from the discharge of duties that belong to the very institution of marriage; and if he has done so, he ought to feel less surprise if the consequences of human infirmity should ensue. I have to observe also, that his marital conduct is in the present instance in the highest degree inofficious. A husband is expected by law to pay a due attention to the behaviour of his wife, and to give her the benefit of some superintendence where she is placed in a dangerous situation." And in speaking of the conduct of the party, after laying down this genera] maxim, the learned Judge said, "At any rate, there was a want of that delicate sensibility—of that prudent attention—of that honest caution—which belong to the character of a husband." This, the House would remember, was said in a case in which the judge refused the divorce prayed for. That same wise authority delivered his opinion on the same subject in the discussion which took place in this House upon the Adultery Prevention Bill,—a Bill which, after it had been carried in the House of Lords, was lost in this House. He was not able to give a statement of the opinion delivered by that learned Lord upon that occasion like those which he had already read from reports which had been revised by his Lordship himself, and which of course were possessed of additional weight and authority on that account. The statement of the learned Lord's opinion on that occasion he found in the ordinary accounts which were published of the proceedings that took place in that House. The report stated that Sir William Scott said,—"He was, however, disposed to think that the law in this country was placed on a footing the best consistent with the general safety, He meant, so far that the legislature should keep the matter of divorce in its own hands rather than leave it to the subordinate courts. By the existing practice of the legislature, it was requisite, to entitle a husband to a divorce, not only to give proofs of the misconduct of the wife, but at the same time of his own good conduct. It was evident there might be shades of difference as to the conduct of the husband, so as to render the decision of the legislature a matter of discretion, 1369 which did not safely belong, and could not strictly be intrusted, to a Court of Justice, where decisions were to be guided by strict rules of evidence and matters of fact." It was evident from this, that the opinion of Lord Stowell was, that in a Court of Law a husband was bound to give proof that he had afforded to his wife "the benefit of some superintendence when she is placed in a dangerous situation," and that the legislature might exercise a discretion respecting those points, that could not be safely intrusted to a Court of Law. Could anyone doubt, indeed, after hearing these passages, that it was Lord Stowell's opinion, speaking in his judicial character, that by the matrimonial law of this country, there was an obligation, arising from the very nature of the contract, on the husband to pay attention to the conduct of his wife, and afford her advice and admonition when placed in a dangerous situation; when exposed to temptation, and the snares that were laid in the way of unrestrained indulgence in fashionable dissipation? Was it not- clear, too, that it was Lord Stowell's opinion, when speaking as a lawmaker, that the legislature had greater latitude in examining witnesses, and less strict rules for conducting the examination, than could be safely confided to any court of law; for he made this an argument in favour of the system adopted by the legislature in passing Divorce bills; and was it not evident that the House was, in his opinion, bound to have ample proof that the conduct of the husband had been in all things correct?
§ Sir H. Hardingewas understood to say across the Table, that the cases referred to were very different from the one before the House.
§ Dr. Phillimoresaid, the gallant Officer had misunderstood his object; he had not referred to any case as being one similar in its facts to the present case; but he had quoted opinions on cases merely for the purpose of illustrating the general principle of law which was applicable to all cases of this description. The hon. member for Aberdeen had said, that in the Courts below, in which he (Dr. Phillimore) had the honour to practise, no attention was paid to the conduct of the husband in cases of this kind. The facts to which he had just referred afforded, however, a complete refutation of that statement. He would then proceed to advert to the evidence which had been adduced, as to 1370 the conduct of Lord Ellenborough. Mr. Law had certainly given his evidence with fairness, and he had borne testimony to the connubial happiness which appeared to exist between Lord Ellenborough and his lady. But during the most important period of these transactions—namely, from 1827 to 1829, he never saw them, as he was out of the country, and could say nothing of the conduct of the parties for a period of nearly two years before the time that this unfortunate Lady became pregnant of a child by Prince Schwartzenberg. The evidence certainly did not go far to show a superintendence of his lady's conduct on the part of Lord Ellenborough. The whole question appeared to turn upon the confession of Lady Ellenborough to her governess, Miss Steele. That witness was stated to be a person of respectability, and of character. She certainly seemed to be an exceedingly clever, self-possessed, and adroit person, and if she had been before a jury, where a counsel could cross-examine her, and press her for answers, undoubtedly more evidence would have been elicited from her upon this subject. The case here was this—the noble Lord had married a young lady of the age of seventeen, who was declared by her governess to be a person "remarkably reckless of consequences." The obligation there-fore, upon Lord Ellenborough, to superintend her conduct, was considerably increased, when her disposition and the difference between their ages were taken into account. When this witness was pressed as to the caution which she gave Lord Ellenborough with regard to the improper society to which she conceived Lady Ellenborough had been introduced, it was impossible not to see that she had given him such a caution, and that she had brought distinctly under his observation the fact that his lady was living in society that might be dangerous to her, and to which she had not been accustomed in her father's house. This warning, therefore, it was quite plain had been given by this witness to Lord Ellenborough long before the separation between him and his lady took place. Again, there was a circumstance which could not pass observation,—he alluded to the absence of sexual intercourse between these parties, as proved by the evidence of this witness, Miss Steele. She stated she had been informed by Lady Ellenborough, that there had been no 1371 such intercourse for several months, and he thought it but fair to assume that it had existed for a much longer period. In the month of June, Lady Ellenborough stated to her that the child with which she was then obviously pregnant, was Prince Schwartzenberg's. It was plain, then, from that statement that she could not have had sexual intercourse with her husband for a long period antecedent to that time. The witness said, "several months;" but that might mean six months as well as three. The question, with her answer on this point, was as follows:—"You were understood to say that Lady Ellenborough gave as a reason why the child could not be Lord Ellenborough's, her not sleeping with him; have you never stated, that she gave as a reason, that she had not for several months slept with Lord Ellenborough?—Since the month of February, March, or April, but I cannot say which." Now this was another circumstance which increased the obligation on the part of the husband to look after the conduct of his wife. Here was a young and beautiful woman of two or three-and-twenty, separated from her husband's bed for five or six months, and that at her own request. In any Court of Justice that circumstance would be considered one which ought to have excited great alarm, and increased the vigilance and attention on the part of the husband. At this time, too, the intrigue between Lady Ellenborough and Prince Schwartzenberg was carried on with considerable publicity. During the whole period it appeared that this unfortunate lady was in the habit of going daily to a house in Harley-street, and afterwards in Holies-street; that she went there in her own carriage, and with her own servant, and that she was in the habit of undressing and going to bed there in the middle of the day with her paramour. The coachman, in his evidence, acknowledged that he frequently "saw Prince Schwartzenberg attending her Ladyship coming out of plays or operas, balls or parties, in the evening." And yet the witnesses who deposed to these facts stated, that Lord Ellenborough knew nothing about them at the time. Now he did not so much complain of the evidence which had been produced as to Lord Ellen-borough's conduct, as of the absence of other evidence, which ought to have been brought forward, to prove the attention and care of his conduct towards his lady. Why were not persons moving in a respectable 1372 station of life, and intimate with the family, brought forward to give evidence as to the exercise of a proper vigilance on the part of the husband with regard to his wife's conduct? It was with the deepest pain and anxiety that he had approached the consideration of this part of the subject; in doing so, he had endeavoured to divest his mind of every possible bias. In truth, he could have no bias whatever on the subject; but feeling as he did, and as the habits of his profession naturally induced him to feel, he could not allow the measure to pass without the expression of his opinion. He had made the most strict investigation into facts, as they had been stated in the evidence, and he found himself unable to account for the fact, how Lord Ellenborough alone could have remained ignorant of the transactions of this description, which had been going on for upwards of a year, and which seemed to be known to every one but to him, he living, as it were, a great part of that time out of cohabitation with his lady. To such a case as that, he could not avoid applying the lines of the great satirist of antiquity—
—"Dum resNota urbi, et populo, contingat principis auresDedecus ille domûs sciet ultimus.The question for the House to decide was, whether, taking all the circumstances of this case into consideration, they were prepared to pass a law for Lord Ellenborough's benefit, and to give him permission to many again, he having been, as it expressed in the preamble to the Bill, "deprived of the comforts of matrimony." In the course of the discussion on the Bill, appeals have been more than once made to the compassionate feelings of this House. He was not, he trusted, insensible to such appeals; he felt compassion, deep compassion, for the unfortunate lady,—compassion, infinitely deeper, for her afflicted parents; he felt compassion, too, for Lord Ellenborough, but he felt also that being called upon to decide this question in their judicial capacity, justice and not compassion should be the ruling principle of their decision. The Commons should recollect that they were called upon to decide upon this case in their judicial capacity, and justice should be their primary object—justice, not only to the parties individually concerned, but to the higher interests of society and the administration of equal law; and in doing so they should give all the consideration which was due to 1373 the sanctity of domestic life, to the public morals, and to all the circumstances which crowd upon the mind, in reference to the inviolable nature of the marriage tie. He did not know whether any body would follow his opinion, but the conclusion to which he had come was, that the House ought not to grant the noble applicant the relief for which he applied. He said that, under all the circumstances of the case, after such evidence as had been given by Miss Steele,—evidence regarding which he doubted whether it would have been sufficient to obtain a verdict for Lord Ellenborough in a court of common law, after the absence of other evidence which might and ought to have been given,—after the consideration of the facility with which that evidence might, have been produced, and of the discretion which the House had in its power, and was bound to exercise in all applications of this kind,—he said it with pain, that under all the circumstances of this case, he could not give his vote in favour of the relief which was sought to be obtained by this Bill.
§ Mr. Harrison Batleycongratulated the House upon its having consented to have, the evidence taken in this case printed. He had given to that evidence his deepest consideration, and he thought that it must carry conviction home to the mind of every man who read it, that adultery had been committed by Lady Ellenborough. Neither by the divine law, nor yet by the ecclesiastical law, did adultery give a right to marry a second lime to the party injured by that adultery. He must come down to Parliament to obtain that right. The interference of Parliament was necessary to obtain that privilege; and he said, that the individual who claimed that privilege at the hands of Parliament, must himself come before Parliament pure and unpolluted in all respects. Now, he maintained, that upon such evidence as had been produced in the present case, Lord Ellenborough would not have gained a shilling damages in any court of common law; for the evidence established, beyond all dispute, that he had not been that faithful and affectionate, and vigilant guardian of his young wife's honour that he ought to have been. It was in evidence that Lady Ellenborough had been in the habit of going to operas, balls, and routes, unaccompanied by her noble husband; and he was con- 1374 vinced, not only by that circumstance, but by others which appeared upon the evidence, that there had not been that attention on the part of Lord Ellenborough to his lady which gave him a right to their indulgence in allowing him the privilege of marrying again. He acted in that House as a representative of an independent borough, and he never would consent to give a vote upon a judicial question like the present, except upon his conscience. Acting thus upon his conscience, he could not vote in favour of the relief which was now applied for.
§ Mr. Spring Ricesaid, that in justice to his own feelings he could not, after reading the evidence taken in this case, consent to give a merely silent vote. He begged leave, in the first place, to state, that if there had been any thing unprecedented in the course taken upon this occasion by the House, the peculiar circumstances which surrounded this case had fully justified it, not indeed with reference to the parties concerned in it, but with reference to this being an application for a bill of divorce, unsupported by any verdict obtained in a court of common law. He thought that, without entering into the consideration of whether the parties were high or low, rich or poor, titled or untilled, it was the duty of the House, exercising its functions legislatively and judicially, to make the most complete inquiry into any case which had not that groundwork for a decision which was always afforded by the verdict of a court of justice. He, for one, was of opinion that the House had upon this occasion fully discharged its duties to the public; and though he did not think that the House ought to be at all swayed by reference to the rank of the parties, yet acting in the face of the public, he admitted, that if there were to be any exception to its general rule of not examining evidence in cases of this kind, that exception ought not to be found in cases where the parties were rich and powerful, in order to show that its decision was not mere matter of interest and favour, but founded on the strictest and most impartial examination. So far, then, in justification of their recent mode of proceeding. The House had now the evidence before it, and what was the legitimate inference to be drawn from it? Here he must say, that he entirely dissented from the doctrines which had been advanced by his hon. friend, the member for Aberdeen. In 1375 his opinion, his hon. friend had not given a fair account of that evidence. If the evidence had been as his hon. friend represented it, he should undoubtedly have come to the same conclusion as his hon. friend, but because he had read that evidence in a sense quite opposite to his hon. friend, his vote would be given in opposition to that of his hon. friend. His right hon. and gallant friend on the opposite benches had done the House only bare justice when he stated, that in the discharge of its functions it had not been influenced by party considerations. The evidence was now before the House, and he repeated the assertion, that he could not understand the constitution of that man's mind who could doubt that in this instance the act of adultery had been committed. If the body of evidence now before the House were not sufficient to prove the commission of adultery, he was at a loss to discover what evidence would be deemed satisfactory. Having said thus much, he would now proceed to express his assent to the proposition that the House had not evidence to justify its withholding from the noble applicant the relief which he prayed for. It was said that in all cases of this kind the conduct of the husband must be taken into consideration. He admitted that it must:—he admitted further, that there was more of carelessness in Lord Ellenborough's conduct to his lady than he could either approve or justify, but admitting that, he must maintain that there was nothing proved in evidence against Lord Ellenborough which would justify the House in withholding from that noble personage the remedy contained it this Bill. In the course of this debate, there had been much discussion respecting the inconveniences, the anomalies, and even the injustice, of their mode of proceeding upon Divorce bills. To many of the observations made upon those points, he gave his fullest and most cordial assent; but on that abstract principle, let hon. Gentlemen proceed to amend the law, instead of applying anew principle to the present administration of it. Such an application of a new principle to this particular case was clearly not a way to do impartial justice. He should therefore give his vote in favour of the present Bill, upon the grounds which he had already stated. But having taken the liberty of saying thus much in discharge of his judicial duty, in which he trusted that no one would suppose that he 1376 had wandered from the subject before the House, he must now, injustice to himself, and to his own feelings, add a few words more; not with a view to prejudice this case, but with a view of discharging his duty to the public, in stating his opinion on the present state of the law. Was there one Gentleman, who had attended to the progress of this examination, that did not agree with the observation of Lord Grenville, that Parliament did itself no credit in undertaking functions of this nature? It had been said, that an examination at the Bar of that House was never conducted in a manner that was either creditable to the House itself, or calculated to elicit the truth. Now, if there were one subject to which all the evils, without any of the benefits arising from such an examination, would attach more than to another, it was that subject which connected itself with the character of Divorce bills. He hoped that the time was not far distant when the House, by the alteration of the law, would abdicate functions which it could not discharge either with honour to itself or with satisfaction to the public. He thought, that in no civilized country but our own, was there ever such a principle admitted in a contract between two parties, as this,—that the general principle should be the indissolubility of the contract of marriage, and that the exception to it should be an ex post facto law, dissolving it in particular cases; and that, too, by a species of mechanism which gave it as a relief to the rich and powerful, whilst it refused it, under precisely the same circumstances, to the poor and needy. It was a great aggravation of the evil to have it inflicted in the strongest manner in cases where it was likely to be most severely felt, from the humble habits and confined resources of the parties,—in cases where the injured husband had not the same means as the rich of retiring from a disgraced home and a polluted partner. He was happy to find that the whole subject of ecclesiastical law was at present under the examination of commissioners, and he trusted that this subject of divorce would not be without a portion of their consideration. But, whatever might be the views of Government as to the ecclesiastical law, and however much gentlemen; might feel that Parliament was lowered by-examinations into facts. establishing or disproving adultery, he trusted that they would not, because they were discontent- 1377 ed with the present state of the law, refuse the remedy which was applied for here. The fact of adultery was fully proved, and as there was no sufficient evidence of misconduct on the part of Lord Ellenborough to justify him in refusing him the privilege for which he applied, he should certainly give his vote in favour of this Bill.
§ Sir John Beresfordsaid, he trusted that the House would do every justice to Lord and Lady Ellenborough and their families by allowing this Bill to pass. After the sentence of the Ecclesiastical Court, the Bill could inflict no evil upon one party, although it might afford relief to the other. Whilst he was this morning at breakfast, reading" the evidence taken at the Bar, a lady of rank and respectability, who was intimately acquainted with Lord Ellen-borough's family, called in upon him, and in the course of conversation, informed him that, to her knowledge, a more tender husband and father than Lord Ellenborough never existed. She said that his only fault was, that he had always been more liberal to his wives than any man should be.
§ Sir Edmund Carringtonsaid, he had no doubt whatever as to the vote he ought to give on that Bill. He had fully considered the evidence, and made up his mind as to his decision. He could not, however, justify it to his own feelings, either as a lawyer or a gentleman, to give a silent vote upon this occasion, especially as he felt convinced that there was not the shadow of a reason for refusing Lord Ellenborough the relief for which he prayed. He regretted infinitely the state of the law on the subject of divorce, but that was no new subject of regret with him, though he should not have raised his voice against the law, had he not felt himself justified by the various objections which had of old time been urged against it, and by the wishes which some of our most able statesmen had uttered for a reformation of it, which had never been carried into effect. He asserted, that so long ago as the reign of Edward 6th, this defect in our law, this miserable divorce a mensa et thoro, was strongly objected to by those great and good men who formed the book of the Reformation of the Law, and who were headed by a man ever memorable in English history—he meant the venerable Archbishop Cranmer. That a divorce a vinculo matrimonii could not be granted by some of the ordinary courts of the country. 1378 and that it required the intervention of the high court of Parliament, was with him a subject of great regret. When those ordeals were passed through, which must convince all parties that adultery had been committed, he regretted that then there was not in England, as there was in Scotland and in Denmark, both Protestant countries, a complete and easy relief a vinculo matrimonii. On what footing did the doctrine of divorce stand? The divine legislator of Christianity had said, that in cases of fornication, which in married persons amounted to adultery, divorces ought to be granted. Why then should not a divorce a vinculo matrimonii follow as a matter of course the proof of adultery before the ordinary tribunals? Why should a Divorce Bill, having travelled through a series of examinations before two distinct courts, in which it was surrounded by oaths, be at last sent up to that House to be enveloped in an examination undertaken without an oath? It was sufficient for him to know that those who framed the book for the reformation of the law, several centuries ago, admitted that the state of our law of divorce was inadequate for the purposes for which it was intended. Its inadequacy rendered these applications to Parliament necessary as a supplemental mode of obtaining a remedy for the faithlessness of a wife. There were two points which it was always necessary to prove in such cases. The first was, that the affections of the wife had been seduced from the husband, and that such seduction had afterwards been consummated by the commission of adultery. Now no one could doubt that such was the case here. The corpus delicti was clear. There was also another point which it was requisite to prove before the husband was entitled to relief, which was, that he had exercised due care and marital tenderness over his wife,—that he had not improperly restrained her enjoyments or abridged her comforts. Now what was the evidence upon that point in this case? It was material that they should confine themselves to that consideration, lest by running after presumptions, they should inflict upon Lord Ellenborough a most cruel injury. There might, perhaps, be in the evidence a proof of a slight degree of negligence on the part of Lord Ellenborough, of a want of some of those petty attentions to his wife which the forms of society exacted; but there was also in that evidence the 1379 most undeniable proof of the unbounded affection which he bore towards her. Miss Steele said, that Lady Ellenborough was always treated with kindness and affection by her noble husband. Such was Miss Steele's evidence. He was not in the House during the speech of the hon. member for Aberdeen; but he was given to understand that the hon. Member had drawn an inference from Miss Steele's evidence which he thought was not only unfounded in itself, but also most cruel in its consequences. Miss Steele said, that when she mentioned to Lord Ellenborough the improper female society to which he introduced his wife, he laughed at the information. This was not the laugh of indifference or of levity, it was not the laugh of sarcasm; at least, he should construe that it flowed from a mind full of unlimited confidence in his wife—a mind free from all suspicion, and rejecting the shadow of dishonour which was implied by the observation against his wile—a mind convinced that it was justified in having an unbounded confidence in her affection and in her rectitude. What was the evidence of the butler, but that the lady had been treated with confidence and respect, with attention and tenderness, uniform and unaffected, and greater than the witness had ever seen in other families? Miss Steele, in giving evidence of the parties having separate beds, had said that this arrangement had been made not only with the concurrence of Lady Ellenborough but at her especial request. That the fact of adultery was established by sufficient proof, was acknowledged by every body. Would any man within that House, or out of the walls of Parliament, say that there was anything in the conduct of Lord Ellenborough that could form the slightest justification of the wife's dishonour, or that could be construed into a pretext for withholding from him the relief he sought? If the evidence did not justify this, was the House to rush wildly to presumption in order to deprive this nobleman of his remedy? He knew that the principle of such bills was a repeal of the law, but it was a necessary supplement to the absurdity of the law. As a lawyer, as a legislator, and as a gentleman, he felt himself bound in justice and honour to say, that from all that had appeared upon the case, there was not the slightest imputation upon the character of the complainant. He would never resort to confused, unfounded visionary presumption, in order to inflict a 1380 substantial evil upon any man; and he felt it impossible to vote against the Bill consistently with reason, integrity, and honour.
§ Dr. Phillimoreexplained. He had not thrown any blame whatever upon the manner in which the case had been discussed and settled in the courts below. His observations had extended only to the proceedings of the two Houses of Parliament in taking cognizance of such cases.
§ Mr. Robert Grantsaid, that he had never risen to perform a more painful duty than that which was cast upon him by the present Bill. He felt happy indeed to say, that in the few observations he should make, he should have no occasion to make any personal comments or allusions whatever; but he was called upon to express his sentiments in the discharge of judicial functions of a very important nature. Acting with that conscientious feeling on which members of that House were bound to act in all judicial questions, he felt himself bound to say, that the conclusion to which he had come was unfavourable to the relief for which Lord Ellenborough was an applicant. If the principle of divorces adopted by that House be right, if such a principle be allowed, the applicability of the principle to the present case could not, he conceived, be denied. Every Gentleman who had admitted the expediency of passing the Bill, was of opinion that there was a peculiarity in the case by the House being called upon to come to a decision without the usually preceding examination and judgment of a court of law. He implored the House to consider how important it was, that such inquiry should be had, not merely in this, but in every other case of adultery. If a verdict of a jury had been given, by the husband's seeking a pecuniary compensation for his wife's dishonour, the evidence would have been thoroughly sifted, and it would have been competent for the defendant to have. repelled the evidence to prove the adultery, or to have established a case against the plaintiff which might have effected a reduction of damages. He might have proved ill-usage on the part of the husband; he might have proved connivance or collusion, or flagrant immorality and libertinism on the part of the husband, or at least a very high degree of culpable negligence. Whenever a defendant attempted to prove any of these defences, and failed, no such objec- 1381 tion could be made as was made in the present case: where he succeeded, no damages would be given, and no groundwork would be laid for such a bill; it of course would never be brought before Parliament. Where a defendant had not attempted such a line of defence, there would be a strong presumption, because he had not attempted to prove such misconduct, that there had been none on the part of the husband. In such a case the House would be convinced, by looking at the preliminary proceedings, not only that the husband had properly performed his duty, but that he had also not been influenced by any of the considerations to which he had previously alluded. In the present case there could be no question that the criminal act had been committed. There had been no attempt made to prove the innocence of the wife: the only attempt was, to destroy the claims of the husband. When a case like this came before Parliament, without the institution of any proceeding in a court of common law, it was clear that all those guards which he had just enumerated against a collusive understanding between man and wife were totally wanting. Was there any person who could supply that void? Yes, there was one person, and one person only, and that was the husband. If they did not intend to open the door to the most frightful devastation of principle among the higher orders of society, they must lay it down as a principle that the husband should supply that part which was defective in his case, and that he should produce evidence to convince the House that no such defence could have been attempted with success. He said that it was in the power of the husband to do this—it was not calling upon him to prove the truth of a negative, though every one knew that there were a hundred cases in which that species of proof was demanded in a court of law. He said, that by producing witnesses familiar with his habits and proceedings, it was in the power of the husband to place his conduct towards his wife fully before the House, and to produce in the mind of every hon. Member a moral conviction that he had not been wanting in any of those attentions towards his wife, in which, if he had been wanting, his claim to damages would have been destroyed. The House, it was true, had the power to send for different witnesses, and to examine them; but it was not in the power of the House, without some previous in- 1382 formation respecting the private habits of his life, to get the truth on such points from reluctant witnesses. He begged to say, that he did not intend to impute to the noble Lord who now asked for relief, any of that conduct which he had been putting in hypothetical cases; but he was entitled to say, upon the evidence which had been taken, that except the point of unkind treatment, none of the other points to which he had alluded was negatived by the evidence then before the House. Hon. Members said, that they had not judicial evidence before them that Lord Ellenborough could be charged with any of those acts, of which a defendant could have availed himself before a jury. To say that you had not judicial evidence on such charges, was merely to say that you had no evidence to the contrary. He said that the House ought to have evidence to the contrary. For the sake of shutting out collusive applications from husband and wife for these divorce bills, it was of importance to hold it out as a general principle, that the House would throw on the applicant the burthen of showing, that if there had been a trial at common law for damages, it would have been in vain for any defendant to have set up the husband's misconduct as a defence to such an action. Such were the grounds on which he felt a moral incapacity to support a measure like the present.
Dr. Lushingtonsaid, that if he were to consult the dictates of his own inclination, he should not take any part in this discussion; but, on mature reflection, he felt that he should fail in his duty, if he did not state the impression made upon his mind by the evidence which had been taken. It so happened that he, as Chancellor of the Diocess of London, had to pronounce the sentence of divorce a mensa et thoro in the Ecclesiastical Court: and here he could only say, that no one who read the evidence produced before him could help seeing that it was impossible not to grant a sentence of divorce. Whatever might have been his conviction of the necessity of the judgment which was pronounced in this case, he considered himself, acting in that House as a Member of Parliament, and in a very different species of proceeding with a view to pronounce a more extensive judgment, at liberty, if on the perusal of the evidence he thought it right to do so, to refuse the party the remedy now prayed for, of a totally dif- 1383 ferent description from that already granted, and on the production of other evidence. He could not help thinking that there was one circumstance in the case which he was bold to advert to without the least hesitation, though it was painful to him to do so, and which had produced an impression that ought not to have prevailed,—he meant the general unpopularity of Lord Ellenborough. It was a misfortune that it should be so, but he knew from what he heard from many Members of that House, that such was the real state of the general feeling. He did not mean to say that every Member whom he was addressing had not used his utmost endeavours to divest himself of that feeling, but whether that were the case or not, the unpopularity of Lord Ellenborough had been the means of exciting an interest in the House, and of inducing a critical examination of the witnesses and the evidence which would not otherwise have taken place. He confessed that no man felt more than himself the unpopularity of Lord Ellenborough. No man could be more perfectly convinced that such was the case, and when he stated that, it could not be thought that he meant to falter his Lordship in one word which he might say. But when he recollected that the measure was brought forward in the House in the ordinary course, the first tiling he tasked himself with was to consider the evidence as an honest man, calmly and dispassionately. He had done so to the utmost of his power, and the result at which he had arrived was, that, in his judgment, his Lordship was entitled to the relief which he prayed for. His reasons were these:—In the first place, no man who had read or heard the evidence could for a moment entertain a doubt that adultery had been committed, which was the foundation of all such measures. Well, if that were really the fact, according to the established practice which had prevailed at least for the last twenty or thirty years, in cases of this description, it was necessary, in order to deprive the husband of the relief which he sought, to prove on his part either criminal negligence, or connivance, or collusion. He would direct the attention of the House to the evidence, and ask whether there had been established against Lord Ellenborough criminal neglect of his lady, connivance at her offences, or collusion in the slightest degree. When the House considered the habits of high life, 1384 when they considered the customs of the world, would they try the present case by a different rule from that which had guided their decisions with respect to the last dozen cases of divorce? Would they require Lord Ellenborough to say—"I am more pure than any of my noble friends. I was more cautious and wise than the noble Lord or Baronet who obtained the last divorce. My suspicions were awakened by that which had awakened the suspicions of no man before?" It was, in his opinion, the greatest injustice imaginable to lay upon the husband the onus of proving his innocence. He felt the deep importance of the subject, and he trusted that no syllable which might fall from him would be wrested to a different tendency from that in which he meant it. He felt it to be of the deepest importance, that every individual, be he high or low, should duly discharge his marital duties. If he had the slightest reason to believe that his Lordship had cause to suspect his lady to be in danger, and still suffered her to go on in her course, or that his suspicions were not excited by circumstances which ought to awaken the suspicions of an affectionate husband, he would be the first person to refuse him the relief which he prayed. There was, however, but one ambiguous passage in the whole of the evidence, and that was to be found in the testimony of Miss Steele, when she stated that Lord Ellenborough received her information with a laugh. It was doubtful whether his Lordship evinced that emotion from a disregard of consequences, or merely smiled at the suspicion of the witness on account of his confidence in the integrity of his wife. The witness believed it to have proceeded from unlimited confidence, and with that fact before him, by what law of justice could any one fix on an ambiguous passage a meaning hostile to the honour, and inconsistent with the character of an upright, honourable, and candid man? If the same sort of test were to be applied generally, any man, however alive to his own honour and character, would be unable to obtain relief from that House. Who was there who might not be made the victim of an ambiguity, if his whole life and character were allowed to have no weight against it? There was then no proof that Lord Ellenborough had been negligent of his own honour, or had not paid due attention to his wife's conduct; and as to collusion, he believed that no 1385 person would have the hardihood to prefer that accusation: at least he was sure that there was no evidence to support it. If that, then, were the real state of the case, what reason was there for the House to refuse Lord Ellenborough the ordinary remedy? He felt great diffidence when he took upon himself to make any answer to his hon. and learned friend, Dr. Phillimore, whose observations were always entitled to particular weight, for the double reason, that they proceeded from the dictates of an honourable and a conscientious mind, and a delicate and informed understanding. His hon. and learned friend's chief objection to the measure was the accidental absence of the verdict of a jury. The present was not the first, nor the second, nor the twentieth case in which such a verdict had been wanting. The absence of a verdict might arise from a variety of circumstances, but it must not be visited upon the individual who came for the remedy of his misfortune, deprived of the additional remedy which the law could give him. A man might be guilty of criminal conversation with the wife of any of his hon. friends around him, and he might escape to the East or to the West Indies, and thus deprive the injured party of all means of obtaining that test, the absence of which was now so strongly insisted on. But in reality this test was a pure nothing. He spoke from experience—it did not in one case out of twenty elucidate the real facts of the case. In many instances, the person who has committed the adultery, from a feeling of delicacy towards the wife, made no defence; on other occasions, both parties were anxious to obtain a divorce, and therefore nothing in the course of the trial came out against the character of the husband. Under many other circumstances, too unnecessary to enumerate, the facts of the case were not brought out, and consequently the test was good for little or nothing. And when from a concurrence of events there was no possibility on the part of the husband to bring the matter to this test, was he to say to him that these circumstances, over which he had confessedly no control, were nevertheless to throw on him the onus of doing—what?—of bringing to the Bar of the House all the members of his family, to the end that, on the minutest cross-examination, nothing should appear against him. God forbid that this should take place. It was 1386 one of the chartered rights of this country, that no man should be put upon his defence until a case was made out against him. They had no right to say to Lord Ellenborough, you have not made out your own innocence; and if he had proved the adultery, and if nothing reflecting on his conduct as a husband in one of the three ways already stated appeared from the evidence of any of the witnesses, he had done all that was to be expected from him, according to the general practice in such cases, and the man who set up the exception must prove the guilt. He had now stated his opinion frankly and fearlessly; and while advocating the measure of relief sought for by his Lordship, he expected no gratitude from him. He thought the House could not refuse this Bill in the face of all their former decisions. He remembered the proceedings in such cases for a period of fifteen years; he never knew an instance (although in many cases facts of a much stronger nature were adduced against the individual seeking the divorce)—he never knew an instance in which there was so strict an investigation. Questions unparalleled in a court of justice had been asked—questions that ought not to have been tolerated in any court were pressed—questions calculated to draw forth criminating answers—questions calculated to produce a particular effect, and one which was not founded on truth, which ought alone to be sought alter in a judicial assemblage. He was grieved at what had passed. An hon. Member had expressed a wish that the time would soon arrive when the House would no longer be called upon to interfere in cases of this kind. In that wish he heartily concurred. Would to God that this were the last case of divorce that might ever come before the House, that that might be the last time the House of Commons would ever have to interfere in such a question. He declared solemnly that there was nothing more repulsive to his feelings—nothing in his mind more degrading to the House of Commons, than to witness the full and anxious attendance of hon. Members in a case of this kind, and the private curiosity evinced by many of them to pry into domestic concerns. When he was called upon to discharge his official functions in cases of this nature, he considered it one of the greatest evils which could happen to him. Could he do otherwise then than say, would to God the House were spared the 1387 disgrace of such proceedings—would to God the Marriage Laws were placed upon some solid basis—that some regulations were laid down, a deviation from which would at once entitle the aggrieved party to a divorce, whether that party was of high or low degree; and mark me (continued the honourable and learned Gentleman), whether male or female. Great injustice was sometimes done in these matters. He only remembered one instance in which a case had been decided out of consideration to the female. This took place in the year 1801; and having said this, he would not enter farther into the case in which (as we understood him to say) there was proof against the husband of an incestuous intercourse, He would next cite a case to prove that no fixed rule prevailed in the proceedings of the House respecting such measures. In the year 1757 Lord Powis was divorced from his wife, without any previous sentence of the Ecclesiastical Courts, and without any verdict of damages in a court of Common Law. This showed what a body of gentlemen might do with laws founded on no fixed principle. He had next to observe, that for forty years after the Reformation no divorce bill had been considered by the House of Commons; all questions of divorce were decided by the House of Lords and the Ecclesiastical Courts. Then there was a complaint that to grant divorce was a violation of God's law; but if that were so, it would not be less a violation of that law that the divorce were the act of the whole Legislature. He most cordially agreed with the hon. member for Limerick. He wished to God that there was a new system—but he must say, that if on the present occasion they refused Lord Ellenborough the remedy he sought, his honest and deliberate conviction was, that they would be, in the face of the testimony, stamping his Lordship with the commission of guilt—that they would be most unjustly branding him with offences of which there was not a tittle of evidence.
Lord F. L. Gowersaid, he rose to congratulate the House and the country on the speech he had just, heard. The hon. and learned Gentleman had done as much as man could do in controverting a certain set of arguments which had been brought forward by some hon. Members, and which, he thought, might be well described without imputing motives to any hon. Gentleman under the appellations of cant and 1388 sophistry; and the hon. and learned Gentleman had done still more, for he had also dealt, after a most convincing manner, with the close and honest reasoning of the hon. and learned Member who had preceded him. As far as he could see from the course of the debates, one of the principal arguments adduced would tend to revive the ancient practice of compelling the accused to bring twelve compurgators into court. Other arguments went to enforce the close inspection of their partners' conduct, which accorded better with the practices of Southern and Eastern climes than with those more liberal customs which had been proved, by long experience, the best safeguards of an English husband's honour; and God forbid that the House of Commons should ever afford any reason or sanction for the adoption of principles and practices which were repugnant to every generous feeling. He agreed with many hon. Members in what they had said respecting the state of the law; and he considered that the time devoted to that discussion would not be all lost, if out of those proceedings something should take place to amend that law, which was allowed on all hands to be prejudicial and defective.
§ Mr. Trantdeclared, he had been led to adopt the opinions of the hon. member for Inverness, and would vote against the Bill. He trusted that the House would not shrink from the performance of its duty, however painful. He was not unfavourably disposed towards Lord Ellenborough, or in any manner influenced by the unpopularity of the noble Lord. He had not the honour to know him, and had never taken his conduct at all into consideration, except when a hon. friend of his asked some questions relative to a letter written by that noble Lord. He had then felt it his duty not to approve of that noble Lord's conduct, but that feeling was wholly the result of taking into consideration what was due to the public. Had he felt any prejudice against the noble Lord, he would have absented himself on that occasion. Being sensible, however, of no such prejudice, he had been present at all the proceedings, and the conclusion he had come to was that which he had already stated. As long as the Constitution threw the burthen of deciding cases of that kind on the House of Commons, so long he should think it his duty to pay attention to such bills, and give no vote on them without a 1389 conscientious conviction of its justice. But being convinced of the justice of any particular vote, he never would hesitate to give it, and certainly his vote would be against the Bill. He was sorry to have said so much, but imputations of improper motives having been scattered about, he thought it right to declare his opinions and explain the motives that guided his conduct.
The Marquis of Blandfordsaid, he would give his vote upon this question uninfluenced by fear, favour, or affection—by envy, hatred, or malice. The evidence did not appear to him to be satisfactory—it was not, in his opinion, sufficient to entitle the noble Lord to a farthing damages in a court of law. He allowed that the adultery had been committed; and therefore his opposition arose, not from any doubt of this fact, but from his belief that there was a collusion between the parties to obtain a divorce. He thought, too, that the long-continued neglect of Lord Ellenborough deprived him of all right to the relief he claimed at their hands. He was not desirous of insinuating that such neglect justified the conduct of the lady, but it certainly was an extenuation of it. He believed in his conscience that Lady Ellenborough had been neglected, abandoned, and sacrificed. There was no good proof of the existence of connubial felicity, or that his Lordship had enjoyed the comforts of matrimony; on the contrary, it was in evidence that he had not enjoyed them, and most probably by his own fault. It appeared that the parties had not cohabited for months before their final separation. And when the youth and inexperience of her Ladyship were taken into consideration, and when it was remembered that she was subjected to the mischievous influence of gay and profligate associates, in disregard of warning given, and suffered, with a blind confidence on the part of his Lordship, to roam about unprotected, he thought there could be little doubt that she had been sacrificed, and he had as little doubt that Lord Ellenborough was not entitled to the relief he sought. Although reluctant, he felt himself compelled to vote against the Bill.
§ Sir G. Clerksaid, he could not let the question go to a vote without saying a few words. The hon. and learned Gentlemen opposite objected to the species of remedy, but till the law should be altered, a Bill like this 1390 was the only remedy; and surely when, adultery had been proved, the House would not withhold a divorce a vinculo matrimonii. The hon. member for Inverness opposed the Bill, because there had been no action at common law; but it was impossible for Lord Ellenborough to have recovered damages, the party being a foreigner, and having left the country, and therefore it was unfair to blame him for the absence of a verdict. The hon. Member was afraid, that if the House permitted Divorce bills to pass without a verdict having been obtained, that there would be continual collusion, without the possibility of a remedy. But the hon. Member need not fear that, for the Standing Order of the House required that no Divorce bill should be brought forward, unless the verdict were laid on the Table, or a sufficient cause shown why that could not be clone. The cause in this case was, that one of the parties was not amenable to our tribunals, and it would be a flagrant injustice to Lord Ellenborough to deny him relief, because he had it not in his power to obtain a verdict in a court of justice. No one, with the exception of the hon. member for Aberdeen, appeared to entertain any doubt as to the commission of the act of adultery. The question then was—was there anything in Lord Ellenborough's conduct which ought to deprive him of the remedy which he sought? There certainly was nothing in the evidence to justify hon. Members in taking such a view of the question. The hon. Member(Mr. R. Grant)said, that his Lordship ought to have proved her innocence and his own good conduct; but that objection had been so ably answered by the hon. and learned civilian (Dr. Lushington) who had lately addressed the House that he thought further remarks on it unnecessary. If the hon. Member, however, had any suspicion of the fact—if he thought the evidence which had been produced insufficient, he might have called for further evidence. He was informed that all Lord Ellenborough's servants were in attendance. He might have called for some of them. He was astonished also to hear the noble Lord who last addressed the House, talk of Lady Ellenborough as having been neglected, abandoned, and sacrificed. He called upon his Lordship to point out any part of the evidence which justified that description. It was impossible to do so. There was not a tittle of evidence to support such an assertion, 1391 He might perhaps, but he did not, complain of the tone and temper in which the investigation had been conducted; but looking at the statements out of doors, there could not exist in the mind of any impartial man a doubt that a foul conspiracy had been existing for some time, for the purpose of blasting the character of Lord Ellen-borough, and particularly when he considered the moment at which part of the public press introduced long articles on the subject, on the very day on which the discussion was coming before Parliament, which could proceed from no other motive but, he trusted, the impotent motive, of endeavouring to prejudice the minds of Members of that House, who were called upon to decide upon the question by the evidence before them. As to the want of proof that the parties had lived in a state of connubial felicity, he begged to remark, that the evidence of one of the unfortunate lady's nearest relations went to say that, as far as he—speaking as a father and husband—knew, nothing could exceed the kindness and attention of Lord Ellenborough. Then, as to the chasm left in the evidence of the Hon. Mr. Law, he contended that it was amply supplied by the testimony of Miss Steele, who visited the family frequently, and had been acquainted with Lady Ellenborough from her earliest years. He called on any man to look at the letter which Lady Ellenborough had written to her husband just before their separation, and that which he had written to her some time previously, and those letters would show what degree of affection existed between them—affection in reality on his part, but assumed on hers, to conceal from him her real situation. The principle contended for by the hon. Member opposite (Mr. H. Batley) was, indeed, new—that that House ought to grant no divorce to any man who suffered his wife to go unaccompanied to balls or the opera. If that was to be in future the principle which was to regulate their conduct, society must, indeed, assume a very different form from that which it had hitherto borne; and he would ask, whether any man who had duties to perform—who, for instance, was engaged in important public business—was to be strictly bound by such a principle? What had been the noble Lord's situation? In the year 1828 the noble Lord had occupied a public situation, to the duties of which he was obliged to pay a very constant attention, and in 1392 that same year commenced that unfortunate acquaintance with Prince Schwartzenberg which had terminated in this very unhappy manner. The noble Lord had not introduced Prince Schwartzenberg to his house, and possessed no means whatever of knowing what his lady did in his absence. It appeared in evidence, that Lord Ellenborough never saw the Prince at his house, and he had no opportunity of knowing anything about the connexion. It was no accusation against him to say that during a great part of the middle of the day his wife was absent from home in the carriage. It was impossible he should always inquire where she had gone; she might have ordered out the carriage to take an airing, or to go upon the necessary and proper business of her household; at that particular time of clay the noble Lord was engaged in public business, and he was often so engaged when Lady Ellenborough wished to go to the opera or to balls. If his wife had a fancy for enjoyments of that sort, was he to debar her from them merely because his own engagements prevented him from joining her? That was precisely the case with Lord Ellenborough. He had the most unbounded confidence in Lady Ellenborough's honour; and as his public duties rendered it impossible for him always to accompany her, he did not refuse to allow her those enjoyments of society in which she might properly participate. On these grounds he saw no reason for blaming the conduct of the noble Lord; and whatever were the objections that might be made to the mode in which divorces were now granted, he thought it impossible for the House to refuse to giant this Divorce, without at the same time throwing a foul stigma on the character of the noble Lord, which he thought they could by no means wish to do.
§ Mr. Moncksaid, that there were suspicions in this case, as there must be in every case which was not submitted to the decision of a jury; but he did not think that there were any good grounds for imputing misconduct to his Lordship. It was, therefore, impossible for him to refuse his assent to the present measure. He agreed in general with the principle of the Mosaic law, that infidelity was a ground for divorce; but that general principle must have some certain exceptions, not, perhaps, distinctly expressed, but not the less clearly understood, according to that 1393 maxim of the civil law which said, ubi minus dicitur plus intelligitur. He looked at the evidence to see whether the case came within one of these exceptions, and he came to the conclusion that there was an entire absence of a preconcerted plan. He thought the case had a natural origin, and had been conducted to a most unfortunate result. The most suspicious circumstance in the case was the want of cohabitation with Lady Ellenborough, But that circumstance was explained by Miss Steele, who said, that the non-intercourse was at the lady's own desire. She certainly had a good reason not to desire it, for at that very time she was in criminal cohabitation with Prince Schwartzenberg, and during that cohabitation she must have viewed, if not with disgust, at least with indifference, the noble Lord her husband. On these grounds he thought enough had been shown to free the noble Lord from the imputations which at first had been cast upon him, and to justify the House in granting him, to the fullest extent the relief for which he sought.
Colonel Woodsaid, that having been in a manner appealed to upon this subject, he felt bound to say what he knew respecting the conduct of the noble Lord. He was the better able to do this, because he had married a sister of the noble Lord's former wife, and he thought he should not do his duty to the noble Lord if he did not bear testimony to the excellent conduct of the noble Lord towards that Lady. He thought that the argument which went to blame him for having allowed his wife to go out without him, had been fully refuted by those who had spoken in favour of the Bill, and he would, therefore, only make this observation on the course pointed out. by hon. Gentlemen who advanced that argument. If that course were to be pursued, instead of being English husbands, they would be converted into suspicious persons of a very different character. He was of opinion that they ought to treat their wives with attention and kindness, remembering that they were English-women, and that they ought not to be blamed for placing unbounded and unlimited confidence in them.
Lord Francis Osbornethought, that more evidence might and ought to have been produced. If they were to retain their judicial functions in matters of this sort—though, in his opinion, the sooner the judicial functions of that House ceased 1394 the better—he said, if they were to retain these functions, they ought to do justice somewhat according to the rules in other places. He must confess that he still entertained his suspicions, and that he could not vote for the Bill.
§ The cries of "Question," which had been frequently renewed, became more loud than ever, and the House then divided, when there appeared—for the third reading of the Bill 86—Against it 16—Majority 70.
| List of the Minority. | |
| Attwood, M. | Phillimore, Dr. |
| Batley, H. | Trant, Henry |
| Calthorpe, Hon. Fred. | Osborne, Lord Francis |
| Beaumont, Thos. | Waithman, Alderman |
| Frankland, Robert | White, Samuel |
| Grant, Right Hon. C. | Wood, Alderman |
| Grant, Robert | |
| Inglis, Sir R. H. | Tellers. |
| Lambert, James | Blandford, Marquis |
| Stewart, John | Hume, Joseph |
§ On re-entering the gallery,
§ Mr. Humewas addressing the House. The hon. Member complained of the conduct of other hon. Members in casting improper imputations on the motives of those individuals who had opposed the Bill. He did not complain of hard words merely, for to them he was pretty well accustomed, but of imputations which were most unfounded, and, therefore, most unjust. He complained especially of the hon. member for Tregony (Dr. Lushington) who being himself so well acquainted with the manner of examining witnesses and sifting evidence, and who must, therefore, be well aware of the different impressions it produced on different minds, should yet have told the House that those who were of an opinion contrary to that which he held, were not men of honest and upright minds, He thought such an observation most uncalled-for and unwarranted. An hon. Member had then accused those who opposed the Bill of having opposed it merely because Lord Ellenborough was unpopular. He denied the fact. The first time he had heard of that unpopularity was in that House. He asserted that that hon. Member was wrong in the ground he had taken—he assumed that there was no evidence to implicate Lord Ellenborough, although he must have recollected the opinion given by an hon. and learned Member, who had clearly stated, that not only no fault ought to be capable of being proved against the person who asked for 1395 the relief, but that he himself must show he was clear from imputation. Yet, notwithstanding this, the hon. Member had said that there was no imputation on Lord Ellenborough, and that those who differed from him in that opinion were not upright or honourable-minded men. [Some hon. Member was understood to deny that such words had been uttered]. He should be glad to find that he had mistaken the words of the hon. Member. But while those who had voted with him on this question were thus accused, there were many hon. Members who avowed themselves friends of the noble Lord. They came into that House then, not as judges, but as friends of one of the parties; and he thought it extremely unfair of them, because they were able to interpret the evidence by their own knowledge of the real circumstances of the case—because they had the links of the whole chain in their hands—and because those who voted with him wanted those advantages, that they should be thus accused, and thus have contempt hurled upon them. The hon. Gentleman must allow him to say that his blame was not consistent with that liberality of opinion which he was often heard to profess. Another hon. Member had said that no man of sense and decency could come to the conclusion at which he (Mr. Hume) had arrived. Had any one expression warranted the hon. Member in saying that? As to sense, God knew he might have but little sense; but as to decency, he boldly asserted that there was not one question, from the first to the last, put by him, that warranted a charge of want of decency. The charge was inapplicable, therefore; and it was unjust, because it was inapplicable. These hard words did not affect him, for he was used to them; but the imputations which they conveyed were not at all warranted. The right hon. Gentleman had said, that false and foul imputations had been made. He (Mr. Hume) had made certain statements—were these terms applicable to him?—were they intended to apply to him?—if so, he threw them back as undeserved; and therefore as inapplicable.
§ Sir George Clerksaid, he spoke of reports out of doors.
§ Mr. Hume, in continuation said, he knew nothing of what had been done out of doors. He certainly had not made any false and foul imputations. Then it was paid there was a conspiracy among those 1396 who opposed this Bill. He challenged proof of that assertion. If it were true, he was ready to declare that any one who was a party to it was unworthy to sit in that House. The fact was, that that novel and indiscriminate charge was utterly without foundation. He was of opinion that in this, as in other debates, moderation and coolness ought to be adhered to, and Members ought not to allow themselves to be carried away by their feelings. With respect to the charge of conspiracy, he would say distinctly for himself, that he was not the man who had had a communication from any man out of doors upon this subject. He called on the Member who made the charge to say on what authority he had made it. It was said that the noble Lord had been vilified and calumniated. That did not apply to anything that had fallen from him. He did entertain an opinion that the noble Lord had been too negligent; but he never denied that the criminality was fully established against the lady. He had no doubt, from all the circumstances, that the adultery must be taken as admitted; but he was not satisfied that the noble Lord had done his duty in observing the conduct of his lady. That was the ground of his whole objection. It appeared to him unfair, that a question of this kind could not be argued without such expressions. When he heard one learned Doctor of Law state an opinion, and immediately afterwards heard another learned Doctor of Law give an opinion diametrically opposite—the one saying he would not vote for the Bill because there was not proper evidence, and the other declaring that no one could read the evidence and not determine on granting redress to the noble Lord—when he heard, in addition to this, an hon. Gentleman opposite, stating the unwilling conviction of his mind that this was not a case for relief—was he to be abused and censured, because he took that course which seemed to him to be best, amidst those conflicting opinions? Such a mode of conducting the debates did little credit to the House of Commons, and he hoped such a scene would never again happen. The Government had the power to remedy the evil, and this Session ought not to be suffered to elapse without the remedy being afforded; and if no other benefit arose to the public from these proceedings, he trusted that at least they would derive the advantage of having the present mode 1397 of procedure abolished, and another substituted, which would be more consistent with the object of doing justice to the individuals, than anything that could be effected under the present system. He was sorry if he had expressed himself too warmly; he had sat quietly as long as possible; but because he happened to have commenced the discussion, all the attacks had been directed against him, and he thought he had been called on to express his disapprobation of the course that had been pursued.
Dr. Lushingtonsaid, if he had conceived it was within the power of misapprehension itself so to have misapprehended what had fallen from him, as he now found it had been misapprehended by the hon. member for Montrose, perhaps he should have remained silent on this discussion. But he had never believed that such a power of misrepresentation could have existed in any individual. That any man who had the faculty of recollection, that any one who had the power of stating facts that had previously happened, should have got up within three-quarters of an hour after he had delivered his speech, and put into his mouth sentiments which he had never uttered—conceptions he had never entertained, and which he had never given any man of common apprehension reason to believe existed in his mind, was most wonderful. There was no safety for any man if, speaking in plain intelligible language, his terms were to be tortured into meaning they did not bear, unless the House had a short-hand-writer at the Table at once to refute representations that were totally unfounded. What had he said? He had been accused of having said that the opposers of the Bill had been carried away by the influence of the unpopularity of the noble Lord, and had for that cause alone been betrayed into attempting to do injustice. Now what he had really said was, that he lamented he had found a strong feeling against the noble Lord on the ground of his unpopularity; but it was only the hon. Member who could have converted such an expression into a direct charge that that hon. Member was influenced solely by such a motive. The hon. Member had said that he knew nothing of that unpopularity, but were it not for his confidence in that hon. Member's statements, he should have had a little difficulty in crediting such ignorance. What bad he (Dr. Lushington) said? Let 1398 the hon. Member mark his words, and remember them. They were these:—He said that there was an unpopularity attached to the noble Lord, but that he was certain that every hon. Member who came down to that House to vote on that subject had done his best to divest himself of its influence. When he said that, to be told that he had uttered exactly the reverse, and to have expressions imputed to him which, without exception (unless, indeed, he excepted the hon. member for Montrose), every human being who had heard him knew he had never uttered, was a little hard. But that was not all: he was told that he had made an accusation that no man had opposed the Bill who had not been influenced by unfair prejudices and partial reasonings. That was pure imagination. It was not misrepresentation; it did not deserve the name; it was absolutely invention. He could put up with having his words tortured; he could put up with misrepresentations; but he put it to the House whether any debates could be carried on with facility if hon. Members were to indulge their fancy, and to put into the mouths of others, sentiments which they never uttered, and which, indeed they abhorred. He complained, in his turn, of an unjust, an unfounded, and unjustifiable attack, not of a misrepresentation, but of an invention which no fair, no honest, no honourable, no common sense Member of that House could have the slightest possibility of believing he had ever uttered. He would say no more. He ought to beg pardon of the House if he had gone too far, but he felt it due to his own character, and to that of all the Members of that House, to say something-in reply to the hon. Member, for he did not know what would be the effect on all if they were to allow to pass unanswered not merely misrepresentations but inventions. He thought that such conduct as that on which he had commented deserved the reprobation of all honourable, honest, and intelligent minds.
§ Sir H. Hardingecertainly seldom had to accuse the hon. member for Montrose of invention, and in this instance he only meant to say, that that hon. Member had mistaken his arguments. He had said, that that hon. Member's view of the evidence was a perversion of it, and he was still of that opinion. The hon. Member had argued that a case of sufficient adultery had not been made out, Surely that 1399 was a perversion of the evidence. In stating to the House that calumnies had; been thrown out against his noble friend, he had never meant to put the invention or the circulation of those calumnies upon the hon. Member: he had only accused the hon. Member of taking a most perverted view of the evidence. He found that, in the skirmishes which he and the hon. Member sometimes had together, although he had a pretty good head for an estimate, he had but little talent for a question of morals or of law; and so this evening he had not done himself much credit, either as a moralist or a lawyer. As to what the hon. Member had said regarding the accusation of a want of decency, he had only alluded to what the hon. Member had said regarding English women never denying the exercise of certain privileges to their husbands, and he could not admit that in what he had then said he was wrong.
§ Mr. S. Ricesaid, that whatever disputes there might be as to the propriety of granting this divorce, there was no one who disputed that the present law was bad, and that the judicial duty which the House had just exercised must always be most imperfectly performed by them. The conclusion he took to be this—that if they allowed the Session to pass away without making any attempt to remedy the evil, when all admitted its existence, he thought they would not stand well with the country, nor could they be considered as having discharged their duty to their constituents.
§ Mr. W. Smithhad given his vote for the Bill, because he thought that the facts of the criminality had been so distinctly proved. He trusted most sincerely that this mode of proceeding would be speedily altered. He had been scandalized at the House permitting a person of such respectable character as Miss Steele to be brought to that Bar, and there questioned in a manner that seemed to him unnecessary, and if unnecessary, was most discreditable to the House, and that offered a monstrous and detestable affront to female delicacy. That a woman should be exposed to such an examination, merely because she happened to have been in a situation which no woman need be ashamed of having held, was most distressing; and every one must regret, that because the woman, in whose family she had resided, had not performed her duty, it should have become her duty to be placed at that bar, 1400 in the presence of 300 or 400 Members, and there exposed to have questions put to her about matters of which it was to be supposed she could not, and indeed ought not, to be cognizant. If the examination was unnecessary, it was a disgrace to the House, and ought no longer to be suffered; and that it was unnecessary no one could doubt, for the examination was not taken at their Bar on oath, and if it had been taken elsewhere on oath, and could have been furnished to them for their information. He hoped that an alteration of the mode of proceeding would be speedily carried into effect.
§ Sir G. Clerksaid, the hon. Member for Montrose had misrepresented him very much. He did say that no person could see the articles that appeared in the public press for a few weeks past without coming to the conclusion that there was a studied attempt to influence the decision of that House. And if he did not know the extraordinary talent for misapprehension displayed by the hon. member for Montrose, he should have been led to believe that the extraordinary perversions which he had displayed before the House that evening were not the result of his having read the evidence, but had been taken from some of these publications. But he supposed that they really did arise from the extraordinary formation of his mind.
Mr. Alderman Woodvoted in the minority, because he was of opinion that the noble Lord ought not to receive the relief he claimed. He knew nothing about his unpopularity either in that House, with the country, or with the ladies. Certainly the situation of the noble Lord, whether he were popular or unpopular, was not enviable.
§ Sir H. Hardingerose amid considerable confusion, to order, and observed, that what had been stated was a most foul and atrocious calumny. His reason for rising was, that the hon. Alderman, member for the city of London, appeared to be making observations re-echoing the foul and atrocious calumnies which were in circulation.
Mr. Alderman Woodhad not the slightest intention of doing what the gallant officer appeared to imagine. The observation he had made was in allusion to what had fallen from the hon. and learned member for Tregony, as to the supposed unpopularity 1401 of the noble Lord. For his own part, he was not aware that the noble Lord was unpopular. How could it be imagined that a noble Lord, who filled a high station as a Minister of the Crown, should be unpopular. It would not be doing justice to the noble Lord to suppose that he was an unpopular member of the Ministry [a laugh]. He was merely stating why he gave his vote as he did, and he hoped it would be the last vote of this description which he should be called on to give. He hoped there might be no more bills brought in under such circumstances. Nevertheless he should himself have occasion, perhaps, to bring a bill of the same nature into the House; but he was sure he should have a better case than the present. Surely we were not to be judges in such a case by what passed at the Bar, which, to some of the young men present, might be very agreeable, but perhaps it was not so to the seniors. Probably this was the last Session, if it were not the last case, in which the House would be called on to legislate under such circumstances. He now gave due notice he should have a bill. He was of opinion that the evidence did not bear out the bill, and that there ought to have been further inquiry; but no opposition was offered by the other party, and every thing considered, he thought the noble Lord had been let off very lightly [a laugh].
§ Sir H. Hardingewished to set the hon. Member right as to what he had said. He meant that there had been gross and atrocious calumnies publicly circulated against Lord Ellenborough, stating that he was anxious to re-marry. He repeated, this was a most gross and atrocious calumny. Thinking that the hon. Alderman alluded to those statements, he rose to order.
Mr. Alderman Woodassured the gallant officer that he had not much time for reading newspapers, in which he supposed the statement complained of was contained. For his own part he had certainly never heard of it.
§ Mr. Crokerwished to make a single observation as to the present state of the law with regard to marriage. There was one law for marriage in England, another law of marriage in Scotland, and in Ireland there was no law of marriage at all [a laugh]. As a matter of course, the laws relating to divorce partook of the diversity of the law of marriage, and were affected by the want of law on the subject, 1402 When the law of divorce came under consideration, he should press upon the House the necessity of putting the law of marriage—which was the foundation of all social order—upon an uniform footing in every part of this now United Empire.
§ The question that the Bill do pass was put and agreed to.