§ Dr. Phillimore
said, that the subject which he had to bring forward was one of great importance, for the Law of Divorce in this country was different from that of any other country in Europe. By the Roman Catholic Church, marriage was elevated into a sacrament; and, by a canon, rendered indissoluble even in the case of adultery. But in Protestant Europe the pronouncing of a divorce at once gave the parties concerned the right of marrying again. In England the case was very different. The Ecclesiastical Court could only pronounce a divorce a mensa et thoro, and the party seeking relief entered into a bond that he would not marry again during the life of the other party. Of late years indeed a practice had been growing up of applying to Parliament in each particular case to grant a Bill of Divorce. This was, strictly speaking, a new law for every case; it was a bill of pains and penalties against the offending party, and though it was a remedy, it was not even open to the middle classes of society, who could not afford the vast expense that was incurred in procuring such an act. The first case in which any parliamentary Divorce was applied for was that of the Marquis of Northampton, in the year 1547; he had obtained a Divorce in the Ecclesiastical Court; but the question arose, whether the Reformation having taken place since the last case, the Divorce was a vinculo matrimonii as well as a mensa et thoro. The question was looked upon as so important, that a commission was appointed, consisting of Archbishop Cranmer and nine other divines, to inquire whether the Lady of the Marquis of Northampton was still his wife. The Marquis, without waiting for the decision of the commissioners, married again, alleging, that the Ecclesiastical Divorce was good, and that marriage, which was dissoluble before, had been made a sacrament by the Church of Rome. The decision to which the commission came was, that it was not safe to consider the Divorce as perfect without an act of Parliament. Application was accordingly made to Parliament, and an Act obtained, but Queen 1261 Mary succeeding to the Crown in the following year, it was set aside on the ground that it had been obtained from private views. In the beginning of Queen Elizabeth's reign it was generally held that Ecclesiastical Divorces were valid, and such continued to be the law of the country till the end of her reign. It was then totally changed, and it was held that Ecclesiastical Courts could not errant Divorces à vinculo matrimonii. He would borrow the language of the learned re-porter, Mr. Sergeant Salkeld, upon whose authority he mentioned the fact—to express it, Sergeant Salkeld said, "A Divorce for Adultery was anciently à vinculo matrimonii, and therefore in the beginning of the reign of Queen Elizabeth, the opinion of the Church of England was, that after a Divorce the parties might marry again, but in Foljambe's case, Anno 44, Eliz. in the Star Chamber, that opinion was changed, and Archbishop Bancroft upon the advice of Divines, held that Adultery was only a cause of Divorce a mensa et thoro, 3rd Salkeld, p. 137." By a law passed in the 44th year of Elizabeth's reign, and the law had not since been altered, the authority of the Ecclesiastical Law was fully restored. The 107th Canon of the Church, which was passed a few years afterwards, declared that—"In all sentences pronounced only for divorce and separation a thoro et mensa, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently, neither shall they, during each other's life, contract matrimony with any other person. And for the better observation of the last clause, the said sentence of Divorce shall not be pronounced until the party or parties requiring the same have given good and sufficient caution and security into the Court that they would not any way break or transgress the restraint of prohibition."—This Canon was then fully established as the law, and it was thus fully decided, both by the law and the decision in Foljambe's case, that Divorce could not be obtained in this country except only from bed and board, a mensa et thoro, and not a vinculo matrimonii. This made the law of England similar to the law on the subject of Divorce in most parts of the Continent, and it continued in this state till Charles the 2nd's time, when the celebrated case of Lord de Roos Occurred, in 1669, and then, by a special 1262 Act of Parliament, a Divorce was procured for that nobleman. The Duke of Norfolk's case, which was the next remarkable one, occurred in 1692, and occasioned great discussion, he being an individual of great importance. It was in 1692 that the Duke of Norfolk brought forward his Bill of Divorce; but the Bill was thown out; and it was the year 1700 before he ventured to repeat his efforts, having previously brought an action for damages at Common Law; and then, after protracted debates, the bill was carried. He only referred to that measure to show what was the state of the law and the state of feeling in the country on the subject of divorce, up to that period. He found that for one century and a half, from the Reformation as established by Elizabeth to the accession of George 1st there were not more than five Divorce bills carried through Parliament. He believed that would be found an accurate account. Divorce was never then granted, except to persons of high rank; and in the Duke of Norfolk's case it was expressly stated, in the preamble to the bill, that one reason for granting the Divorce was, that the Duchess was barren, and it was not fitting that such a noble family should be extinct. The privilege of divorce was then exclusively confined to the very highest classes, and granted to them only as a great favour, and under special considerations. After the accession of the House of Hanover, a greater laxity was introduced, and a greater number of Divorce bills was passed. From the year 1715 to the year 1775, a period of sixty years, sixty Divorce bills were passed; and from 1775 to 1800, during a period of twenty-five years, there were seventy-four such bills passed. From 1800 up to the present time, he found that there had been between eighty and ninety passed. This showed that there had been a great increase of Divorce bills, owing principally, he believed, to the great increase of wealth, and to the facility with which Parliament had gradually come to grant such bills. The great expense of such measures, and the facility with which Parliament granted Divorce bills to parties capable of paying the expenses, made it impossible that the Legislature should not feel that some alteration of the law was necessary; and several attempts, all of which had begun in the House of Lords, had been made to alter the law. In 1771, a bill was brought into that House by the 1263 Duke of Athol, the preamble of which stated that it was a remedial bill, made necessary by the scandalous frequency of Divorce bills. In 1779 the Bishop of Llandaff, Dr. Barrington, who was afterwards Bishop of London, brought in a bill, and the preamble to his bill stated that the great frequency of applications for divorce made some remedy necessary. Both these bills were passed through the House of Lords, and sent down to the House of Commons, where they were read a second time, but they were lost in a committee. In 1800 Lord Auckland brought in the bill which bore his name, and which occasioned a great deal of discussion. That noble Lord had, for the object of his bill, to make adultery a misdemeanour at common law, and he urged, as a reason for this, the same grounds as had been given by the other Lords for their bills—namely, the frequency of adultery and application for divorce. The discussion on that bill might safely be referred to—since the eminent persons who took part in it were now so far removed from the scene that their opinions were of great weight, and of great importance. Many of the persons who delived their sentiments in the debates on Lord Auckland's bill, were men whose opinions would be of value at any time; and, having been delivered at a considerable distance from the present time, partook of none of the passions of the moment, and might serve as guides to their decision. Lord Grenville, whose opinions on all subjects deserved attention, stated, on an early stage of that debate, that, "his learned friend on the Woolsack, and the other two learned Lords who presided in the courts of law, had declared that the greatest abuses were committed, and that at present there was no remedy for these abuses; that in many cases there was collusion between the parties, and that in no instance was there a possibility of adequately punishing the guilty. They found their proceedings on the Bench, in such cases, a farce and a mockery." This Lord Grenville represented to be the opinion of the great law Lords of that day, and he added, "The Ecclesiastical Courts were equally deficient, there was no way in which the injured party could obtain redress, or vice could receive its punishment. He had long been sensible of these truths, nor had he ever been present when a Divorce bill was passed, that he 1264 did not think the House disgraced and degraded." At another stage of the bill Lord Eldon deprecated its rejection, "because he was certain that nine out of every ten cases of adultery that came into the Courts below, or to that bar, were founded on the most infamous collusion, and that, as the law stood, it was a farce and a mockery; most of the cases being previously settled in some room in the City; and that Juries were called to give exemplary damages, which damages were never paid, nor expected to be paid by the injured husband." It was impossible to know that these were the opinions of the Law Authorities of that day, and not be convinced thst some alteration of the law was necessary. A year afterwards, on the occasion of discussing a Divorce bill, Lord Rosslyn observed, that "application for Divorce bills had, of late years, been so frequently introduced, that they had been considered almost as mere matters of course. It was highly necessary, therefore, to check their progress, and, if possible, to resist the torrent that threatened to bear down all morality and virtue." These were the opinions of three very competent persons, two of them great law-officers, and one a distinguished senator; and the House would be well aware that, since that time the evil had not diminished, and now, more than ever, required a remedy. He referred hon. Members to their own experience to be satisfied that the same defects still existed which Lord Eldon, and the other high authorities he had quoted, bore their testimony to the necessity of amending. Did not the House feel itself degraded by every Divorce bill? It was either a mere mockery of Legislation, to which nobody attended, or else the House was made the instrument for covering the guilty connivance of two parties. That things were still in the same state he might prove by the recent case of Lord Ellenborough's divorce. He did not wish to revive the unpleasant discussions on that bill, but he would remind the House of them to show how incompetent it was to discharge judicial functions. It was said, on one hand, that Lord Ellenborough was the kindest of husbands; and on the other, that he had neglected his lady. Some Members spoke of collusion, and said that Lord and Lady Ellenborough came together to seek a divorce; all these assertions were made by respectable persons, and showed how necessary it was 1265 that some other tribunal should be had recourse to. Testimony, too, was given on that and other cases, which, without sifting, would never have been received in an Ecclesiastical Court or Courts of Common Law. This case was an illustration of the unfitness of the House to examine witnesses on such an important question. But if the House could not examine witnesses effectually, and sift their testimony to the bottom, what better was it than an idle mockery to bring a Divorce bill before it for its decision? That House was, therefore, not a proper place for deciding questions of divorce; and that opinion would be confirmed if he stated the great precautions used by the House of Lords, which were not used by the House of Commons, in introducing Divorce bills. By one of the Standing Orders of the House of Lords it was imperatively commanded that no bill should be introduced which did not contain a clause that neither the adulterer nor the adulteress should marry again. This Standing Order was adhered to. No bill could be introduced without this clause, though in the progress of the bill it was regularly struck out. Another Standing Order of the House of Lords of a graver character showed how incompetent the House of Commons was to exercise judicial functions, for that House could carry no such regulation into execution. By a Standing Order, dated 25th March, 1798, the Lords ordered, that before the second reading or the bill, the party praying for the divorce should attend at the bar of the House to be examined, if their Lordships should think fit, in order to ascertain if then were any collusion, direct or indirect, or if the act of adultery were known to the husband, or if there were any collusion between the wife and him to procure a sentence of divorce before an Ecclesiastical Court, or procure a verdict a Common Law; and that the parties might be examined as to how they were living at the time of the act of adultery—if they were previously separated, or if the husband performed all his conjugal duties affording his wife his confidence and protection. This was a Standing Order c the House of Lords, and every petitioner for a bill of Divorce received a copy c this Order, and a notice to attend. Compliance with this Order was, in truth, dispensed with, but it showed how necessary it was to have proof that there was 1266 no collusion, and how strict the House was in providing that there should be no collusion betwixt husband and wife. There were other circumstances connected with the popular form of the House of Commons which made it unfit for such investigations. Divorce bills, for example, were sometimes made the vehicle for expressing popular sentiments. Let the House recollect, that the Divorce bill of Lord de Robs was discussed three or four Sessions, and was made the watchword of a party, it being considered, as test of the question, whether Charles 2nd was to be divorced from his Queen or not. The Duke of York's party opposed the Divorce bill, and it was supported by his enemies, as it might give rise to a means of excluding him from the succession. The same sort of thing occurred at the time when the Duke of Norfolk's Divorce bill was brought in. The Duchess was a Jacobite, and the Duke a friend of the Revolution. She was a Roman Catholic, and he was a Protestant, so that this question was made the banner under which party feelings were enlisted. There was always, even yet, a canvassing for opinions, and a soliciting of support for such bills, as would be disgraceful even in a turnpike act, but was most discreditable to the House, when it was acting as a solemn court of judicature. The next point he would mention was the inequality of the law. Nothing was better established as a principle of our law, than that it should be equal for all parties, for high and low, for poor and rich, and that was the case throughout the law, except in the Law for Divorce. He had asked a few days ago the expense of a common Divorce bill, which had nothing peculiar in it, and he was told, that the expense was between 600l. and 700l. That was an expense which no person in the middle and lower ranks of life could possibly submit to. What made it more galling here was, that if a man went across the borders into Scotland, or if his wife committed adultery there, he could obtain a Divorce for 10l. or 15l. He had received this information on good authority, and he knew that 15l. was the extreme expense for a Divorce in Scotland in ordinary cases. It was clear, then, that some remedy for our law of Divorce was required; and in speaking of remedies, he did not mean to go into the question whether wives should be allowed to divorce their husbands, which, in cases 1267 of incestuous adultery, the House of Lords had permitted; neither would he enter into the question whether or not an adulterer should be allowed to marry again. It would not be right in him, a humble individual, to bring forward any specific remedy; but he knew that the proposition he should make, had the approbation of others. The impression on his mind was, that the question of Divorce ought to be referred altogether to the ecclesiastical courts; and that they who decided the separation a mensa et thoro, should also decide that a vinculo matrimonii. That was his own impression, and he had the satisfaction of knowing, that Lord Thurlow held a similar opinion. He had stated so in the debate on Lord Auckland's bill, in 1800; or a particular tribunal might be appointed to decide the question of Divorce after a decision of the ecclesiastical courts. Some persons proposed to refer the question immediately to the House of Lords, and allow its decision to be final. There were two points he was, however, anxious to guard against: he wished to have it distinctly understood, that it ought to be, in his opinion, the principle of the law—that marriage was indissoluble. The interests of families, of the whole community composed of families, demanded that marriage should be declared indissoluble. The next point to which he wished to advert was this—that, in his opinion, no other cause but adultery should be allowed to be a sufficient ground for a Divorce. The hon. and learned Member again referred to the hardship to which people were now exposed, by the impossibility of getting rid of an unfaithful wife, and instanced in particular clergymen, and landed gentlemen of small fortune, living in retirement and out of the bustle and vice of a town, who might have the misfortune of an unfaithful partner; he noticed the great misery which was caused by adverse tempers, and which the indissolubility of marriage made parties endeavour to bear; he quoted the several attempts which had been made to improve the law in 1771, in 1779, and in 1800, and concluded by the following observations:—He had thus endeavoured to put the House in possession of his views on, perhaps, the most important subject that legislation had to deal with. He had directed the attention of the House to the present state of the law and the evils it Occasioned; he bad traced Divorce bills 1268 from their origin and small beginnings, from a few solitary instances scattered through centuries to their present frequency, Quœ ab exiguis profecta initiis ex creverint ut jam magnitudine laborent sua; and he called upon the House, in reason and justice, and even decency, to go along with him in finding a remedy for this evil. From an exclusive privilege for rank and station Divorce bills had become the remedy for the evils attendant on matrimony, adopted by the middle classes, by all who could command the pecuniary means, and had any reason for calling on the House to interpose its authority. He apologised for having so long detained the House, and then moved "That an humble Address be presented to his Majesty, praying that his Majesty would be pleased to direct the Commissioners appointed to inquire into the state of the Ecclesiastical Courts in England and Wales, to take into their consideration the state of the Law of Divorce, to consider the expediency of enabling persons to obtain Divorce from the bonds of matrimony, in cases of adultery, by legal process in Courts of competent jurisdiction."
§ Sir Charles Wetherell
began his remarks by objecting generally to commissions to inquire into the law, contending that the appointment of them involved an admission of something requiring to be remedied. He had never approved of commissions to reform any abstract point of law. His hon. and learned friend, with all his talents, had failed to suggest a remedy, and so had other learned men of great talents. The evil arose out of our Constitution, which did not permit any court to exercise legislative power, which granting a Divorce implied. The hon. and learned Member entered into a brief history of the marriage law in England, and its difference from the marriage law of other countries, remarking that marriage was indissoluble in Roman Catholic countries. In Rome there was a tribunal called the Holy-office, which did grant Divorces for certain cases, in which the parties were held incapacitated to contract marriage, but never granted it for adultery. The Pope had sometimes granted Divorces on political grounds, but up to the time he was speaking, the Pope had never, he believed, granted a Divorce on account of adultery. The Pope did, however, grant a Divorce to our Henry 8th in former times, and he had more recently granted a Divorce on 1269 political grounds to Napoleon Bonaparte. Independent of these cases, however, it was not the custom of the Church of Rome to grant Divorces on any account. In this Protestant State no Divorce was ever allowed, unless by the way of a legislative provision, and he could not, therefore, avoid thinking, that if they adopted the plan of his hon. friend, they would be letting in a wild, latitudinarian, and mischievous principle, not recognised hitherto by any country in the world. Divorces a vinculo matrimonii had never been allowed in this country, unless after a solemn investigation in Parliament; but if they were once, by the institution of a cheap kind of Pie Poudre court, to allow all, who had a small sum to spend, the privilege of being separated a vinculo matrimonii, it would follow as a necessary consequence, that the lower classes, whose morals were more corrupt, and whose principles on these subjects were more lax than those of the higher classes, would be continually applying for Divorces, while the facility of obtaining them at a small expense would increase the immorality of adultery, and, indeed, give encouragement to the commission of that offence. It was said, however, that almost all the cases which came before Parliament at present, were cases in which the parties colluded to procure a Divorce. Now if the higher classes did collude in this manner—a fact of which he saw no evidence—if they colluded to procure a Divorce, when the cost of that proceeding was great, would they collude less when the expense would become comparatively small? The great question for their consideration was, whether the law should or should not remain as it was. And if it was a truth that the noble Lord (Eldon) had declared the proportion of collusive cases to be nine out of every ten which came before Parliament, he confessed it was necessary the House should interfere. He denied, however, the justice of the assertion, that the proportion of collusive cases was so great, and he equally denied the propriety of the assumption, that the Houses of Lords and Commons were unable, by the exercise of their judgment, to detect the collusion if it existed, or that their powers would be delegated with greater propriety to any inferior court, constituted in any manner whatever. He was not disposed to allow that the House of Commons did not possess ability, acute- 1270 ness, and intelligence sufficient to detect any species of collusion. If Parliament were unable to institute the accurate and critical examination into the circumstances of a Divorce necessary to guard against its being a matter of collusion, how, he should like to know, would his hon. and learned friend's commission remedy the defect? What additional machinery of efficiency was there contained in his hon. and learned friend's plan to supply the deficiency of the present legislative mode of proceeding? He was sure there was none, and therefore could not agree to transfer to a subordinate court a power which should more properly be exercised by Parliament. While he stated this, he was free to admit that the House of Commons ought to have used Standing Orders of its own to regulate the method of proceeding as to Divorce bills, and that a preliminary inquiry by a committee might be advantageous. But he should not, he repeated, consent to take from the present tribunal the sole power of granting Divorces, till it was indisputably proved to him that the Divorce Statutes which had been enacted by Parliament, were all inefficient in cases of collusion, and that the power had been abused for political purposes—that, in a word, Parliament was incompetent to the due and impartial exercise of all the powers which his hon. and learned friend would transfer to an inferior court of inquiry. That the present legislative mode of Divorce had been abused in former times he did not mean to gainsay; but he would deny that it had been so abused in later times, particularly since the accession of his late Majesty. Neither did it appear to him that the present legislative mode of Divorce tended to promote adulteries, that is, occasions for Divorce bills. Upon this point there existed a great diversity of opinion among the wisest and most experienced judges. He need not go further than quote the names of two of the highest authorities upon this and analogous subjects, Lords Stowell and Eldon, who were, it was well known, notwithstanding the strength of their fraternal regard for each other, at daggers drawn, so to speak, as to what tended to promote occasions for Divorce. If men of such unrivalled eminence in learning, in morals, in intellect, in taste, in feeling, and in judgment, maintained discrepant opinions as to what should or should not constitute a just ground of Divorce, how, 1271 he should like to know, with due respect for the talents and attainments of those learned Gentlemen to whom his learned friend would refer the inquiry, could the deficiency felt to be irremovable by the ablest Members of both Houses of Parliament, be done away with by his hon. and learned friend's proposed commission? In objecting to it, he begged leave to say, that he did not altogether deny the existence of cases of collusion in matters of this kind, and therefore he should support any plan for making the inquiry more strict than at present into the grounds of Divorce bills. He thought this end would be obtained by the preliminary committee of inquiry, of which he had before spoken. As he could not approve of his learned friend's Motion, he hoped he would not push it to a division, as he should be sorry to vote against him.
§ Mr. O'Connell
said, he agreed with the hon. and learned Gentleman who had just sat down, in opposing the Motion, though he differed from him in the grounds of his opposition. He wished with the hon. Mover that the poor should be placed upon the same footing with the rich in regard to divorce, but he would accomplish that, not by giving it to the poor, but by refusing it to the rich. He thought the better way would be to make the marriage tie perfectly indissoluble. It was so by the common law; for up to the time of the Reformation no marriage could be dissolved. It was so by the rule of the Catholic Church, and by that of the Protestant Church also. It was true that divorces had been ganted in the Catholic Church, but not a vinculo matrimonii. They were only granted in such cases, for example insanity, as rendered the marriage invalid ab initio. The Pope had no authority to divorce a marriage upon any other ground, for his authority did not exceed that of other Bishops. But the hon. and learned Gentleman had said, that the Pope had granted a divorce to Henry 8th. In that the hon. and learned Gentleman was mistaken; the Pope had, on the contrary, refused the divorce. If he had not refused it the hon. and learned Gentleman might have gone to mass last Sunday, as he had done; for the refusal had contributed much to hasten the Reformation. Again, his hon. and learned friend had said, that the Pope had dissolved the marriage of Bonaparte; but the principle on which that divorce rested was this, that the first mar- 1272 riage with Josephine was a mere republican marriage, having nothing sacramental or religious in its nature. It was another instance of marriage invalidated ab initio; so that there was no divorce in the case of Napoleon, who was himself a sort of honorary member of all religions. But if they regarded the subject merely as statesmen, he would ask, were the upper classes of society, who could obtain divorces, more virtuous than the lower who could not? No man would say that they were. And was not divorce a temptation to adultery? Did it not give another argument to the seducer, when it enabled him to say, that he would restore the object of his passion to her rank again, or, perhaps, raise her to a higher rank than before? The Christian-law, the Canon-law, the Common-law, and the law both of the Catholic and the Protestant Churches were all upon his side, and he therefore hoped that other Members, more influential than himself, would assist in opposing the present Motion.
§ Mr. Spring Rice
rose to support the Motion of his learned friend, Dr. Phillimore. If he considered the question as one of law only, it would be, indeed, presumptuous on his part to interfere in the discussion; but he felt that the proposition involved many other considerations, some of which went beyond, and others were infinitely above, any questions purely of a legal character. There were two objections taken to the Motion by the learned Gentleman who had preceded him. If the objections were admissible, he was bound to confess they were conclusive. But he differed in essentials from the doctrines lately advanced. If, indeed, there were persons who believed, with the learned member for Clare, that the marriage contract should be indissoluble under all circumstances, this class were not only bound to oppose the present Motion, but to oppose every proposition for a single divorce. He did not anticipate, however, that this doctrine would find many supporters in the House or in the country. Again, if with the learned member for Plympton, persons were really contented with the legislative tribunal which at present decided their cases, they were undoubtedly warranted and justified in resisting any change. But when he considered the events of the present Session—when he recollected, that during the progress of every Divorce bill there had been on all sides one universal 1273 exclamation against the mode of procedure—when every Gentleman had protested against examinations at the bar, as most imperfect modes of doing justice, of discovering the truth, or detecting collusion—when, above all, he referred to the high authorities quoted by his learned friend the Mover, all concurring in one opinion, in affirming the necessity of reform, he could not bring himself to believe that the House would refuse to apply itself to a practical remedy correcting this great practical evil. It was time to free the House from the disgrace of these proceedings. In doing so, in fact, it would be only an application of a principle already recognized. The House, in the Grenville Act, had acted on the impossibility of doing justice by examinations at the bar. In that case undoubtedly a Select Committee was substituted for the House; but a Select Committee of a judicial character, sworn to decide impartially, and having the power of examining witnesses on oath. The selection of a committee, rather than the appointment of a fixed Court of Justice, was necessary in election cases, because the privileges of the House were concerned, and these could not lightly be intrusted to any extra-parliamentary authority. But such an objection did not apply to the creation of a tribunal for divorce cases. His learned friend, the member for Plympton, was entirely in error, in considering that the course now recommended was without example. The fact was, that it was the English practice that was without precedent. All Protestant Europe, except South Britain and Ireland, had adopted a different practice, and had laid down a precedent strictly in accordance with his hon. friend's Motion. He entreated the House to consider that one conclusive argument against the present system had not been answered. It was not denied that the present system gave a remedy to the rich only, and that the middle orders of society, and the poorer classes, whose cases might be equally deserving of commiseration, were left wholly without relief. Could this be justified or tolerated by those who claimed to be Representatives of the people? It was suggested that the imperfections of the system might be corrected by the adoption of some stricter Standing Orders. The total inadequacy of such a remedy was abundantly proved by the proceedings of the House of Lords. The Standing Orders of that House had 1274 been framed in the spirit of justice and precaution; but how were they effectual? If any thing were wanting to add to the disgrace of the present system, it would be the adoption of such Standing Orders, to be afterwards suspended or evaded to facilitate the passing of every Divorce bill. This was adding insult to injury. The member for Plympton had spoken of the immorality which facilities of divorce would occasion; how could such a statement be made with the example of Scotland before our eyes? Were the people of Scotland less moral than their southern neighbours? Was the marriage tie less respected in Scotland than in England? He doubted the fact. The member for Plympton had spoken of what he considered the immoral habits of the middle and lower classes, as compared with their superiors. This again he begged expressly to deny. He believed that the virtues of domestic life were by no means to be found in the highest degree of development among the classes of fashionable society—those privileged persons for whom the facilities of parliamentary divorces were now reserved. On all those grounds, with a view to strict and impartial justice—with a view to relieve Parliament from the disgrace of undertaking duties which it could not satisfactorily perform—he supported the present Motion, the object of which was not to decide absolutely upon any question, but to obtain the information on which the House might legislate safely hereafter. It was not necessary to suggest that collusion frequently existed to recommend this course; it was enough to show that the law was unjust because it was unequal; it was enough to show that the public interest was not secured, and that the character and dignity of the House were lowered in the opinion of all reflecting and rational men.
The Solicitor General
said, that it was his intention to trespass on the attention of the House with only a few observations. He would first remind his hon. and learned friend who brought forward this question, that the commission to which he proposed to refer the consideration of this most important subject was appointed simply to inquire into the state of the Ecclesiastical Courts. Such being the case, the House ought not to assume that that commission could conveniently enter into the consideration of another subject. It would not be right for the House to induce that commis- 1275 sion to enter upon the consideration of a subject to which it had not previously addressed itself, and which did not come within the scope of its original appointment. Admitting the commissioners to be highly competent to consider the subject, it would not be fair to throw upon the members of that commission, without first consulting them, the consideration of a question of this magnitude. He wished that his hon. and learned friend, who possessed great knowledge and many opportunities, had taken another mode of bringing forward this question; that he had considered in detail the laws relating to marriage and divorce, and had prepared a bill to meet the evils of the present system. If his views on this question were right, he might be sure that the best way to try them would be to embody them in a bill. He hoped that his hon. friend would do that on some future occasion, and give the House an opportunity of discussing his views in detail. With respect to the law which existed on this subject in Scotland, he had no fault to find. It had been long in operation, it had certainly not produced any evils, and it would be most dangerous to touch it as it related to Scotland; but it would be another thing if it were proposed to extend that law to England. He could not agree with the hon. and learned member for Clare, that there should be no law to enable a party to obtain a divorce, but every one must agree that the object of the law, in the first instance, was to secure the descent of property in high and mighty families. It was not, then, the question, whether that object were good or bad, but that was the ground, and the sole ground, upon which relief by a divorce was given in the first instance. He, for one, should be sorry to see a Court established for trying the mere question of Divorce between parties, being persuaded if such a Court were established, that questions of Divorce would be as frequently brought for decision, as questions of property in other Courts. But as it was desirable to throw impediments in the way of divorces, rather than to render it easy for persons of every rank to obtain that relief, he should certainly always set his face against appointing a separate Court to give cheap divorce to the people. It had been said that, under the present system, there was one law for the rich and another for the poor, and this consideration was so revolting to him, that he could 1276 not uphold such a system, if he did not conscientiously believe that, by extending the remedy, the Legislature would only increase the mischief. Under such a system as had been suggested, what would prevent collusive divorces? The existing law in Scotland had been referred to, in answer to that question. He did not know enough of the state of society in that country to speak positively on the subject; but it might be such, that the law permitting divorce might be of no injury to public morality. It was said, that the law operates well in Scotland, but he could not thence conclude that the same law would operate advantageously in England. The question was, whether the present state of society in this country would allow of a law, affording a facility of obtaining divorces to all classes. In his opinion, such a law would be attended with more injury than benefit. But, independently of the merits of this question, there was another difficulty. Ought the House to burthen the Commissioners appointed to inquire into the present state of the ecclesiastical courts with a different duty—a duty that, perhaps, they were not prepared to accept, and might even think themselves not competent to execute. He would rather that his hon. and learned friend would turn his attention to this subject again; and introduce it to the House in the shape of a bill. That it was a difficult task he was aware; but because it was difficult, he invited his hon. and learned friend to undertake it, being sure that there was no better test of the correctness of opinions, than putting them on paper, and bringing them before the House for its consideration; and being also sure that if there were any evils arising from the present system, for which a practical remedy could be found, no person would be more competent to devise that remedy and recommend it to the House than his hon. and learned friend.
did not think that it was consistent with his duty to remain silent altogether on this most important subject. It was not his intention, however, to enter into a discussion on many of the important subjects which had been referred to as connected with this question, but rather to direct the attention of the House to the proposition of his hon. and learned friend, which went to refer the whole subject of the law relating to divorces, to the Ecclesiastical Commission. 1277 Only a few months had elapsed since that Commission commenced its sittings; and he must observe, being confident that he should be borne out by every other Member of the Commission who held a seat in the House, that the task already committed to it was so complicated and difficult, as to require all the time and attention which the other avocations of the Commissioners would admit of their bestowing on it; so that there was scarcely a hope that they could complete it within a reasonable time, with satisfaction to themselves, or benefit to the country. In order to enable the House to understand this, he must observe that the establishment of the ecclesiastical system, as asted upon at this day by our Ecclesiastical Courts, had undergone no alteration, nor indeed any important revision, since the time of the Reformation. There was still the same system, and the same machinery for carrying that system into operation, which existed after the first days of the Reformation. The views of the Common-law courts, however, had within that period fluctuated on various points connected with the proceedings in the Ecclesiastical Courts; so that there was a complication of facts and proceedings which must become the subject of close examination and much consideration, before any remedial measure could be proposed, admitting that there were defects in this system. Upon this ground alone, as a member of the Ecclesiastical Commission, he should hope that the House would not add to the labours which already devolved on it, and obstruct the progress of those labours which it had already begun. There were other, and various considerations, which would make him unwilling that this subject should be referred to the Ecclesiastical Commissioners, even if they had greater leisure and ability to devote to it. It would not be expedient to throw on the Ecclesiastical Commissioners the burthen of considering so many doubtful points as were connected with the important subject of divorce. Among other things, they would have to consider this great and important question, whether a complete divorce from the bond of marriage, could be granted by any human tribunal consistently with the doctrines of our religion. Without venturing to offer any opinion of his own on so grave and serious a question, he might observe that it had often been discussed, but never satisfactorily decided. Subsequent to the Reformation, 1278 for thirty or forty years, the ecclesiastical tribunals considered that they were justified in granting divorces, but it was afterwards concluded that there was no such power in any tribunal. The question, to which he had adverted was however a subject of consideration, rather for those, who had made the religious doctrines which prevailed in this country their particular study, than for the professional gentlemen who composed the commission. For his own part, he gave no opinion on it; but there was nothing he should deprecate more than having such a question referred to an Ecclesiastical Commission. If it were to come before the House he should endeavour to discharge his duty as a Member of Parliament; but he should deprecate from the bottom of his heart, being called upon to decide a moral point on which the most learned persons had not been able to agree. As to the expediency of altering the law, he did not deny that very great evils arose from its present state, but he had many doubts as to the fitting remedy; with respect to collusion, he did not believe that there had occurred many instances of it. During the last fifteen years he had been cognizant of the particulars of every case that had been brought before the House, with the exception, perhaps, of about half a dozen; and, according to his view of collusion, he was not acquainted with more than three, or at the utmost four cases, which would justify suspecting it, and he could not of his own knowledge say that there had been one case in which there really was collusion. This was his opinion, founded on experience; but perhaps he ought to say what collusion was in his opinion, for it appeared to him that some gentlemen entertained a very mistaken notion of it. That a Divorce was sometimes obtained in the Ecclesiastical Courts, or that a bill for a Divorce now and then passed that House, with the consent and at the desire of the adulterer, or the adulteress and her friends, was not, in his humble judgment, collusion. By "collusion," he understood a case where one of the parties to a criminal suit in the Ecclesiastical Court was guilty of criminal acquiescence or negligence, with respect to the act of adultery. And here he would observe, that connivance or collusion—call it which you will—was a bar to Divorce in the Ecclesiastical Courts; and whenever that appeared, in the slightest degree, he was among the 1279 first to acknowledge that it ought to put an end to the proceeding by which a remedy was sought to be obtained. No man ought to enter the Ecclesiastical Court, or that House as an applicant for a divorce, if he were, in the slightest degree, a party to his own dishonour, or had been in any way the cause of his disgrace and his partner's guilt. If such a case should ever come before the House, whether the party applying for relief were high or low; whether he belong to one side of the House or the other, he should regard himself as guilty of a dereliction of a most sacred duty, if he did not oppose the bill. The case of Lord Ellenborough had been alluded to. In that case he supported the bill; and he did not hesitate to say, that he should do so again if called upon. There was not the slightest reason to impute criminal neglect, much less that most disgraceful of all crimes, criminal connivance, to the husband in that case. But it had been said, that because Lady Ellenborough's friends wished the bill to pass, that it ought not to have been passed, How that proposition could be sustained, he was at a loss to conceive. It was consistent with human nature, and with the absence of all crime on the part of the husband, that Lady Ellenborough, or any other lady so situated, as well as her friends should wish a bill of that description to pass, in order that she might be restored, in some measure to society, by her union with the party with whom the crime had been committed. And he did not hesitate to say, that in future, if a case should arise where an avowal of such a motive was made openly, and in the most distinct terms, it would not operate in his mind in the slightest degree, against a bill for a Divorce. The most important consideration, in such cases was the conduct of the husband previous to the commission of the adultery; whether he had evinced a due regard for his own honour; and bestowed a proper attention on the conduct of his wife, according to the customs of that rank in society in which the parties moved. If the husband were no more to blame for negligence, than persons in ordinary circumstances, and in the same rank, he for one would not say that relief should not be given. A great deal had been said of the law and custom of Scotland with respect to Divorces, which was described to be well suited to its institutions and to the habits and 1280 feeling of the people. He was not sufficiently acquainted with the operation of the Scottish law to deny that, but there was probably no Gentleman in this House, with sufficient talent and eloquence to persuade him that England ought to adopt either the law of marriage, or the law of divorce, which prevailed in that country. The law of marriage in Scotland gave a facility to unions, which the parties entering into afterwards, greatly lamented, and the law of divorce had the effect of affording to those repenting parties the easy means of dissolving the unions thus entered into. Without discussing the propriety of granting those facilities in Scotland, he might at all events assert, that the Jaw of Scotland was not suited to this country. As to the argument of the hon. and learned member for Clare, that Divorces were contrary to the doctrines of the Catholic Church, he believed that England was the only Protestant country where Divorces were not granted à vinculo by individual judges. The hon. and learned member for Clare, said, that the law of the Catholic Church was opposed to Divorces altogether; but he maintained that the members of no religious persuasion, and that no religion had ever played fast and loose with marriage, as the Catholic Church had done. The doctrines professed by persons belonging to that Church on this subject had done more to weaken the sacred tie of marriage than all the Divorce bills that ever had passed, or ever would pass through that House. There was one point on which he agreed with his hon. and learned friend. He admitted that it was the great misfortune of the present law, that it opened the door to the rich and not to the poor. This certainly was a striking objection; and a still greater objection perhaps was, that whilst the injured husband was allowed the power of resorting to Parliament for relief, the same facilities were refused to the unoffending and equally injured wife, unless indeed in those horrible cases where an incestuous connexion was proved to have taken place. Ever since he had an opportunity of considering this question, this anomaly had struck him, and he never could reconcile the principle to justice or common sense by which the Legislature refused that relief to the wife, which was granted to the husband. If there ought to be any distinction, or any 1281 greater favour shewn to one party than to the other, it should be to the wife, as the weaker party. He wished that this subject should be brought forward in another shape, and he agreed with his hon. and learned friend the Solicitor General, that it would be more desirable that his hon. and learned friend near him, would bring forward something like a practical measure, in the form of a bill. The House would then see at once the difficulties which arose from the existing state of the law, the mischief and its extent, and the operation of the proposed remedy. Such a measure would be most advantageous; but as long as the House confined itself to desultory disquisitions of that kind, it was impossible to arrive at any satisfactory result. If the subject were referred to the Ecclesiastical Commission, he was apprehensive the time of the commissioners was so fully occupied, that they could not give this subject sufficient consideration; and even if they had abundance of leisure, so much difference of opinion and feeling would be likely to exist on this subject, and so great a repugnance would there be to deciding on it, that the commissioners would never, he believed, propose any definite measure. They would probably content themselves with pointing out a number of remedial measures, leaving it for the House to judge for itself which it would be best to adopt. He would not then trespass at greater length on the attention of the House; but he would suggest to his hon. and learned friend to withdraw his present Motion, for he was satisfied that no really beneficial result could arise from pressing it to a division.
§ Mr. C. W. Wynn
said, that if he thought, with his hon. and learned friend who last addressed the House, that no beneficial result would arise from referring this subject to a Commission, which should report to the King and Parliament, the considerations that might occur to the commissioners on the present, state of the law; and the various remedial measures which might suggest themselves; leaving it to Parliament to pronounce which of those remedial measures it should consider best-calculated to meet the existing evils; if he thought no benefit would result from that, he should advise his hon. and learned friend to withdraw his Motion. If the commission were to do nothing more than inquire, in his opinion great and most important advantages would 1282 be derived from it. He could not agree with his hon. and learned friend, the Solicitor General, that there would be any irregularity in throwing this subject upon the consideration of those persons of whom the Ecclesiastical Commission was composed. No persons could be chosen better calculated to discuss the subject and to throw light on it. Nor did he see any incongruity in referring the question to them, if they were possessed of knowledge and experience which fitted them, better than other individuals, to consider this question. They had to report on the state of the Ecclesiastical Courts, and the subject of Divorce was somewhat allied to the subject of their present inquiries. However, it seemed to him to be only a question of form, whether the subject should be referred to a new commission, or to the commission on the Ecclesiastical Courts. It was not important, in his opinion, to which it was referred, as there could be no doubt that the inquiry would be equally well managed in either case. Another difficulty, started by his hon. and learned friend the member for Tregony (Dr. Lushington) was, that if we referred this subject to a commission, we should refer a great and important religious question, namely, whether, consistently with the doctrines of religion, the remedy of a Divorce â vinculo could be granted by any tribunal? He was not aware that such a question need be referred to any commission, nor did it appear to him that such a question would be likely to arise. The question had been indeed already decided by the undisputed practice of Parliament for a series of years. Since 1775, no less than 150 Divorce bills had passed through Parliament. All the members of that profession to which his hon. and learned friend belonged who practised in the Ecclesiastical Courts, or in the other House; all the Members of that House, the Bishops, the Judges, and all the Members of either House of Parliament, had been assenting parties to the practice of granting relief in the way alluded to, though his hon. and learned friend insinuated that doing so was contrary to religion. He did not wish to mix up any particular case with this discussion; but his hon. and learned friend, as well as other Members, had alluded to a case which came before the House during the present Session; and his hon. and learned friend said, he sup- 1283 ported that measure. In doing that, however, he supported the principle that marriage might be dissolved. That his hon. and learned friend entertained any doubt, whether or not it was contrary to religion to pass those bills, he could not suppose, for, if his hon. and learned friend thought it contrary to religion, he would not have supported the bill in question. He could not believe, therefore, that the commissioners would have any thing to do with the question to which his hon. and learned friend had referred. He could not see, that any doubtful question arose in cases where no blame was attributable to the party seeking relief; and the only question for the commissioners would be, whether the relief granted by Parliament, might not be granted, under certain restrictions, by a Court of Justice. The power of granting relief existed, and was acted on; and the only question was, whether it should remain in Parliament, or be delegated to another tribunal better fitted for the discharge of it. Something had been said of the difference between society in Scotland, and in England, of that difference he was not aware; but if it existed, it was principally as regarded the higher orders. Where was the difference between the middle orders in Scotland and in England? Was there any greater immorality in that country, because it had tribunals which did not deny to poverty what, in this country, was granted, as of course, to the rich? Was not the clergyman, the professional man, or the shopkeeper, as well entitled to the remedy as the great landed proprietor? He had been induced to turn his attention particularly to this question, by observing, from what took place in our criminal courts, that there was a great increase in the number of prosecutions for bigamy. In a majority of cases he observed, that the persons prosecuted were those whose wives had quitted them or eloped; and if those persons had been placed in a higher station of life, they would have procured the relief which that House had the power of granting; but not being able to procure that relief, they became liable to a criminal prosecution, and were perhaps punished, because they wished to enjoy the comfort and satisfaction of domestic society. The present state of the law was undoubtedly open to that objection which had been stated by his hon. and 1284 learned friend who introduced this subject, and it imperatively called for some revision. His hon. and learned friend, the member for Tregony, did not believe in the existence of collusion to the extent which had been stated. If the husband put his wife in the way of a seducer, in order that she might commit adultery, or that he might obtain damages in a court of law, it was a criminal collusion; and though he would not take upon him to assert that there was a large number of such cases, yet, with great deference to his hon. and learned friend, he must say, that there was a large description of cases in which, if they had been scrutinized to the bottom, Parliament would not have granted a Divorce. He alluded to cases where there had been culpable neglect on the part of the husband, where he had committed similar excesses himself, or had exposed his wife to the arts of a seducer. In such cases, when the wife behaved ill, the husband brought his action against the seducer, and might have no chance of obtaining damages if the facts were thoroughly sifted. But suppose that the defendant in the action was not desirous to set up his defence. It might be the wish of the seducer to make amends to the lady he had seduced, and he might agree not to offer any opposition. Several instances had been communicated to him, from authorities on which he could rely, of a distinct arrangement entered into between the husband and the seducer, that the damages should not be levied. The defendant in such cases allowed judgment to go by default. A sheriff's jury was empanelled generally in some alehouse to assess the damages: the facts were admitted; there was perhaps a palliative speech on the part of the defendant, setting forth his youth, or the seduction to which he had been exposed, or something of that kind; and whatever might be the amount of the damages, the effect was precisely the same on the parties. He could state on this point the opinion of a person, who it would be admitted was a high authority on this subject,—perhaps the highest that could be named,—certainly the highest with which he was acquainted—he meant Lord Stowell. He asked Lord Stowell whether it were true, as he had been informed by others, that in nine out of ten of these cases the party who complained was the party most to be blamed; that in that large proportion of 1285 cases the husband was the party chiefly in fault, then the wife, and, last of all, the seducer. Lord Stowell's reply was, "you are wrong; that is not the case in nine instances out of ten, but in ninety-nine out of a hundred." He did not mean to say that Lord Stowell's opinion was exactly, that this occurred in ninety-nine cases out of a hundred, but it certainly was his opinion, that it occurred in a large proportion of cases. Was it not likely that such cases would be hotter investigated by judges holding official stations, and discharging their duly before the public, and whose characters would suffer if, from any private motive, they should scrutinize one case less than another; was it not likely that such cases would be better investigated by professional men, than they could ever be in that House? Let every Gentleman ask himself whether he had ever, upon any question of this description, acted as if the eye of the public were upon him, and he, and he alone, was bound to inquire into all the facts of the case. He believed no Member so acted, and if no one did, the whole did not, and cases which came before that Mouse were consequently not investigated. It was well known how business of that kind was hurried over in the House when any question of importance or public consequence was about to be brought forward. The question of war or peace, or some question involving the very existence of the country, might be brought forward on the same night with a divorce bill; and was it likely that the House would allow any Member to go into a lengthened investigation on an ordinary bill of this description at such a time, when a great political question was in agitation. Would it be likely, on such a divorce bill being brought in with the ordinary proof, if any one were to get up to examine further into the case, that the House would allow him? It had been suggested that, to meet this evil, there should be additional checks and impediments thrown in the way of divorce bills. That principle had been tried in the other House, by the passing of certain Standing Orders, but the result was, that they had not been adhered to in practice. It had been said, that it would not be for the good of the parties to adhere to them too nicely. There was that order, for instance, for the examination of the husband himself, which would seem to afford great protection against collusion, as under it 1286 the whole of the circumstances relating to the cohabitation of the parties might be entered into. That order had been dispensed with, because it would be a painful thing to those who had friends, and were well known, to submit to a public examination on such a subject. The Standing Orders, then, were perfectly nugatory as a protection against collusion. Upon all these grounds he felt a strong wish to support the Motion then before the House. He thought that the Ecclesiastical Commission would be able to investigate such a question: but if it should not be, it was the duty of the House to consider whether there were no other course likely to answer the purpose proposed by his hon. and learned friend. It was said, that he ought to bring in a bill; but there was a principle to be discussed before coming to the House with a bill. If a general principle were agreed upon, then the details might be advantageously introduced in the shape of a bill; but to call upon an individual to enter into the details without first ascertaining whether the House were prepared to adopt the principle, was to impose trouble without any purpose. It would be necessary afterwards to decide whether such a court as his hon. and learned friend proposed, ought to be established; and whether the House would be prepared to give up to any tribunal the power it had so long exercised. When the bill should come before the House, the object with which it had been introduced might be disapproved of, and his hon. and learned friend would find that his labour and attention had been bestowed in vain. He thought, therefore, that his hon. friend had acted wisely in adopting the present course; and he should give the Motion his most cordial support.
§ Sir Robert Peel
said, the House had some reason to complain of the imperfect notice which the hon. and learned Gentleman had given of this measure—all-important as that was. He was, therefore, rather taken by surprise in being called upon to give an opinion upon it at that moment. He was sorry to be compelled to give a vote on so extensive a subject without the fullest consideration. The question, as it appeared to him, was this:—Was a case of necessity made out for a change in the existing law? and, secondly, was the proposed the best mode of legislating upon the subject? As to the first part of the question, he would 1287 not at that moment undertake to decide it, but he was prepared to say that he could not admit all the hon. and learned Member's statements. It had been said that that House was not a competent tribunal in cases of Divorce, and that in nine cases out of ten collusion took place. He thought, however, that that statement was much exaggerated, for he could not give the name of collusion to a case where a wife, who had been guilty of adultery, and wronged an affectionate husband, offered no opposition to his procuring a Divorce. If it were the case that collusion was frequent and inevitable, it would be their duty to take some means of preventing such an evil in future. But the testimony of the hon. and learned member for Tregony was directly opposed to such a supposition. If by collusion were meant a criminal collusion to obtain a Divorce, he (Sir Robert Peel) was by no means of opinion that such a collusion was frequent. The hon. and learned Gentleman spoke of the expense of the remedy operating to give the rich an advantage over the poor. Let them adopt what regulations they pleased on the subject, he feared that that inequality could not be obviated. How could any court determine on the justice or expediency of granting a Divorce without an extensive review of the lives of the parties by whom it was claimed, and without hearing satisfactory evidence upon the subject? The expense attendant on such proceedings must always operate as a bar to the poor. It had been said that there were courts in which a subject of that kind could be investigated at an expense not exceeding 15l. With a reference to public morality, however, it appeared to him that it would be much better to retain all the existing inconveniences than to make Divorce so easily attainable. To do that, would be to hold out a temptation to adultery. He was far from thinking that our present system was a good one; but he was by no means prepared to say, with the hon. and learned member for Clare, that the husband should have no remedy for the infidelity of his wife.
§ Sir Robert Peel
said, his argument applied to both species of Divorce. It was well to make it the general rule that there should be no Divorce; but there must be exceptions; yet those exceptions ought to 1288 be strictly inquired into, and ought to be the subjects of distinct acts of legislation. As to referring the subject to the Ecclesiastical Commission, it must be remembered that that commission was appointed for a very different purpose. And, besides, there were in the discussion of the question many moral and political considerations, which the Legislature ought to retain in its own hands, and not devolve them upon any commission. It must also be recollected, that the commissioners were acting gratuitously. Having undertaken what it would require three or four years of application to accomplish, was it fair to impose upon them an additional labour. For all these reasons he was not prepared to acquiesce in the hon. and learned Gentleman's Motion; and hoped that he would follow the advice of the hon. and learned member for Tregony, and not press his Motion to a division.
Lord L. Gower
, when he saw one of the members of the commission in question placing himself in an attitude of supplication, to entreat the House not to throw the burthen of this subject upon that commission, felt himself compelled, however reluctantly, to oppose the Motion. He must distinctly, however, object to the principle of the hon. and learned member for Clare, that there should be no Divorce.
§ Dr. Phillimore
observed, that although at the commencement of the discussion he had trespassed on the attention of the House at some length, yet he hoped he might be allowed, under the peculiar circumstances of the case, to offer a few observations in reply. He begged to assure those hon. Gentlemen who were so impatient, that he would trespass on their attention as briefly as possible. If the right hon. Baronet had been present at the examination, and during the discussion which took place on the case already referred to, which he was not, he would suggest that this Motion should be given up. He had brought the subject forward with great reluctance, at the suggestion of many hon. Gentlemen who felt, as he felt, how very difficult it would be to originate any legislative measure. He was asked, why not bring in a bill? Unfortunately he had some experience of that course. He had brought in a bill on another subject; and after four or five years toil and trouble, he had the satisfaction of seeing the principle of that bill adopted: but he had sufficient experi- 1289 ence to be convinced that an individual introducing such a measure as an alteration in the law of divorce, and unaided by Government, had no chance whatever of bringing it to a satisfactory conclusion. The right hon. Secretary wished that a more distinct notice of the proposition had been given; but, in fact, he was doubtful what course it would be most expedient to adopt: whether he should move a resolution, or propose that the subject should be referred to a commission; and till he had made up his mind, he could give no other notice than he had given. He had adopted the latter course in conformity with the advice of those whom he consulted, and at whose instance he took up the subject. The right hon. Gentleman asked, what ground or grievance had been made out to justify the Motion. But every hon. Member conversant with Divorce bills, must be aware that the time had arrived when some steps should be taken to revise and reconsider the law upon this subject? That was all he asked for. He only sought a deliberate consideration of the subject by those best qualified to investigate it. Matters had at length arrived at such a pass, that something must be done. The right hon. Gentleman said, that collusion did not exist to the extent stated; but upon that point he differed from the right hon. Gentleman, and he contended that collusion prevailed to an alarming degree. If the right hon. Gentleman would but refer to the Debates to which he had referred, in bringing this matter before the House, he would find very deliberate opinions given by high authorities in the House of Lords on the subject. In 1779, in 1800, and 1801, Lord Thurlow, Lord Eldon, and Lord Kenyon,* expressed very decided opinions against the law as it at present stood, and stated the great extent to which collusion existed in all cases of divorce. He would find that those high authorities repeatedly declared that the law of Divorce could not stand as it was and is, but that something must be done to revise and amend it. That law, at present, was opposed to the general principles of the laws of England, which respected not persons—they were made both for the rich and the poor, and were equally open to both; but the law of Divorce was a law for the rich alone, and the relief which it afforded was placed out of the reach of the poor man. The right* Hansards Parl. Hist. Vol. xx. p. 595—xxxv. p. 234, 250.1290 hon. Gentleman seemed to hint that it would be a relief to a poor man could he escape the expenses attendant upon passing a Divorce bill through the House; but he ought to recollect that cases of separation from bed and board, where the parties could not afford the expense of proceeding further, and could not afford the unavoidable expense of witnesses, &c.—were not unfrequent; and in such cases, how could the relief mentioned by the right hon. Gentleman be a benefit? However anxious he felt for an alteration of the law, he had not taken it upon himself, on the present occasion, to suggest the remedy. He was only desirous that the House should put the matter in a proper train for investigation, so that some remedy might be devised. He had already said that a divorce bill could not be passed through the House under an expense of from 600l. to 700l., so that a complete divorce, which was permitted to the rich, was forbidden to the middle and poorer classes, who could not afford the expense of such a proceeding. It was extremely hard that the poor man should have no relief from an unfaithful wife, because he had not money enough to defray the costs which the Legislature had made the price of obtaining that relief. The principle was a wrong one, and the law founded on it could not be otherwise than injurious. The law ought not to couple separation from bed and board, which was an expense and breaking-up of comfort, with a subsequent expense, which prevented an injured party from obtaining a complete dissolution of the marriage tie. This was an unequal and unjust operation of the law. It would certainly be something if it could be shown that the law had worked well. But, to prove that it had not, it was only necessary to refer to the proceedings which took place upon every bill of Divorce in the House; it was only necessary to refer to the Standing Orders of the other House of Parliament, and to the arrangements which had been made there, with a view to prevent collusion between the parties, and the adulteress from marrying again. The precautions adopted there afforded a tolerable exemplification of the operation of the law of Divorce. But it was only necessary to appeal to the experience of the House, to see how the law operated. A Divorce bill was before the House this very evening, and the hon. Members who were then present might 1291 have heard the hon. member for Ashburton state as strong and as decided an opinion, with respect to collusion, as was ever delivered by Lord Eldon or by Lord Thurlow. Some remedy must be brought forward to meet this state of things. He acknowledged that he was not prepared with one, but even if he were, the advanced period of the Session would not allow him to carry a measure of that kind through Parliament, even assuming that the House was disposed to adopt it. But all this did not appear to him any argument against the investigation which he proposed. Because he was unable to bring forward a measure—because the House could not then pass a measure—was no reason why all consideration of the very important subject should be abandoned; on the contrary, it seemed to him a powerful reason why it should be investigated. A commission had been appointed by the King to examine into ecclesiastical affairs. The right hon. Gentleman said, that commission had been appointed for specific purposes, and that the law of Divorce did not come within the scope of their inquiries. But if the right hon. Gentleman had read the commission by which these commissioners were appointed, he would have found that it fully authorised them to inquire into matters of this nature. By the latter part of the commission it is directed that inquiry should be made into the jurisdiction of Ecclesiastical Courts, and whether, in any cases, that jurisdiction might be beneficially altered, or taken away from them. One of the objects, then, of the commission was, to inquire into the jurisdiction of the Ecclesiastical Courts. The commissioners, in pursuing their inquiries on the subject, might find out that it would be proper to give to those Ecclesiastical Courts the power of pronouncing the final decision in divorce cases, and of dissolving â vinculo matrimonii. His object was, that the commissioners might consider the subject, so as to be enabled to lay some plan before Parliament with regard to it. Looking at the constitution of the commission, he must say, that no individuals could be found better qualified to consider the subject than the persons appointed upon that commission. Of whom was it composed? Of learned Judges from the Courts of Common-law, and from the Ecclesiastical Courts, with whom were associated four or 1292 five of the most eminent members of the Episcopal Bench. A commission so constituted appeared to him peculiarly well fitted to investigate this subject, and to suggest some effectual remedy for an evil, the existence of which could not be denied. Before he sat down, he begged leave to notice one or two observations which fell from the hon. member for Clare, and which seemed to be in some degree corroborated by what was said by his hon. and learned friend the member for Tregony. He understood the hon. and learned member for Clare to say, that the rupture of the marriage tie, even in cases of adultery, was illegal, both according to the canons of the Protestant and Catholic Churches. By the doctrine of the Catholic Church, and by the canons derived from the Catholic Church, he admitted that the indissolubility of marriage was maintained; but he denied that by the doctrine of the Protestant Church of England a divorce from the marriage tie was not allowed in cases of adultery. Undoubtedly, Archbishop Bancroft did make an objection to any such privilege being granted by the Church of England; but before his time, Archbishop Cranmer held and acted upon a different opinion. The fact was, that for a long period after the Reformation, the law on the subject remained undecided; but ever since the Revolution, the point had been perfectly determined. Ever since the determination in the case of the Duke of Norfolk, the great dignitaries of the Church of England have held the opinion, that adultery constituted a sufficient cause for the dissolution of marriage, and no other opinion had since prevailed. Every bill of Divorce, in fact, which came down from the other House, brought with it the express sanction and concurrence of the bench of Bishops. Under all these circumstances, he submitted to the consideration of the House, that some remedy was called for by the existing state of the law. He thought that there was no hon. Member present who would not agree with him in the opinion, that the House of Commons was an extremely improper tribunal for the consideration and decision of divorce cases. Should the House not therefore see whether some more fitting tribunal might not be selected for that purpose? Was it to allow the Session to pass over without taking any steps for applying some remedy to acknowledged evils? His proposition simply was—"That his Ma- 1293 jesty will be graciously pleased to give directions to the Commissioners appointed to inquire into the state of the Ecclesiastical Courts in England and Wales—to examine and inquire into the Law of Divorce, and to consider the expediency of enabling persons to obtain Divorces from the bond of matrimony, in cases of Adultery, by legal process in courts of competent jurisdiction." His proposition did not go to delegate any of the jurisdiction or authority of the House of Commons to the commission. He merely proposed, that a body of gentlemen, peculiarly well calculated for the purpose, should examine into the subject, and report to the House whether it might not be expedient to refer to the decision of courts of competent jurisdiction instead of Parliament, cases where divorces were sought on the ground of adultery. That was the nature of his proposition, and he repeated it, because many hon. Members who were not present when he first addressed the House might labour under a misapprehension upon the subject. He was of course in the hands of the House; but having brought this subject under its consideration, he was of opinion that the House ought not to separate without taking some steps to remedy the existing state of the law. To the majority of the members of the commission to which he proposed to refer the subject, all the topics connected with it were quite familiar. Many of them were distinguished for that learning which was necessary for the due consideration of the question; and it was doubtful if the House might again meet with a body so admirably qualified to examine the question, and to offer some suggestions that might lead to the adoption of some practical measure. With that view he meant to persevere in his Motion.
§ The House divided:—For the Motion, 45; Against it 102—Majority 57.
|List of the Minority.|
|Browne, J.||Grant, Right hon. C.|
|Baring, Sir T.||Grant, Robert|
|Crompton, S.||Graham, Sir J.|
|Carter, J. B.||Harvey, D. W.|
|Cave, O.||Hume, J.|
|Clive, E. B.||Honywood, W. P.|
|Calthorpe, Hon. F.||Huskisson, Rt. Hn. W.|
|Colborne, R.||Kennedy, T. F.|
|Ewart, T.||Lambert, J. S.|
|Eastern, Lord||Lumley, S.|
|Ebrington, Lord||Lennard, T. B.|
|Guest, J. J.||Martin, J.|
|Gordon, R.||Morpeth, Lord|
|Grattan, H.||Macaulay, T. B.|
|Nugent, Lord||Wood, Alderman|
|Norton, G. C.||Waithman, Alderman|
|Ord, W.||Warburton, H.|
|Russell, Lord W.||Wilbraham, G.|
|Sandon, Lord||Wynne, Sir W. W.|
|Smith, W.||Wynn, Rt. Hon. C.|
|Sykes, D.||Ward, J.|
|Tufton, Hon. H.||TELLERS.|
|Talbot, R. W.||Rice, T. S.|
|Tennyson, C.||Phillimore, Dr.|