§ Order of the Day for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
§ MR. WARREN
Mr. Speaker, I feel that I have great cause for entreating the indulgence of the House, with scarcely any grounds for preferring such a claim, while taking the rather unusual course, for the purpose of which I have risen—of moving that the House go into Committee on this Bill on this day three months. But I tried on Friday last several times, in vain, to catch your eye, my last attempt having been made when you called on the Attorney General, who, without my having seen him, had risen at the same moment to close the debate on the second reading of this Bill. I was exceedingly anxious, indeed, to express my opinion at that stage, for I regard the Bill as one of enormous importance, permanently affecting the social and moral welfare of the country. Why such a measure should be thus relentlessly thrust through the Legislature, with such heedless haste, at this period of the Session, when we are all exhausted—when everybody is sighing to be somewhere else than here—I really cannot comprehend. I appeal to hon. Members on all sides, whether the House is not almost visibly pervaded with a universal sense of lassitude—and well it may, when we consider how our mental and physical energies have been taxed by protracted daily and nightly sittings. Independently of attendance on Committees, public and private, have we not had to sit here almost daily, from twelve o'clock in the clay till two, and even three o'clock—more than once even considerably later—in the morning? And this with only two hours' interval between the two sittings? And as our strength for practical purposes of legislation is thus rapidly failing, so are our numbers as rapidly diminishing;—and yet the Government persists, in spite of remonstrances and protests, in going on, under such unfavourable auspices, with a Bill of greater real importance than will perhaps be before Parliament in our time—one universally 1022 and permanently affecting the national interests for good or for evil, but for evil, as I verily believe. Yes, this Bill is to be pressed on with this intemperate haste, with all the power of the Government, who will afterwards boast to the country of that Bill having been carried by large majorities; but the country does not see the state of our benches, or rather the state to which they will be reduced when the Bill is being forced through its final stages.
Sir, we have often been referred, during this discussion, to the Report of the Commissioners of 1853, on which this Bill is founded; but no one has yet adverted to the important fact, that, confident as is the tone of the Government in referring to that Report, it was by no means a unanimous one. As so much has been said about it, I also wish to say a few words on the subject. The Commission which issued this Report, consisted of seven noble Lords and right hon. Gentlemen, of every one of whom I wish to speak with consideration and respect—and of one of them in particular, my right hon. Friend the Member for the University of Cambridge (Mr. Walpole), with the most cordial regard. I differ from him fundamentally on this subject, and with great pain, for it is the first difference of opinion, on a political subject of any importance, which we have had during a close friendship of a quarter of a century. Sir, that Commission consisted of Lord Redesdale, Lord Campbell, and the late Lord Beaumont; my right hon. Friend the Member for the University of Cambridge, Dr. Lushington, Vice-Chancellor Page Wood, and the right hon. Gentleman opposite, the President of the Poor Law Board (Mr. Bouverie). Now, Sir, the chief member of this Commission, Lord Redesdale— for whose opinion all must feel respect, and none more than my right hon. Friend (Mr. Walpole) beneath me, his kinsman— dissented on a vital point from his brother Commissioners, and his reasons for so dissenting, most ably stated, and, to my mind, with irresistible force, are appended to the Report. I shall trouble the House with only two extracts. He says:—The number of Divorce Bills during the last two years before 1853, including all in the United Kingdom, and in military and civil employ in India and the Colonies, was only forty-three. It can hardly be argued that so small a number of cases affords ground for an alteration of the law, unless such an alteration should appear in other respects necessary and expedient.And then he proceeds thus, and I beg the attention of the House to the passage:— 1023Once create an appetite for such licence by the proposed change, and the demand to be permitted to satisfy it, will become irresistible. The cry for cheap law has, of late years, been universally attended to; and the result" [of such a Bill as proposed] "will but too probably be, that these delicate and important questions will be brought before inferior tribunals, where the number of the Judges—each acting separately—will render anything like uniformity of decision, in the circumstances which are to rule in refusing applications, impossible, and must ultimately tend to extreme facility in obtaining such divorces. For these reasons it is, in my opinion, expedient that the law of England, which now holds the marriage tie to be indissoluble, should remain unaltered; and that the practice of passing exceptional laws, in favour of particular cases, should be henceforth discontinued.Sir, I think this an equally temperate and impressive statement of the case, and it is one which has my cordial concurrence, after having long and deeply considered the question, by such lights as I had, in all its bearings. So much for the Commissioners' Report, to which I shall presently have to return. But, Sir, this question does not come before this House now for the first time. In the year 1830, the late Dr. Phillimore, a man of great accomplishments, and wide experience in these matters, from his extensive practice at Doctors' Commons, moved for a Committee "to consider the state of the law of Divorce, and the expediency of enabling persons to obtain divorce a vinculo matrimonii in cases of adultery, by legal process, in courts of competent jurisdiction." This Motion was discussed at length, eminent men of all parties sharing in the discussion, and the House rejected the Motion by a large majority. Now, Sir, on this question of the dissolubility or indissolubility of marriage, I beg to read to the House, in very few words, the opinion of four distinguished speakers on that occasion. Dr. Phillimore said:—There are two points against which I am anxious to guard. I wish to have it understood distinctly, that it ought to be the principle of the law that marriage is indissoluble. The interests of families—of the whole community, composed of families, demand that marriages should be declared indissoluble." [2 Hansard, xxiv. 1207.]The Solicitor General said:—I, for one, should be sorry to see a court established for trying the mere question of divorce between parties; being persuaded that if such a court be established, questions of divorce will be as frequently brought for decision, as questions of property in other courts. But as it is desirable to throw impediments in the way of divorce, rather than to render it easy for persons of every rank to obtain that relief, I shall certainly always set my face against supporting a separate court to give cheap divorce to the people." [Ibid. 1275.]1024 Sir Robert Peel and Mr. O'Connell took part in that debate, and for once, and on so momentous a question, too, concurred in opinion. The right hon. Baronet said:—With reference to public morality, however, it appears to me that it will be much better to retain all the existing inconveniences, than to make divorce so easily attainable. To do that will be to hold out a temptation to adultery" [Ibid. 1287.]which is the heavy fear now weighing on my own heart in respect of the operation of this Bill. But what said Mr. O'Connell?—I wish, with the hon. Mover, that the poor shall be placed on the same footing with the rich, in regard to divorce: but I would accomplish that, not by giving it to the poor, but by refusing it to the rich. * * * If we regard the subject merely as statesmen, I would ask—are the upper classes of society, who can obtain divorces, more virtuous than the lower, who cannot? No man will say that they are: and is not divorce a temptation to adultery? Does it not give another argument to the seducer, when it enables him to say that he will 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 of both the Catholic and Protestant Churches, are all upon my side." [Ibid. 1272.]These were the opinions of persons of authority and influence in this House, and such its decision upon this subject twenty-seven years ago; and I earnestly beg the eager promoters of this Bill to inform us what has happened during that interval which should force us, in 1857, to a conclusion opposite to that of 1830? Whence comes the cry for this change? By whom, and why, is it preferred? and so preferred, that the change should be effected with such precipitancy? But my hon. and learned Friend the Attorney General told us the other evening, in introducing the Bill, in the course of his very able, very skilful, and very subtle speech—I quote his own words, which I took down at the moment they fell from him—that "the law will remain what it has been settled to be for the last 150 years;" that "the Bill makes no material alteration in the law of England on divorce, as judicially administered by the highest court of law in the land." I cheered him when he made that statement, for I own I was astounded at his boldness in making it—one which will have startled our professional brethren out of doors, as well as those of us who have the honour of seats in this House. Why, Sir, I could overwhelm my hon. and learned Friend with testimonies to the direct contrary of his 1025 assertion. What says our great commentator, Sir William Blackstone?—The canon law, which the common law follows in this case, deems so highly, and with such mysterious reverence, of the nuptial tie, that it will not allow it to be unloosed for any cause whatever, that ariseth after the union is made. And this is built expressly upon the revealed law. With us, in England, adultery is a cause only for separation from bed and board; for which the best reason that can be given is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent.But if this be not enough, I will—if it be not like seething the kid in its mother's milk—convict my hon. and learned Friend of error, out of the mouths of his own Commissioners, who, in their Report of 1853, thus conclusively settle the matter against him. For thus they speak—With regard to divorces which rescind the marriage contract, strictly speaking, they are unknown to our law. By the law of England, that contract is indissoluble; and when once it has been constituted in a legal manner, there are no means of putting an end to it, in any of our courts.What can my hon. and learned Friend answer to this? I could cite Lord Coke, and almost all our other great law authorities—but surely, my last quotation ought to suffice, against the Attorney General. Yet I will cite, in a single sentence, the authority of another great legal luminary, Lord Stowell—clarum et venerabile nomen:—Though, in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.The same result is arrived at, and stated as his deliberate conclusion, by one of the most distinguished of living writers and academic teachers of the philosophy of morals—I mean Dr. Whewell. He says—The leading point of Christ's teaching is plain; that the Christian was not to be content with such an imperfect view of the marriage union, as was placed before the Jew; but was to aim at that higher view which was manifested when, in the beginning, God made them male and female.—That same knowledge that the union cannot be dissolved, tends to control the impulses of caprice, ill-temper, and weariness of married life—and thus, the exclusion of divorce tends both ways—to the promotion of conjugal love, and of conjugal happiness.Sir, my right hon. Friend the Member for the University of Cambridge, the other evening, in the course of his eloquent and telling speech in favour of the Bill, quoted one or two passages from distinguished 1026 divines of our Church, both as opposed to the doctrines of the indissolubility of marriage, and to the denial of the right of contracting another marriage, on the dissolution of a former one for adultery. Sir, no one knows better than I do, my right hon. Friend's familiarity with our great writers on divinity—for we have, if I may so speak, dug long in that rich mine of eloquent wisdom together—I, too, will quote from that quarter—I will cite the opinion of one who is illustrious indeed—the venerable, the incomparable—as Locke calls him, the judicious—Hooker. In his Ecclesiastical Polity he speaks thus, in language well worthy of the House listening to, and weighing—The ring hath always been used as an especial pledge of faith and fidelity:—nothing more fit to serve as a token of our purposed endless continuance in that which we never ought to revoke.The Christian marriage is, according to the Holy Scripture, a life-long compact, which may, sometimes, be put in abeyance, by the separation of a couple; but which can never be rightfully dissolved, so as to set them free to unite, during their joint lives, with other persons.Sir, I see the impression produced by the words of this great teacher, and must set them off against those cited by my right hon. Friend. Well, Sir, I contend that I have established by irrefragable authority—on the testimony of eminent practical statesmen, of great judges, of distinguished moralists and divines—that the law of England has always regarded marriage as indissoluble, and has done this in accordance with the teaching of Christian morality. I say that it is a doctrine of incalculable importance for the highest interests of society, that marriage should be indissoluble, and yet the Attorney General spoke of it with a sort of subdued contempt, as "that unreasonable law of the indissolubility of marriage:" and he said, as I took it down, "the law will remain ns before, but the mode of getting at it will be divested of existing objections." What proof did he attempt to give that the law will be under this Bill as it had been before it? Why, he adduced as such proof, that which established exactly the reverse—namely, some three or four legislative interpositions a year, during the last century and a half, for the purpose of cutting the gordian-knot of matrimony. What reason for the Legislature thus interfering, if marriage was already legally dissoluble? Sir, the thing seems to me not to bear arguing. And as to those legislative interferences, all jurists, the old Roman as well as 1027 the modern ones, concur in condemning such privilegia as vicious in every point of view; sinning against the very first principles of legislation, partaking of the odious characteristics of ex post facto laws, and granting benefits to individuals not given to the public at large. I need not quote the eloquent language in which Cicero denounced such modes of procedure. But, Sir, I turn again to the Report of the Commissioners of 1853, and there I find let out, as it were accidentally, the origin of this deceptional and mischievous legislation. "The object of Lord de Roos' case," the earliest, I believe, "was, to continue the succession, and probably the Peerage, in the male line." And then the Commissioners, with a rather quaint candour, append this note: "It is probable, that this is the real reason why Divorce Bills were allowed. Not only is there a recital to that effect in Lord do Roos' case, but there is a similar preamble in the Duke of Norfolk's!" If this be so—and it is not I, but the Government and their supporters who are relying on the authority and weight due to this Report—it is possible that those exceptional and vicious acts of ex post facto legislation, with such an object in view, prove the law of England to be, that marriage is indissoluble? I deny it. I deny it in toto, I deny it on principle, I deny it on authority—and I say to the Government, I again press for the reason of your driving on your Bill with such reckless haste and pertinacity, for the purpose of subverting a great principle, lying at the very bottom of our laws, morality, and religion. Sir, the main-spring of the mechanism of the Bill before us, is this dissolubility of the marriage-tie, which it declares; but I see breakers a-head. I predict, that if the Bill be carried in its present state, most serious consequences, and of a nature and extent not yet to be estimated, will ensue. You declare by the 53rd section, that after a decree of the dissolution of a marriage, "it shall be lawful for either party to marry again, as if the prior marriage were dissolved by death." So that not only may the innocent aggrieved party marry another, but the guilty parties may intermarry; and if so, the clergy may be called on to marry them. Now, Sir, allusions have more than once been made to a certain Declaration, or Address, a copy of which I hold in my hand, and which I am informed, on excellent authority, has appended to it the 1028 signatures of nine thousand—[Mr. GLADSTONE: Now nearly ten thousand]—clergymen of the Established Church. I am content to take it as nine thousand; and if so, what is the Declaration? I will read it to the House:—We, the undersigned Clergy of the United Church of England and Ireland, being mindful of the vow made by us at our ordination, that we would 'give faithful diligence always, so to minister the Doctrine, and Sacraments, and Discipline of Christ, as the Lord hath commanded, and as this Church and realm hath received the same,' hereby express our earnest desire that facilities, unauthorized by Holy Scripture, and by the law and ritual of the united Church of which we are ministers, may not be given to the dissolution of Holy Matrimony.Remembering also, that it is declared in the Word of God, that marriage with a divorced woman is adulterous, we fervently pray that the Clergy of this realm may never be reduced to the painful necessity of either withholding the obedience which they must always desire to pay to the law of the land, or else of sinning against their own consciences, and violating the law of God by solemnizing such marriages as are condemned as adulterous in His Holy Word.Sir, is not this temperate, grave, and resolute, in expression and in spirit, and does it not suggest matter for equally grave consideration on our part? Who are these nine thousand? where will you find such another body of men? Men of education—of the best education the country can give—men of virtuous and holy lives—ministers of Christ—respected and beloved by those over and among whom they are placed, and who have given infinite instances of their disinterestedness, sincerity, and determination, in what they deem matter of conscience and duty. They are so many radiating centres of social influence of the most extensive and enduring kind. Now, Sir, I regard the existence of such a document, as, of itself, a great fact. You will be unwise to attempt to disregard or undervalue it, only that you may be undeceived when difficulties may have arisen, which will have become equally serious and insuperable. Sir, the latter paragraph of the declaration to which I am referring, touches a point of infinite speculative as well as practical delicacy and difficulty—namely, the duty of the subject to obey a law set in plain unequivocal terms, which is really believed to be in conflict with the law of God. Who, however, is to determine that momentous question? Every one for himself? But what is to become of society, if every man's obedience to the law is to depend on his own notion of its conformity with the 1029 law of God? Sir, law is law, so long as it stands enacted by the sovereign power of the State, even though that law be a bad one; and it must be obeyed by the subjects of that State, however strenuous and praiseworthy their efforts at the same time to abrogate such a law. It is true that Sir William Blackstone has said, in language requiring to be received with much caution, that "no human laws are of any validity, if contrary to the law of God;" but I entirely agree with the Attorney General, in his assertion of the supremacy of the law over all states and conditions of men, and I think that the clergy should and will be the last to question such a doctrine. Yet, I ask, is this a position—equally painful and perilous—in which to place such a body of men? Surely we see here a rock on which we ought not to drive them, and least of all, lightly drive them. I contend that the very existence of such doubts and difficulties is an argument against exposing our clergy to such a harassing dilemma. Sir, this declaration, as I read it, raises distinctly the two great questions—does the Gospel permit marriage to be dissolved at all during the life of the parties, and even if it do, is the subsequent marriage of either, during the other's lifetime, lawful? It is not my intention to go at large into this grave and troublesome question, which has already been fully discussed here. And I must do my hon. and learned Friend the Attorney General the justice of saying, that he handled this delicate—this sacred subject—with becoming tenderness and gravity. Indeed, Sir, humble as I am, as a Member of this House, I wish the fact to be known universally out of doors that—speaking, at least, from my own observation—here the Holy Scriptures are never quoted or alluded to, but with profound respect and reverence, as well they may be, in a Christian Legislature. I recognise no other basis of Christian legislation than the Holy Scriptures; and if it be clear that the Gospel forbids such a law as that proposed to us, we cannot give it our sanction. Now, I have studied this part of the subject with care, and have arrived at the conclusion, that Christ himself has declared marriage indissoluble, and declared it in plain terms of universal obligation. If the Gospels of St. Luke and St. Mark had stood alone, there could, of course, be not a shadow of doubt on the point; and my opinion is, that the Gospel of St. Matthew—a few words of 1030 which have alone raised this doubt—properly construed, harmonizes with the other two, and forbids the dissolution of marriage for any cause. ["No, no!" and "Hear, hear!"] That, at all events, is my own deliberate opinion. Our Saviour, when surrounded by the presumptuous and profligate Pharisees, refers them to the original command, given by himself, whereby husband and wife were no more twain but one flesh, and authoritatively concluded the whole matter, by adding, "What, therefore, God hath joined together, let not man put asunder." He who first gave the command, thus at once expounded, and re-enacted it; and if that be so, there can be no further question, and this Bill must be rejected. This, I must add, is the view taken by so large a body of the teachers of our Church, and with every disposition to cling to the right of private judgment, I hold that the utmost deference is due to those teachers, as expositors of scriptural truth. But they follow out their reasoning practically, by saying that there could be no marriage between parties who still remained bound by their original marriage tie; and infinitely beyond all was it objectionable and sinful, to allow the ceremony of marriage to be performed between the parties to the adultery. Yet this Bill allows it. Now, what say the Commissioners on this subject?—The question whether the guilty parties should be restrained from intermarrying is one of immense importance, involving so many and such vital considerations of national policy, that we forbear to do more than call attention to it.It appears from an interesting Report drawn up by Mr. MacQueen, a gentleman of great ability, and who has devoted much attention to this subject, that though the law of Scotland allows a dissolution of marriage for the cause of divorce, marriage between the guilty parties is forbidden by special statute; which is also laid down in so many words in Erskine's Principles of the Law of Scotland. So that the Bill before us proposes to establish a law fundamentally different from that in the sister kingdom! And are the clergy really to be compelled to celebrate such marriages, and after their public, deliberate, solemn declaration of their opinion now before us? Do you think they are likely to discard that opinion? I think the clergy are, at all events, under great obligation to my right hon. Friend the Member for the University of Cambridge, 1031 for the relief to their conscientious scruples which he proposed the other evening. If, indeed, that much, at least, be not done, I foresee exceedingly grave results, for which those are doubly responsible who are forcing on this Bill in such a manner, at this period of the Session. But, suppose this relief afforded by the expedient of having such new marriages celebrated before the superintendent registrars—let us remember, that there is such a thing as a union between Church and State; and here we shall have the appointed ministers of the Church declaring such marriages to be mere adulteries, and the State at the same moment saying to the same parties, "Never mind the Church—go and be married under the authority of the State." Is that a safe procedure? Is that, Sir, encouraging the people to respect the authority and teaching of the Church? Or is it not directly rending asunder the connection between the Church and the State? Nor, Sir, is this by any means all. Let us suppose this measure, in this form, become law, and the clergy retaining and acting on their present opinion. Have we considered one of the consequences? They will regard so-called married adulterers as living in open sin—as being, in the language of the rubric, "open and notorious evil livers;"—to whom they are bound to deny the Holy Communion. To what perils and scandals may not such a state of things give rise? I believe that this is one of those evils which are foreseen by the clergy; and, indeed, the further you pursue this proposed new law into its probable consequences, the thicker is your path strewn with the thorns of perplexity and danger. Why, then, will the Government persist in their present course? The further our discussions on this all-absorbing subject penetrate into the country, the greater is the alarm—the greater the repugnance to this new law, especially among women. Indeed, Sir, it is pre-eminently a woman's question—and I understand that a petition against the Bill is on the eve of being presented to the Queen, signed by 16,000 women; and yet the interests of both sexes, and in every rank of life, are inextricably involved in the adoption or rejection of the measure. I do not deny that the Bill contains clauses not only unobjectionable, but which meet my highest approval; I mean all those clauses—but which will require modification—having in view the protection of wives against cruel and profligate husbands. Thus far, indeed, the eloquence of 1032 woman's silent anguish—for her heart too often bleeds and breaks in silence—has reached the ear of the Legislature, which listens to it; but let it also listen to her passionate pleading on behalf of that institution in which are centred all her affections and hopes—the institution of holy matrimony. It bears upon it, in her eye—and the eyes of us all—the bloom of the original Eden, and yet you are about to soil and sully it with the polluting breath of the adulterer. It is an institution full of purity and mystery—and its indissolubility seems to me the very basis or essence of both. You may see this unequivocally displayed, in the form and language of the ceremony of marriage itself, and you must alter—you must remould that ceremony, if this Bill pass. As that ceremony now stands, it will be quite at variance with the law of the land as we are about to make it. The prayer contains these words—"and knitting them together, didst teach that it should never he lawful to put asunder those whom Thou, by matrimony, hadst made one;"—and this is the marriage vow:—Wilt thou have this woman to thy wedded wife to live after God's ordinance in the holy estate of matrimony? Wilt thou love her, comfort her, honour, and keep her in sickness and in health; and, forsaking all other, keep thee only to her, so long as ye both shall live?—The man shall answer, I will.Remove this element of indissolubility, and how much of the hallowed and hallowing character of matrimony vanishes! Depend upon it, Sir, with that attribute of indissolubility are linked inestimable and incalculable blessings; it extinguishes at once and for ever all unholy and vicious hopes and prospects; it makes each party become everything to the other. Sir, the effect of this Bill will be, to put an end to this state of things—to make the hallowed tie severable on the impulse of guilty caprice and passion—to propose illicit objects for contemplation. Indeed, if I may be forgiven for so characterizing the Bill, it should be called a Bill for "bringing home" bigamy "to every man's door;" and its true reading is, "the art of adultery made easy." It introduces a new and unsightly element into our social system, and I view its action with the utmost apprehension. But, Sir, I really must beg pardon of the House for having trespassed so long on its great kindness and forbearance, considering how unusual is the step which a sense of duty alone has impelled me to take. Before resuming my seat, I would make a 1033 last earnest appeal to the noble Viscount at the head of the Government; and supplicate him to give us, to give the country, breathing time—an opportunity of considering deliberately a measure of such paramount and permanent social importance, as that into the details of which he is determined to drive us to-night. Again, I would remind him, not deterred by his good-humoured raillery the other evening of my hon. and learned Friend the Member for wallingford (Mr. Malins), of the lassitude and exhaustion under which the Members of this House are really suffering. It is not many of us who are blessed with the extraordinary energies of the noble Viscount. I congratulate him heartily on the possession of his powers, both physical and mental. Long may he enjoy them—long may he continue here—long and bright may be the evening of his lengthened political life. I congratulate him, though politically opposed to him, on his being personally the object of so much public favour as has undoubtedly placed him in his present commanding position; but by that very public favour—by every consideration which can and ought to influence him, or any one in his position—I conjure him to have regard to the permanent interests of the country to which he is so much indebted for its confidence. Let him not persevere with this dangerous Bill—or, at all events, let him, with a dignified deference to appeals from so many and such estimable quarters both in and out of Parliament, resolve to give us an opportunity of thoroughly, at our leisure, and after consulting our constituents, exercising and weighing such a Bill as this—one which—however he, perhaps, thinks otherwise—may cloud and disturb the serenity of his declining years, from the consciousness that he had irreparably compromised the best interests of that country which had entrusted them so frankly to his keeping. Sir, I beg to move that this House do go into Committee on this Bill on this day three months.
§ Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day three months, resolve itself into the said Committee," instead thereof.
§ MR. BAINES
said, his object in rising was to entreat the House, without further delay, to go into Committee, with a view 1034 to the consideration of a measure, the principle of which had received the distinct and deliberate sanction of the House. The principle of the Bill had already been discussed by the House on more than one occasion; for the debate on the Motion of the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) for the postponement of the measure, was conducted mainly with reference to the principle of the Bill, and the House decided by a majority of nearly two to one that it was a principle which ought to be taken into consideration by the House; and, again, after the debate on the second reading, the principle was accepted by the House by a majority of more than two to one. Nevertheless, the hon. and learned Member for Midhurst (Mr. Warren) had again opened the discussion on the principle of the Bill. He hoped, nevertheless, that the House would now think that the principle of the measure had been sufficiently discussed, and that the measure was ripe for the consideration of its clauses in Committee, and would allow any Amendments which it might be deemed desirable to introduce to be dealt with during that stage of its progress. The hon. and learned Member for Midhurst himself allowed that there was something good in the Bill, and he (Mr. Baines) believed that it would be universally admitted that that provision of the Bill was a desirable one which took away from the spiritual courts the right of dealing with divorces a mensá et thoro. The hon. and learned Gentleman himself had said that there was another important and advantageous provision in the Bill, and one which he would support—namely, the greater protection it afforded to women. But whatever were the differences of opinion which existed, let them now proceed to discuss those points of difference on the clauses as they arose. Let them on the 25th clause discuss the question of the dissolubility of marriage, and on the 53rd clause the claim of clergymen to be exempt from marrying divorced persons; and, if it turned out that the House adopted any of those propositions to which hon. Gentlemen were opposed, let them renew their objections, and if they thought it necessary, record their votes against the Bill on its third reading. That would be the proper course, unless there was—and he thought he perceived signs of it—a premeditated intention to defeat the Bill by delay. He did not propose to follow the hon. and learned Member for Midhurst 1035 through the various arguments he had urged against the principle of the measure, but there was one point to which he had adverted which was of paramount importance, and with regard to which it was impossible that the truth could be made too clear. The hon. and learned Gentleman said that the Attorney General was wrong when he stated that by the law of the land marriages might now be dissolved. The hon. and learned Gentleman said that by the laws of England marriage could not be dissolved. In reply to that assertion, he would refer to an authority to which, on any question of English law, he presumed the hon. and learned Gentleman would bow. He alluded to the authority of the Lord Chief Justice of England, who was not only the head of the first common law court in the kingdom, but also the head of the Commission which inquired into the subject; and what did he say on the 19th of May last? He spoke as follows:—He thought he might attempt, perhaps not unsuccessfully, to quiet the apprehensions of his noble and learned Friend (Lord Wensleydale), who complained that by this Bill they were altering the law of the land, for by the law of England marriage was indissoluble. That was a mere legal subtlety, spoken by a lawyer, and contrary to fact and common sense. For the last 200 years marriage by the law of England had been dissoluble for adultery. For 200 years it had been a matter of right that a husband whose wife had been unfaithful, and who had been a kind and attentive husband, might apply for a divorce, and a divorce he was sure to obtain. It was true that in Bills of divorce their Lordships nominally acted legislatively, but they really and to all intents and purposes acted judicially—they saw that the allegation of adultery was fully sustained, and then as a matter of course they granted the remedy prayed by the injured party. That had been the invariable course; and by the practice, therefore, of the law of England, any one proving adultery had a right to a divorce, and to marry again. He had the honour to be at the head of the Commission appointed in 1850; the object of the Commissioners was not to alter the law, but the procedure by which the law was carried into effect. They were shocked at the complexity of that procedure—first that there should be an action for crim. con.; second, a suit in the Ecclesiastical Court for a divorce a mensâ et thoro; and then a petition for a Bill in their Lordships' House. The noble and learned Lord on the woolsack had spoken of three different proceedings, but he had really understated them. There was a fourth. The whole matter might be investigated over again at the bar of the House of Commons; and, although of late years the House of Commons, out of decency, had accepted the evidence taken at their Lordships' bar, he had himself examined witnesses at the bar of the other House to prove the adultery for the fourth time. He thought these repeated exposures very 1036 much to the detriment of public morals."—[3 Hansard, cxlv. 511.]He (Mr. Baines) apprehended that that authority could not be questioned even by the hon. and learned Member for Midhurst, and he thought that it fully justified the opinion which the Attorney General had stated. This was the single point on which he was anxious to say a word or two, for it was important that the public should know that the Government was not introducing a new law, but rather a new mode of enforcing a law which had prevailed for the last 200 years. He hoped that the House would now go into Committee on the Bill; and he was bound on the part of the Government to say that they would do all in their power to carry a measure of the justice and propriety of which they were fully assured.
§ MR. STEUART
said, that having seconded the Amendment of the hon. and learned Member for Midhurst, he trusted he might be permitted to offer a few observations to the House. In the first place, he must express his gratification that the importance of the measure had at length been recognized. It was, indeed, of so much importance that it was extremely undesirable it should be passed with undue haste through the House of Commons, and he would contend, in answer to the charge of a disposition to delay the passing of the measure which had been brought against those hon. Members who were opposed to its principle, that there were occasions upon which to take advantage of the forms of the House with that view might be justifiable. The Bill was one of a character which ought not, in his opinion, to be pressed through the House at the fag end of the Session, when, as was indicated by the division list, there were not one-half of its Members present, to record their votes upon the second reading, and when there was every reason to suppose that, in a few days, their number would be still further diminished; yet the right hon. Gentleman who had just sat down seemed to take great pride in the majorities by which the principle of the measure had been affirmed. And upon what grounds, he would ask, did the noble Viscount at the head of the Government urge on, under such circumstances, a Bill the operation of which was calculated to affect, to a most material extent, the wellbeing of the community, as well as the interests of the Established Church herself. Declarations were pouring in 1037 from the clergy against the measure, which more than 100,000 persons had petitioned against. Was he not, therefore, justified in saying that the Government were attempting to force upon the House a Bill which was viewed with repugnance and dislike by the country? He was happy to be able to state that, in previous debates in that House, considerations founded upon Christianity and Scripture had alone been admitted. It had been argued that Scripture allowed the dissolubility of the marriage tie, although few had asserted that it permitted the marriage of the guilty parties. He would not enter minutely upon the Scriptural argument, but the balance of authority seemed to him to prove that, if a marriage were dissoluble, the permission to dissolve it was of a doubtful and dangerous character; but that, at all events there was an overwhelming balance of testimony of ancient and modern divines against the marriage of the guilty parties. Passing by the authority of the Church, although the number of the clergy who had signed the declaration against the Bill was not to be disregarded, he would inquire how the representatives of the Universities had voted on this Bill—because the conduct of the representatives of the Universities might be taken in some degree as representing the feeling of the clergy? The great weight and influence of the Members for the Universities of Oxford and Dublin had been given against the measure; and, although the right hon. Gentleman who represented the University of Cambridge thought the principle of the Bill might be justly and safely conceded, yet his hon. and learned Colleague deemed it safer and better to negative the second reading. It had not been proved to his satisfaction that, by the common law of England, marriage was dissoluble. The authority of the Lord Chief Justice of England had been quoted on one side, but the opinion of Lord Wensleydale was not to be despised, and that noble and learned Lord said that, by the law of England, a marriage once contracted was always indissoluble. Lord Coke had also given his opinion to the same effect, when he said—"a divorce by reason of adultery cannot dissolve the marriage a vinculo matrimonii, for the offence is after the marriage." With regard to the Scriptural argument, he was at one time under the impression that the divorce of a wife for adultery was allowed by Scripture; but, 1038 on comparing Scripture with Scripture, that view had been much shaken. He admitted that the passage from St. Matthew might admit the interpretation put upon it by the supporters of the present Bill; but it was impossible to reconcile the language of St. Paul with that interpretation. As to the word it did not mean the single sin of adultery, but other sins of the same character. It was said that all the Protestant Churches had agreed upon this subject; but it was at least a matter upon which their interpretation might be very reasonably questioned, and their agreement could not be described in the formula of the ancient canon—quod semper, quod ubique, quod ab omnibus. He could not accept the dicta of Archbishop Cranmer and Milton on this subject; and when the right hon. Gentleman the Member for Cambridge University (Mr. Walpole)said he would not enslave those whom God had made free, he would reply that, if the House were convinced that the letter of Scripture was not plain and precise, it was a serious matter for consideration whether it was expedient now to alter the law. He thought there were grave reasons why it was neither right nor expedient. The hon. and learned Member for Midhurst (Mr. Warren) had quoted some words of Lord Stowell, and he also (Mr. Steuart) would quote some other words of that eminent and learned person, though they had often been quoted before, "that the knowledge that persons must continue to live together as husband and wife often made good husbands and wives, for necessity was a powerful master in teaching duty." He had been much struck by an observation of the hon. Member for West Surrey (Mr. Drummond), that if this Bill passed, you would take away the power, on the part of the husband, to grant that condonation which he should be sorry to see excluded from contemplation in a Christian country, but which, so far as it could be affected by legislation, would be prevented by the massing of this Bill. It might be the law of honour for the husband not to forgive an erring wife, but he had yet to learn that it was consistent with the spirit of Christianity to take away the power to do so. The right hon. Gentleman opposite (Mr. Baines) urged the propriety of postponing these objections until the Bill was in Committee; but if the House agreed to go into Committee at the fag end of the Session, when Members were leaving town, and 1039 when the Government had a subservient majority at its command, what chance would there be of expunging the most obnoxious clauses of the Bill—the marriage of the guilty parties, and of passing a proviso permitting the clergy to act according to the dictates of their consciences in regard to the celebration of these marriages? Believing that the House was treading on doubtful and dangerous ground, he should take every opportunity of recording his vote against the principle involved in this measure. The right hon. Member for the University of Oxford alluded to the evil which might arise under this Bill, in forcing the consiences of the clergy, and the secession of the clergy in Scotland had been alluded to by another hon. Member, that secession arising from the law of the land being different from what they considered to be the law of the Church. The secession of the Scotch clergy arose out of the rules for the ordination of ministers; but that point was not to be put in comparison with the objections which might be felt by the clergy in England in reference to the serious consequences the present Bill might entail in loosening the ties of morality. Was it not to be feared that, as had happened in Scotland, a large portion of the clergy in England might feel it their duty, if this Bill passed, to secede from the Established Church? He entreated the noble Lord at the head of the Government to be content with the triumphant majority which had affirmed the principle of the Bill, and to pause before forcing the measure through Parliament during this Session. There might be good provisions in it, such as the establishment of a better tribunal for deciding on divorces a mensaâ et thoro, and that for the abolition of the action for criminal conversation; but such matters sank into insignificance compared with the objections of those who held the marriage tie indissoluble, and the remarriage of the guilty parties prohibited. He hoped the noble Lord, though he had carried large measures, and might be able to add the capital to the edifice by doing away (tough in this respect he did not agree with the noble Lord) with the last measure of intolerance in respect to the Jews would not let it be said that he had also carried a measure likely to have the most evil effect on social morality.
said, that although he certainly was not one of the subservient majority of the Government which had 1040 been alluded to by the hon. Gentleman who had just sat down, for he had often found it his duty to vote against them, yet he felt it his duty to support this measure; but he would not have occupied a moment of the time of the House, but for the conviction that he entertained views on this subject somewhat different from the grounds which had been stated for and against the Bill by other hon. Members. He would not follow the hon. Member for Midhurst (Mr. Warren) or the hon. Member for Cambridge (Mr. Steuart) into the theology or law of the question, because, probably, he held opinions which might seem singular to the House: he believed he could read his New Testament without the intervention of any authority but the enlightenment of a higher Power. As regarded the law of the subject, the question before the House was not whether marriage should be dissoluble or not: that question had been settled long since, and the dissolubility of marriage was part of the law of the land. Hon. Gentlemen who opposed the Bill on that ground ought, in order to put themselves on a fair footing with respect to the proposition before the House, to have brought forward some proposal to do away with the licence of the present system, and the luxury, if it could be so called, for the rich of obtaining divorces. He had listened with great attention to the speech of the right hon. Gentleman the Member for the University of Oxford (Mr. Gladstone), and he thought that that right hon. Gentleman had exhausted the subject. His strong point appeared to be this: he spoke very earnestly of the marriage tic and reminded the House that they were about to meddle with an ordinance which bore the stamp of God Almighty upon it. His (Mr. Gilpin's) answer to that was, that it was not for marriages which bore the stamp of God Almighty upon them that this Bill proposed to legislate. The hon. Member for Midhurst also had alluded to the solemn marriage ceremony of the Church of England, and the vows which were then taken; but where those vows were observed the Bill did not legislate; but when a noble wife was united to a vicious husband by a chain which might be called of gold, but which was often of iron that ate into the soul; or when a generous confiding husband was unhappily united to a vicious wife; or where—as in the lower classes was especially the case—they led a life of bickering and disunion, sometimes ending 1041 even in the death of one of the parties—he maintained that not all the sacraments of all the Churches could sanctify such marriages as these. He was, he confessed, not so anxious with regard to the remarriage of parties to a divorce, although he should support that provision of the Bill; but with regard to the possible objection of clergymen to remarry parties divorced, if the House went to a vote on that point in Committee, as an earnest advocate of the rights of conscience, he should vote against the provision to compel a clergyman to solemnize such marriages against his conscience. At the same time, as he did not happen to recollect any single instance of any Bishop or clergyman of the Church of England refusing to marry any Peer or any great commoner, or the wife of any Peer or any great commoner, who had been divorced, he did not anticipate such consequences from this provision as were foreboded by the hon. Member for Cambridge(Mr. Steuart). He did not believe that the result of the Bill, if it should become law, would be to multiply divorces, if it was meant that divorce of the heart, which was a real divorce, though not one by law; but he believed that by this Bill you would simply give to the poor and middle classes the privilege and the liberty which was given them by the law of England, but which had hitherto been enjoyed only by the wealthy and powerful.
§ MR. BERESFORD HOPE
said, that at the end of the Session, with one-half of the House gone out of town, and the other half wearied and fatigued, hon. Members were required to deliberate upon the grave and momentous question whether they should, by one single hasty Act of Parliament, alter the law regulating the most important and sacred of social and, he might add, political contracts which had existed in this country for 1,200 years—ever since Christianity was first spread among the Saxon race—and make marriage legally dissoluble, which for twelve centuries had been indissoluble by the laws of the land. He repeated that assertion It was true that a few marriages had been for the last century and a half, dissolved by a clumsy round about expedient. The real statistical facts in reference to the matter were, that at present three or four divorce Acts crept through every Session, dissolving ill-starred unions in one particular class of life. In such cases marriage might be dissoluble, under existing circumstances, for persons in a high station 1042 of life; but for the general mass of the people—for the great body of the middle and lower classes, who gave her character to Britain, from whom England derived her strength, to whom the country looked n the hour of danger, and on whom the nation at all times relied—marriage was now, as it had been for 1,200 years, indissoluble. The millions might have seen vaguely recorded in their newspaper the passage of a divorce Bill, and they would probably be surprised at the fact, as they certainly would be shocked and disgusted, if they went further, and read those prurient details which were published to satisfy the ill-regulated curiosity of the morbid reader; but they never anticipated such an event as a divorce putting an end to their own union. Once change the law, however, by this Act, and the iron entered the soul of every Christian in the land. The principle would be asserted that marriages might be dissolved, and he asked, would those who wished to avail themselves of the licence be content with such a mockery, a delusion, and a snare, as the costly remedy provided by the present Bill? No; the remedy must become cheaper—it must be a matter for the County Court, or perhaps for the Petty Sessions; and two magistrates, on the first Monday in the month, might be the tribunal for divorcing marriages—and why not? If the principle were once asserted, why should not the remedy be as cheap, as easy, and as speedy as possible? That this was no chimerical anticipation—that such a state of things might take place in a community speaking our language, and in the main regulated by our customs—was proved by the example of that great Republic which, marvellous and admirable as it was in many of the relations of life, was neither to be admired nor to be imitated in the matter of marriage—the great Republic of the United States; for we had been informed that in one town of that confederation—San Francisco—no fewer than 130 divorces had taken place in one year, or one in every three days. He trusted that we might be some time before we reached to such a slate in England; but we should be taking the first step towards it by passing the present measure, which would inevitably sap the foundations of public morality, by putting new ideas into the heads of the people, by creating new wants, and by stimulating them with new temptations. He believed we might not see the fruits of our legislation either 1043 this year or for many years to come. The growth of such vicious weeds would become ranker and ranker as fresh generations sprang up, which had not been educated, as now, in the belief of 1,200 years, that God's own ordinance of marriage was only to be dissolved by God's own act of death; and then would be seen the result of that error of legislation to oppose which was to be called factious, although that opposition had neither Conservatism nor Liberalism, nor any element of politics in it, but was the consequence of a strong desire to preserve intact the morality of this country, which happily in many respects stood very high. In the upper ranks of life there were considerations of society and other inducements, which, though secondary, were still very strong ones, to keep persons whose principles were weak in the path of duty; but among the lower classes, where persons were not rich enough, or had not means enough to choose their own friends, a woman united to her paramour would be considered as honest a woman as she had been before; or if not, she had only to remove a short distance to some other locality where she was not known, and she might go on enjoying the fruits of her evil commerce without shame or fear of earthly punishment. He was surprised to find that so little allusion had been made to that remarkable declaration which, in three weeks, had been signed by more than one-half of the entire clergy of the Established Church, embodying the spontaneous expression of their opposition to this measure—a declaration elicited by none of the clap-trap, and accompanied by none of the excitement, which usually characterizes such demonstrations, but, on the contrary, procured by the private and unobtrusive canvass of a few persons who thought earnestly on the matter. If there were one thing more than another which a prudent Government ought to avoid, and which always tended to the destruction of social order, it was the bringing of the State into collision with any religious body, whether that body were in connection with the State or unestablished; but, in this instance, the Government had gratuitously, without any invitation from the masses, without any popular feeling in its favour, and with no pressing need of any sort being propounded, run full tilt, with their eyes open, into the very jaws of danger. The very calmness of that declaration, and the moderation of the language 1044 in which it was couched, ought, one would have thought, to have frightened them. It was the language of men who felt what they said, and who were determined to act up to what they felt. It was none of those frothy effervescences which disappeared in the sparkle of their own emptiness; but it was the first cloud, no bigger than a man's hand, in the horizon, which in a few years might end in storm, and darkness, and tempest that would precipitate that ruin occasioned by those who had brought on such a crisis. He believed that this was an unexampled case in the history of legislation. The table of the House had been covered night after night with petitions—which might be numbered by hundreds, and the signatures to which might be counted by tens of thousands—against the Bill, while not one petition, so far as he was aware, had been presented in its favour. At least, then, the popularity of the Bill was nothing; its emergency also was nothing, and there was no reason why it should be pressed at this period of an exhausted Session, but the miserable and mischievous desire to boast of having accomplished something. That was the only rational solution that could be given for this most unstatesman like desire to push forward this measure when all others were laid aside. There were many gallant vessels of legal reform and other matters which the Government might have richly freighted; but they had passed them by, and had placed all their legislative treasure on board this—fatal and ill-omened bark,Rigged in th' eclipse and fraught with airs dark.His right hon. Friend the Member for the University of Oxford had well pointed out, on a former occasion, that, while antenuptial incontinence was the great social blot of our population, at least after marriage chastity was very generally observed. If, however, this Bill passed, we might lose even that advantage, and licentiousness overspread the relations of married life. The way in which the evil spirit would eat into the minds of the people, and our hitherto established mode of viewing things would be gradually warped and distorted, was not a lesson that we should learn this year or the year after; but some years hence we should perceive the mischief that had been wrought, when the opinion had become prevalent through the towns and villages of the land, that the solemn vow made before the altar of the Most High—when Christian men and women 1045 took each other for better, for worse, for richer, for poorer, in sickness and in health, till death did them part—meant only that they took each other until they tired of one another's society, till one or other of them seduced or was seduced, and till the magistrate wrote for them the bill of divorcement. When that time should come, that which Parliament was now pressed to do would have its meaning; the tale would be told, the mystery would be solved, and it might be that the future historian of the decline and fall of the British Empire would trace the first dawning of our decadence to the insidious weakening of those moral ties which had hitherto preserved us earnest in our work, and determined in what we undertook to do. The epitaph of England would be—Fœcunda, culpæ sæcula nuptiasPrimùm inquinavere, et genus, et domes.Hoc fonte derivata cladesIn patriam populumque fluxit.
§ MR. WINGFIELD
said, he had been asked by a large body of the clergy of the Established Church to put this question, whether a clergyman, knowing a person had been divorced for adultery, could refuse to marry that person; or, in other words, could he, having refused, be compelled to celebrate such a marriage? He believed that there had been no direct decision on the point, although he had been told that eight years ago a case occurred where it might have been decided; but in consequence of some arrangement between the parties, or other cause, the matter went off, and from that day to the present the question had never been settled. That being so, there was some ground for calling attention to the subject in this House, and asking for information with respect to it. There was another point also to which he had been desired to refer. When persons presented themselves before the surrogate, or applied to have the banns put up, the woman was asked, "Are you a spinster or widow?" the man, "Are you a bachelor or widower?" Now, if these were the only terms in which persons could be described when married either by banns or licence, how were those who had been divorced to be styled? The difficulty did not stop there. One of the rules of the marriage service contained in the Prayer-book was to this effect:—At which day of marriage, if any man do allege and declare any impediment why they may not be coupled together in matrimony by God's law, or the laws of this realm; and will be bound, 1046 and sufficient sureties with him, to the parties; or else put in a caution(to the full value of such charges as the persons to be married do thereby sustain) to prove his allegation; then the solemnization must be deferred until such time as the truth be tried.Now our Prayer-book was, he believed, established by statute, and, as would be seen, it authorised a clergyman to use his discretion on this subject, both with regard to God's law and to human law. He mentioned these facts to show the difficulties which existed in the minds of the clergy, and should be glad if the Attorney General would make the matter clear, and take the proper means of putting the clergy in a right position. At all events, he trusted the clause would be made so restrictive that only the complaining party should be allowed to marry again.
§ MR. COLLINS
said, that a measure more repugnant to the general feeling of the country, more distasteful to the masses of the community, had hardly ever been laid upon the table of that House. He must protest not only against the principle on which it was based, but also against the want of principle it exhibited. He would not enter into the Scriptural argument, but he thought that whatever warrant there might be in St. Matthew for putting away a wife, no encouragement was held out to the remarriage of the parties. The passage "Whosoever marrieth her that is put away committeth adultery" was amply sufficient to show that the marriage bond was still considered in force. If any doubt existed on this point he thought it ought to be entirely removed by the fact that in the early and pure days of the Church marriage was held to be indissoluble, and he thought they ought not to disregard that authority in favour of a doubtful interpretation of a single text. There had been an attempt to throw dust in the eyes of the country by representing this as a Popish and a Protestant question. In support of the Bill, too, reference had been made to the Reformatio Legum and the opinion of Cranmer. Now, when the Reformatio Legum was appealed to, it should be remembered that that authority sanctioned separation a vinculo not merely for adultery but for deadly enmity, desertion, and many other causes, and, therefore, if they adopted the authority of the Reformatio Legum they must be prepared to go much further than it was proposed even by the present Bill. Again, it was hardly to be wondered that that great man Cranmer, living in times of such excitement and confusion, should be 1047 led into the belief that marriage was dissoluble. Cranmer, however, he felt convinced, would not support a Bill of this sort; the Reformatio Legum never sanctioned inequality between the two sexes, and he (Mr. Collins) protested now against the setting up of such an inequality. The law of the land, said the right hon. Gentleman opposite (Mr. Baines), had been stated by Lord Chief Justice Campbell to be in favour of divorce. But what said Lord Wensleydale, an equal authority on that subject? He said he had heard the speech of his noble and learned Friend with great surprise, and that there was not another lawyer in the House nor in the whole profession who would assert that by the common law marriage was dissoluble. But they were told that the practice of privilegia had made that normal which previously had been exceptional legislation. That wretched practice first started in the time of a profligate monarch and court. He should like to know whether if an attempt had been made in that monarch's reign to dissolve a marriage between John Jones and Jane Smith, instead of titled persons, it would have been successful. The House had been told by the hon. and learned Attorney General that the very fact of adultery struck at the root of marriage, and at once created a dissolution thereof. If that were the case, upon what principle were they to deny to the woman the right of divorce against an adulterous husband? If the Attorney General had laid down a correct principle it must follow that wives who continued to live with husbands who had committed adultery must be regarded as living in a state of concubinage. If the objects of matrimony were entirely defeated by adultery, were they not also defeated by any other cause, such as perpetual banishment, desertion, refusal of any intercourse of any kind? It was impossible to stop at the point to which the Bill would carry them. As the Ecclesiastical law stood at present there was perfect equality between the husband and wife. The wife was as much entitled to divorce as the husband. Now, however, for the first time, it was sought to create a distinction between them. He should like to know whether that distinction originated in a fear that the other sex would take advantage of the equal powers given to the woman by the Ecclesiastical Court. But that other sex was patient and long-suffering. The hon. and learned Attorney General, 1048 in effect, wished the House to declare that adultery was the unpardonable sin, and that on no account whatever was a woman, through repentance, to be restored to the position she had lost. The clergy of the land were ready to administer the marriage rites as the Church and Realm had received the same, and at present the Church and the Realm were at unison upon the subject of marriage. It was very true that there were a few exceptional cases in which Acts of Parliament had been passed for a dissolution of marriage, but practically speaking, the clergy as a body had not been called upon to act in contravention of their ordination vows by solemnizing marriage between a divorced person and another party. If this Bill passed they would be compelled to give the sanction of a religious rite to what the clergy would regard as legalized bigamy. But no Act of Parliament could separate a man and his wife. The boasted omnipotence of Parliament was not able to destroy the law of God, or to declare authoritatively what was and what was not consonant with the word of God. The idea that Parliament had any such power could hardly enter into the head of any sane person. God be thanked, few clergymen, he believed, would obey that part of the Bill which enacted that divorced parties might call upon them to celebrate the marriage rite. He believed that almost the whole of the clergy would resolutely refuse to obey that call, even at the risk of being deprived of that livelihood which they had not obtained until after they had expended much time and money in fitting themselves for their calling. He had no doubt that the harsh enactment which the hon. and learned Attorney General had asked the House to sanction with regard to the clergy would hasten the arrival of that day when the Church would be separated from the State. That was an event which he had no doubt no occupant of the Treasury bench wished to see happen in his day, and he therefore hoped that the Government would consent to alter that part of the Bill in Committee. In fact, he hoped the House would hear no more of it. There was no ground for saying that the object of this Bill was to extend to the poor a boon which had hitherto been confined to the rich. To obtain a divorce at present cost £2,000, whereas this Bill would reduce the cost to £300; but how could the man who earned his bread by the sweat of his brow, and received about 15s. or 20s. a week for his 1049 toil, think of having recourse to a central Divorce Court in London, the process of which would cost him £300? The truth was, that if this Bill were carried, divorce cases would have to be sent not only before the County Court Judges, but three justices of the peace, as had been suggested by the hon. Member for Maidstone (Mr. B. Hope). Until that was done nine-tenths of the community would be deprived of the so-called boon of divorce. Not only the present generation, but much more so future generations, would be corrupted by the abandonment of the inviolability of the marriage bond, which had been part of the law of this country from the earlier times. He thought that so important a Bill ought not to be pressed forward at so late a period of the Session, especially as it had taken most people out of doors by surprise. If the Bill were not postponed he hoped that, at all events, such Amendments would he introduced in Committee as would neutralize many of its evil enactments.
§ MR. BUTT
said, that he could not help thinking that a great many of the objections to the Bill had better be reserved until it had gone into Committee. Having voted for the second reading, by which he approved its principle, he was anxious to explain the grounds on which he gave that vote. He did not understand that it was a part of that principle that the consciences of the clergy were to be forced. He should be ready to assent to any Amendment in Committee to prevent the conscientious scruples of the clergy from being overruled in this matter. In voting for the second reading he did not affirm the principle that the guilty party should be allowed to marry again. He thought that also was a question which might be very fairly discussed in Committee. He did not admit that this Bill would, as the hon. Member for Maidstone (Mr. B. Hope) had alleged, overrule their legislation for the previous 1,200 years. It happened, singularly enough, that there was a legislative declaration in our statute book to the effect that in the opinion of the Reformers marriage ought to be dissolved for adultery. The very point as to remarriage arose before the very Parliament of Edward VI., which by establishing the Reformation had established our liberties, in the case of the Marquess of Northampton, who, having obtained a divorce from his Lady from the Ecclesiastical Court, acted upon that decision of the Court as if it entitled him to marry 1050 again. A Commission was issued to great divines, of whom Cranmer was one, to inquire whether that was according to the law of God. That Commission reported to the King that divorce for the cause of adultery, according to the law of God and to the law of England, entitled the husband to marry again. This was affirmed by an Act of Parliament passed expressly for the purpose. True it was repealed again in the reign of Mary; but were they to abandon what was done in the days of Edward VI., and to revert to the reign of Mary for the principles of the Reformation and the principles of English law? Hon. Gentlemen spoke of a "miserable" system of privilegia, and of private Acts having "crept in" by imperceptible degrees; but it should be remembered that every Session the House appointed a Committee expressly to entertain these Divorce Bills. Moreover a public Act was passed in the year 1820 to facilitate proceedings in Divorce Bills. The preamble of that statute referred to certain inconveniences caused to Her Majesty's subjects residing in India who petitioned for a dissolution of marriage by reason of acts of adultery committed in India; and the provisions of the measure declared that evidence taken before the Judges in India should be admissible in this country for the purposes of a divorce. Nor was that all. It was further enacted that the proceedings incident to a Divorce Bill should not be suspended by the prorogation, or even by the dissolution of Parliament. The plain meaning of all this was that in passing these Bills Parliament was discharging a judicial function, and that in cases of adultery divorce was a remedy which every subject of Her Majesty was entitled to claim. The present measure would therefore introduce no new principle, but would merely transfer to a more convenient tribunal a mode of redress which the law of the constitution now made it imperative on the High Court of Parliament to grant. It was said that this Bill would sap the foundations of morality and desecrate the sanctity of marriage. Was the doctrine of the indissolubility of marriage, then, practically found to be conducive to sound morality? The best answer to that question was supplied by comparing the state of society in Italy or in Spain, and in Scotland. Marriage was indissoluble in the former countries, dissoluble in the latter, and he would appeal to the House whether they would not prefer the 1051 morality of Scotland to that of Spain or Italy. Surely nothing could be a greater profanation of marriage than to compel a man to continue to be the husband of a woman who had committed the sin of adultery. For these reasons he would again support the principle of this measure.
§ MR. GLADSTONE
Sir, I do not now propose to enter into a general discussion of this question, because not only am I mindful of the kindness and indulgence with which the House heard me upon it at great length, but I also frankly own that I regard the decision come to by a large majority of this House to proceed with this Bill, the consideration of which commenced on the 24th of July, as being entirely fatal to the adequate and thorough discussion of so vast a subject. Yet, differing from and lamenting that decision as I do, it is my duty to defer to it; and, therefore, I will avoid the general subject. My object, however, in rising is twofold. It is demanded by my respect for the House that I should both offer to it a personal explanation and support my own accuracy on a point of history where it has been impugned. The personal explanation relates to the statements which proceeded from my right hon. Friend the Secretary of State for the Home Department and from my hon. and learned Friend the Attorney General. My right hon. Friend correctly informed the House that I was responsible in the year 1854 for the introduction of a Bill into Parliament which provided for the dissolution of marriage in a manner corresponding with the provisions of the present measure. My hon. and learned Friend went beyond this. He stated that I had been a party to the consideration of the clauses of that Bill in conjunction with himself. Now, these are two very distinct allegations. With respect to the first of them I plead guilty. It was a part, and an important part, of my case against this measure that this was a matter which few of us had had an opportunity of studying or of coming to a proper understanding upon. I plead guilty to having been a consenting party in the year 1854 to the introduction of a Bill of which I knew thus much, that it involved the principle of the dissolution of marriage for adultery. But I told the House myself that it was but recently—that it was only during the present year—that I had been able to make the investigations which led me to form the opinion which I expressed a few nights 1052 ago. And it was perfectly impossible for me, loaded with the duties of a department, which at all times tasked my feeble powers to the utmost, to institute any such examination of this subject as its nature demanded. And I am bound to say this, that the consequence of the condition I was in then—I might also say of the condition which my hon. and learned Friend is in now, was, that if we had the benefit of an interval of freedom during which we could for some months or weeks apply our minds to the study of the history, the theology, and the philosophy of this question, and then return to the discussion of it, our dissertation upon the subject would be infinitely more profitable. As regards the year 1854, then, I acknowledge that I must submit myself to correction for the inconsistency between my opinion then and the opinion I have professed during the present year. But I must say that, in consenting to the bringing in of a Bill for divorce in 1854, I should not then have been prepared to give my assent to any clauses involving a compulsory interference with the religious and ecclesiastical law of the country. And now I come to the assertion of my hon. and learned Friend the Attorney General. I hope I mistook him, but I certainly understood him to state that he and I had together considered the clauses of that Bill. [The ATTORNEY GENERAL was here understood, in explanation, to say that a conversation had passed between him and the right hon. Member for the University of Oxford on the subject of the measure of 1854, and that the right hon. Gentleman had subsequently made it a matter of complaint in the House that the Bill had not been more vigorously prosecuted.] I am glad that I mistook the statement of my hon. and learned Friend on this point. When he speaks of a conversation having taken place between us, no doubt something passed between him and me as to such a measure being brought in. But my hon. and learned Friend represented it as being my Bill, which I say was a most unjust and unfair description. [The ATTORNEY GENERAL.—No!] Pardon me; I have a distinct recollection on the point. But I am glad that my hon. and learned Friend repents. My Bill it certainly was not. I was a party to recognize the principle of a dissolution of marriage for adultery, but of the specific provisions of the measure I knew nothing. My hon. and learned 1053 Friend says that I afterwards complained of these measures not having been vigorously prosecuted. I will not detain the House by referring to matters contained in the records of our debates, but I think he entirely misunderstood the effect of what I stated on that occasion. Everybody, however, may judge for himself on that point. But there is a subject of much greater moment on which he has impugned my accuracy, and with respect to which I must take the liberty of vindicating myself. In the discussion of tonight we have been again brought back to the period of the Reformation, and it is impossible to overstate the importance of this part of the question. It has been found to be almost vitally essential to the case of the advocates of this Bill to connect the introduction of the principle of divorce with the Reformation of religion, and the hon. and learned Gentleman below me (Mr. Butt) says, with perfect truth, that an Act was brought in, in the reign of Edward VI., to give effect to the sentence of an Ecclesiastical Court, and to render it equivalent to a sentence of dissolution by validating a second marriage. The immediate answer to that is that the legal force of this statute was entirely extinguished by its subsequent repeal. "Yes," says the hon. and learned Gentleman, "but who repealed it? It was repealed in the reign of Queen Mary." No doubt that is a way of putting the case which naturally elicits a cheer. But the real point at issue is, "Why was not this Act re-enacted in the reign of Elizabeth?" Of course it was repealed under Queen Mary. Every one of the Acts of Edward VI. relating to religion were repealed under Queen Mary. But such of those Acts as were adopted by the English Government and by the English Reformers were revived by Queen Elizabeth. But that Act remained repealed, and is a repealed Act to this day; and therefore the non-revival of it, when that is taken with the revival of other Acts, is a clear declaration of the opinion of the Legislature with respect to it. I come now to the point of law under Queen Elizabeth, because my hon. and learned Friend the Attorney General, following the steps of the Commissioners of 1853, was bold to assert or assume that during the reign of Elizabeth divorce a vinculo was the law of England, and that it was only at a later period, namely towards the close of that reign, that the principle which has been since 1054 the principle of the Ecclesiastical Courts began to be introduced. I ventured to adduce the testimony of a gentleman named Clarke on this subject, from a work published by him in 1596. He was the senior proctor of Doctors' Commons, he had practiced for thirty-six years, and he says that during the whole of his practice there had been no divorce a vinculo whatever, and that, on the contrary, all the divorces in his time were simply a mensâ et thoro. How does my hon. and learned Friend the Attorney General meet this statement, which is so entirely fatal to his doctrine, because, if that is no evidence as to the law, I submit there is no evidence in the world? My hon. and learned Friend the Attorney General says this was an obscure fellow, a Popish fellow, and not an Englishman, but an Irish alien practising in the Court of Arches in Dublin. Let the House see with what wealth of resource and with what accuracy of information we are invited to legislate on this question. He was an obscure fellow, a Popish fellow, not an Englishman, and he practised in the Court of Arches in Dublin. As to his being a Popish fellow—
THE ATTORNEY GENERAL
was understood to say that he hoped his right hon. Friend's law was better than his memory. His right hon. Friend's enthusiasm must have led him away, for he (the Attorney General,) had not used the term "fellow."
§ MR. GLADSTONE:
I give up the "fellow" then. He was obscure, a Papist, and he practised in the Court of Arches in Ireland. Throwing the "fellow" overboard, for I will willingly make a sacrifice of that, let us try these three allegations. As to his being a Papist, no Popish recusant could practise either now or then in an Ecclesiastical Court; as to his practising in the Court of Arches in Dublin, there is no such Court as the Court of Arches in Dublin; and as to his obscurity, it so happens that he is one of the three daily guides of practice in Doctors' Commons. There are three eminent writers of text-books there; their names are Oughton, Godolphin, and Clarke; the work of Clarke is that from which I quoted; he practised in the court for thirty-six years, namely, from 1560 to 1596, and he declares that the regular practice of the Ecclesiastical Courts was to bind the parties not to remarry, and that they never granted divorce a vinculo. That is the case so far as regards connecting 1055 the principle of divorce with the time of the Reformation. I won't now go into the question at large. Questions, however, have been raised with regard to the state of the law, and so attractive is this subject that my right hon. Friend the Chancellor of the Duchy of Lancaster could not resist adverting to it. He got up to deprecate debate, but he proceeded to make an assertion which appears to lie at the foundation of the whole of our debates,—namely, the assertion that this Bill introduced no novelty into the law of England, and this he sought to establish by quoting the opinion of Lord Campbell. This was answered by an hon. Member who quoted the opinion of Lord Wensleydale. I will answer the quotation from Lord Campbell by quoting Lord Campbell himself; and if any hon. Member who listened with admiration to the dictum of that learned Judge, as it was read by my right hon. Friend, will turn to the Report of the Commissioners of 1853, he will there find a diametrically opposite principle asserted—namely, that by the law of England, properly so called, there is no such thing as the dissolubility of marriage, and he will find that Report signed by the venerated name of Lord Campbell.
§ MR. POWELL
said, he wished to briefly point out what he thought an omission in the explanation given by the Attorney General when he introduced the measure, in not mentioning the mode of procedure in the new court, and the parties competent to give evidence.
§ Question, "That the words proposed to be left out stand part of the Question," put and agreed to:—Main Question put, and agreed to.
§ House in Committee.
§ Preamble postponed.
§ Clause 1, (the first of January next the date at which the Bill shall come into operation) and Clause 2 (terminating the jurisdiction in matters matrimonial now vested in Ecclesiastical Courts,) agreed to.
§ Clause 3 (Court may enforce prior Decrees or Orders).
§ MR. GLADSTONE
said, he must take exception to the designation of the proposed Court, and should therefore move that it be called the Court of Suits Matrimonial, instead of the Court of Marriage and Divorce.
§ Amendment proposed to leave out the words "Marriage and Divorce" in order to insert the words "Suits Matrimonial."
THE ATTORNEY GENERAL
defended 1056 the designation of the Court given in the clause, as being properly derived from the great subjects of marriage and divorce that would be brought under its consideration.
§ MR. BERESFORD HOPE
supported the Amendment of Mr. Gladstone, contending that the subject both of marriage and divorce came under the designation of "suits matrimonial."
§ MR. GLADSTONE
said, the proposed Court had nothing to do with marriage; it was simply a Court of Divorce, and he objected to its being called a Court of Marriage.
§ Question, That the words "Marriage and Divorce" stand part of the clause, put and agreed to. Clause agreed to.
§ Clause 4,(Pending suits shall be transferred to the new Court,)and Clause 5(Gives power to the Judges whose jurisdiction is determined to deliver written judgments,)agreed to.
§ Clause 6 (Jurisdiction over causes matrimonial shall be exercised by a Court to be called "the Court of Marriage and Divorce").
LORD JOHN MANNERS
said, the same question again arose on the clause, and with great respect for the Attorney General, he thought the suggestion of the right hon. Gentleman (Mr. Gladstone), to give a more fitting name to the court, was worthy of consideration. They should recollect that the title of the court would be settled by this clause.
§ MR. DRUMMOND
said, it was very ridiculous to call a court "a Court of Marriage," which had nothing whatever to do with marriage except pulling an end to it. However, he acquitted the Attorney General of the fatherhood of the title; somebody else had found it out and sworn the child on him.
§ Mr. WARREN
said, he would move the substitution of the words "for matrimonial causes and divorce," in the place of the words, "of marriage and divorce." The Amendment would meet the view of the right hon. Gentleman (Mr. Gladstone), and more exactly indicate the nature of the jurisdiction.
§ MR. BOWYER
said, that if this were a court to which persons could resort for the purpose of getting married it might be properly called a Court of Marriage, but it was not a court where people were married, and the proper technical term was "a Court of Matrimonial Causes."
THE ATTORNEY GENERAL
said, it 1057 was perfectly immaterial which was the denomination of the court. It was desirable that a short name should be given to it, and a long name would be very inconvenient. Might they not, out of respect to the other House, leave the title of the court unaltered? The Committee had already passed clauses giving it that denomination.
§ MR. WARREN
said, the former clauses were clauses of reference, but this was a direct and specific enactment. He should take the sense of the Committee on his Amendment.
§ MR. HENLEY
said, the Bill was entitled "An Act to Amend the Law relating to Divorce and Matrimonial Causes," and the name of the Bill should follow the title. The only exception in the transfer of causes, suits, and matters matrimonial to the new court was "licences of marriage." The Bill was to get rid of marriage, and everything constituting marriage was kept out of it. He could not understand why the Attorney General should object to bring the title of the court into harmony with the title of the Bill if, as he said, it was perfectly immaterial.
THE ATTORNEY GENERAL
said, that if it would restore good humour he would let the title be "A Court of Divorce and Matrimonial Causes." The hon. and learned Member for Midhurst (Mr. Warren), would have the satisfaction of thinking that he had contributed to the improvement of the Bill.
§ MR. GLADSTONE
said, that was very hard upon him, who had originated the alteration, but he had been ruthlessly overridden by the hon. and learned Gentleman until he was supported by other hon. Members.
§ MR. WARREN
withdrew his Amendment, and suggested that the references to the court in the third and fourth clauses should be altered hereafter, so as to make them consistent with the new title.
§ The words "of marriage and" were negatived, and the words "and matrimonial causes" were inserted after the word "divorce."
§ Upon Question "That the clause, as amended, stand part of the Bill,"
THE ATTORNEY GENERAL
said, he could give no better reason than that no case of the kind had occurred for 150 years. He spoke of 150 years because he spoke under great alarm of Francis Clarke.
§ MR. BUTT
said, he was not a century and a half old, but he knew an instance in which a suit for jactitation of marriage was instituted in Ireland. A gentleman thought that his wife had been married before she was married to him, and, as it would have been unsafe to marry a second time on the ground that his former marriage was not valid, he applied to the Ecclesiastical Courts for a judicial declaration of the nullity of that marriage.
To leave out the words "Provided always that no suit shall be entertained for Jactitation of Marriage.
THE ATTORNEY GENERAL
did not clearly understand the case mentioned by the hon. and learned Member, but it appeared to him to be a peculiarly Irish mode of wooing for an intended husband to institute a suit for jactitation of marriage against the lady whom he was about to make his wife. He believed that the case supposed by the hon. and learned Member would be found to be provided for by a subsequent clause, which would enable the husband to present a petition praying for a declaration that a valid marriage had not been celebrated.
§ MR. BUTT
said, that the interpretation which the hon. and learned Attorney General had put upon his statement of an Irish suit for jactitation of marriage was a peculiar instance of the oddness of English comprehension. The suit in question was instituted, not against the lady whom the gentleman was about to marry, but against the woman who claimed to be his wife by a previous marriage. He wished the hon. and learned Attorney General to point out the clause which provided a remedy for such cases.
§ MR. GLADSTONE
The supposition raised was, that in some other part of the Bill, as yet undiscovered, there was a provision which would enable the Court to entertain a suit for jactitation of marriage, and upon that supposition they were now asked to leave in the 6th clause, a provision 1059 forbidding the Court from entertaining such a suit. Granting that there was a clause which permitted the Court to entertain the suit, in what a strange condition would the Court find itself, when in one clause the suit was inferentially permitted and in another forbidden.
THE ATTORNEY GENERAL
admitted that he had misapprehended the hon. and learned Member for Youghal (Mr. Butt), who, however, might have contrived to express himself with more lucidity. The objection to the suit for jactitation of marriage was that it was an oppressive and objectionable proceeding, but by the 16th clause of the Bill the new Court was empowered to make a declaration of the nullity of a marriage, or, in other words, to pronounce the very decree obtained at present by a suit for jactitation of marriage.
§ MR. WIGRAM
observed, that he did not think that a declaration of the nullity of a marriage and a suit for jactitation of marriage were precisely one and the same thing. There could be no doubt that the former was retained, even by the 6th clause, but the latter was a different sort of action altogether. A man gave out that he was married to a certain woman. Now, a suit for jactitation of marriage was a proceeding in the Ecclesiastical Courts by which, in such a case, the woman could obtain an injunction restraining the man from any longer pretending to be her husband. Lord Stowell stated that such an action ought to exist in every system of jurisprudence. If the present procedure was oppressive and inconvenient the best course would be to strike out the words prohibiting the suit, but at the same time insert others empowering the Court to abrogate what was objectionable and retain what was unobjectionable in the method of proceeding.
§ SIR ERSKINE PERRY
said, there was another reason why the suit for jactitation of marriage should be continued. It often happened that a woman who was not married boasted or jactitated that she was the wife of a certain man, although she merely lived with him as his mistress. Such a line of conduct might involve serious injury to the lawful wife, for which she ought to have redress. That redress she could now obtain by means of a suit for jactitation of marriage, and he thought it would be wrong to deprive her of it.
THE ATTORNEY GENERAL
said, he would consent to the omission of the proviso, 1060 in the hope that something might be done to mitigate the mischief arising from the suit for jactitation of marriage.
§ Amendment agreed to. Words expunged.
THE ATTORNEY GENERAL
said, that any marriages solemnized between British subjects and under British laws, whether in India or in this country, would be dissoluble by the authority of the Court.
§ MR. WALPOLE
said, that having served as Chairman of the Divorce Committee, his recollection was, that whenever a person asked for a divorce for adultery committed in India, proceedings first took place in the Indian Courts, and then application was made to Parliament upon faith of those proceedings. Under the clause as framed he was not sure that the objection which had been raised was not deserving of consideration; for the clause in its present shape was applicable solely to the jurisdiction vested in the Ecclesiastical Court in England.
§ MR. AYRTON
said, the clause would give only the same jurisdiction which now existed. The Court to be established would have no jurisdiction over persons not domiciled in England.
§ SIR FITZROY KELLY
remarked, that the clause did not relate to those proceedings which had hitherto been carried on by means of the Act of Parliament to which his right hon. Friend referred. The object of the clause was merely to transfer to the new Court the jurisdiction which was now exercised by the various Ecclesiastical Courts in causes matrimonial: and there was no doubt that that jurisdiction did extend to the dissolution of marriages solemnized in India, or other British possessions throughout the world, provided the parties happened to be English subjects resident in England.
§ MR. AYRTON
said, the jurisdiction depended upon where the defendant was domiciled, and not upon where the marriage was solemnized.
§ MR. GLADSTONE
observed, that he did not see what provision was made to meet a class of cases now provided for by Acts of Parliament. Where adultery was committed in India, and the parties never became domiciled in England, at present actions were not commenced here; but, after a preliminary course of proceeding in India, application was made to Parliament 1061 for a dissolution of the marriage. He wished to know whether the clause was adapted to meet such cases?
THE ATTORNEY GENERAL
replied, that in cases where there had been adultery or cruelty in, India, and the party afterwards came to England, the Ecclesiastical Court could entertain a suit. What the Court could now do it was intended the new Court should have power to do. When parties resided in India the ordinary tribunals of that country having Ecclesiastical jurisdiction were able to deal with such matters.
§ SIR. ERSKINE PERRY
said, he saw this difficulty under the Bill. The Courts in India were empowered to pronounce divorces a mensâ et thoro, and that power they would still retain if this Bill were passed. Now, when such a sentence had been pronounced in India, the next step was to come to England for a Bill of divorce from Parliament. He could not see under this Bill how parties were to act in future, inasmuch as they could not in such cases come to this Court, as it would not have the jurisdiction over the cause abinitio.
§ MR. AYRTON
said, they were now considering what was to be the extent of the jurisdiction of the new Court. That jurisdiction, as he understood it, would attach only to persons who were domiciled in this country. If they were domiciled in India the suit would be carried on in the Ecclesiastical Court in India, and upon sentence being pronounced, notwithstanding the passing of this Bill, the parties could apply for a Bill of divorce to the House of Lords.
§ MR. GLADSTONE
remarked that he thought the announcement of the hon. and learned Gentleman was so important as to require explanation from the Attorney General. Was it true that after this Bill had been passed there were still to remain the difficulties and anomalies of the Parliamentary system of divorce? If the hon. Gentleman (Mr. Ayrton) was right in his construction of the clause the promoters of the Bill must have been misled in framing it.
THE ATTORNEY GENERAL
observed that he could only say that if the adultery was committed in India the case would be tried before an Indian tribunal, but if the parties came to this country a petition might be presented to the Court here, which would have power to appoint a commission to take evidence in India, in order to adjudication upon the case.
§ MR. GLADSTONE
said, he perfectly understood the point, so far as regarded parties domiciled in this country, but he wanted to know what provision was made for parties who committed adultery in India and remained domiciled there. If the hon. and learned Gentleman near him (Mr. Ayrton) was correct, divorce a vinculo would still in such cases have to be obtained by Act of Parliament.
§ SIR FITZROY KELLY
said, the present clause referred only to divorce a mensâ et thoro. The dissolution of marriage was another question, and was dealt with in a subsequent clause.
§ MR. WARREN
said, he wished to ask whether the jurisdiction at present vested in the Ecclesiastical Court in the Isle of Man was to be transferred to the new Court or not. The 55th clause gave power to the Secretary of State to order the transference of all records, &c., belonging to any Ecclesiastical Court in England or the Isle of Man to such place as he might appoint, but the sixth section contained no reference to the Isle of Man.
THE ATTORNEY GENERAL
said, in the case of adultery committed in India separation could be obtained in the courts there; but if the parties remained in India they could not have recourse to the jurisdiction of the new Court for divorce a vinculo. The jurisdiction of the new Court did not extend to the Colonies or to the Isle of Man. How the Isle of Man got into the Bill he was unable to say. They were now legislating for England only,—not for Ireland, or Scotland, or for the Colonies,—though no doubt this Bill would be followed by a similar Bill for Ireland and also one for India. The jurisdiction of the new Court, however, could be exercised whenever it happened that one of the parties lived within that jurisdiction.
§ MR. GLADSTONE
said, that he understood now, from what had fallen from the Attorney General, that a new Act, 1063 and not another clause only, would be required for India.
§ MR. HENLEY
said, they had been told that this was the poor man's Bill, but it appeared that the poor of Ireland were not to receive any of its advantages for some time to come. There were to be new Bills for Ireland, for Scotland, and for the Colonies; but if the measure was so beneficial as had been represented it would have been better to include them all in one Bill.
THE SOLICITOR GENERAL
said, he thought the Committee were pursuing an inconvenient course in discussing a matter which the clause immediately under consideration had nothing to do with. The clause before them had no reference to the dissolution of marriage, it merely transferred the jurisdiction of the Ecclesiastical Court to the new Court, and that jurisdiction did not include the dissolution of marriage. That was a question which would be more regularly discussed when they came to a future clause of the Bill.
§ MR. HENLEY
observed, that he thought the discussion that had taken place arose naturally on the present clause. The future clauses of the Bill would only regulate the jurisdiction of the Court in the particular points to which they referred.
§ SIR ERSKINE PERRY
remarked that some provision ought to be inserted in the Bill, expressly declaring in what manner parties residing in India should obtain a dissolution of marriage. If the Committee were of opinion that the Indian Court which now pronounced sentences of divorce a mensâ et thoro should have power to dissolve marriages, words to that effect ought to be inserted in the clause; but if it should be unwilling to allow that power to a single Judge in India—and the Bill proceeded on the principle that one Judge in England should not have that power— but should think that that power ought to be reserved to the Court here, it would be expedient to add a clause to the Bill giving the Court that jurisdiction.
THE ATTORNEY GENERAL
said, that if parties remained in India it could not be expected that they would come into this Court. Nothing could be more absurd than to say that there should be a Court in England for the decision of matrimonial causes between parties remaining in India, but if the parties in India had a cause of 1064 complaint, and would come to this country, or if one of them came, then the Court would take cognizance of the complaint even though the offence were committed out of its jurisdiction. If an Indian Court had pronounced a sentence of divorce a mensâ et thoro, and one of the parties came to this country, he would be able to prosecute his claim for a further remedy in this Court, but even now he could not get an Act of Parliament unless he came over here. A Standing Order of the House of Lords required his presence while the divorce was being prosecuted.
said, that that Standing Order was sometimes suspended. He considered that some provision should be made for Indian cases.
§ MR. GLADSTONE
thought that the House was greatly indebted to the hon. Gentleman opposite (Mr. Lygon) for having raised this point, and notwithstanding what had fallen from the hon. and learned Solicitor General, he was of opinion that this was the proper moment—when the clause respecting the jurisdiction of the new Court was under discussion—for raising it. It had led to a discovery which was entirely new to the House. When the Bill was first introduced it was stated that it was to put an end to the system of obtaining private Acts, but now it appeared very questionable whether it would have that effect. As the hon. Gentleman opposite had pointed out, the Standing Order of the House of Lords, which required the presence of the petitioner, was sometimes suspended. The question was whether the arm of the Court would reach as far as the arm of the Legislature now reached. He hoped the Government would give some clear information to the House on this point, and that if they should be of opinion that the Bill did not confer on the Court powers as extensive as those now possessed by Parliament they would introduce a clause to supply that defect.
§ MR. WALPOLE
remarked that he quite agreed that if this Bill did not put an end to the system of obtaining divorces by legislation it would fail in its main object, and he was not quite sure that he should give his assent to it if it was defective to that extent. The Courts in India had already powers to divorce a mensâ et thoro, and the question now raised was how to deal with divorces a vinculo where parties resided in India. The difficulty with respect to parties in India was that the witnesses could not be brought over here; 1065 but that might be got over by incorporating into the 44th clause, which related to the mode of taking evidence of witnesses abroad, the provisions of the 10 Geo. IV., c. 101, which was passed for the special purpose of enabling the examination of witnesses to be taken in India, in support of Bills of divorce, on account of adultery committed in India. By this means the new Court would have the same facilities as Parliament now possessed for substantiating cases of divorce a vinculo. As all the powers of the Ecclesiastical Courts were to be transferred to the new Court, so ought the powers of the House of Lords, so far as they related to those causes.
§ Mr. BUTT
said, he was afraid that the suggestion of the right hon. Gentleman (Mr. Walpole) would not get over the difficulty. The question to be decided was what tribunal should exercise for the British dominions abroad the power of dissolving marriages which was now exercised by the Legislature. He had been under the impression that the 25th clause of this Bill was intended to give that power to the new Court—by the words, "it shall be lawful for any husband" —but it now appeared from the statement of the hon. and learned Attorney General that that was neither the effect nor the intention of the Bill. The new Court was to have all the powers of the Ecclesiastical Courts and of the Legislature in matrimonial suits and questions of dissolution of marriage, but the exercise of that power was restricted by the territorial jurisdiction conferred on the Court. It was most fortunate that this question had been raised, but he thought that it could be more properly discussed when they came to the 25th clause, in which he would himself move the insertion of words providing that for the purpose of the dissolution of marriage the jurisdiction of the Court should extend to India and the other British dominions.
LORD JOHN MANNERS
said, he wished to ask whether it was intended by an Imperial Act to impose upon the Colonies having independent Legislatures not only a new Court for the settlement of these questions, but also the law according to which they were to be decided? Some Colonies might object to receive such legislation from the Imperial Parliament. Were private Bills still to come from the Colonies, or was there to be established in every colony by the Act 1066 and volition of the Imperial Legislature a Court competent to dissolve marriages? This was surely a question of the very greatest magnitude, and he for one would like to have some information on the point.
THE ATTORNEY GENERAL
said, that it was impossible to provide by Act of Parliament that no more private Bills should be introduced for the purpose of dissolving marriages; that must be left to the Legislature. He conceived that any person residing in any British colony might come to this Court for a decree for the dissolution of marriage. It was a matter for subsequent consideration whether and in what manner the process of the Court should be served upon persons not in this country. Therefore, the question whether tins Court would be open to the whole empire must be answered in the affirmative, but with this qualification, that the Bill did not abolish the Ecclesiastical jurisdiction at present exercised by the Courts in India. Persons, whether in India, Australia, or Canada, would be able to resort to this Court.
LORD JOHN MANNERS
said, that the hon. and learned Gentleman had explained what would be the position of persons living in the Colonies who came over to this country, but his question had more reference to what would be the position of those who were unable to incur the necessary expense for so doing. He understood that the hon. and learned Gentleman felt this difficulty so much that he thought it would be necessary to introduce a separate Act for the Colonies, and he therefore concluded that it would be necessary to establish in each of those Colonies Courts which would do for their inhabitants that which this Bill would do for them if they came to England.
THE ATTORNEY GENERAL
said, that as persons resident abroad might now, under certain regulations, sue in the Courts of Westminster Hall, so might a man, although resident in the most distant part of any of our Colonies, be a suitor in this Court of divorce. What he meant to say, when he spoke of a statute for the Colonies, was that where a colony had now got an Ecclesiastical jurisdiction, that jurisdiction would not be taken away by the operation of this Bill. Suppose the Legislature of any such colony, following the example of this Bill, passed an Act to establish a Court having power to pronounce sentences of divorce, the Crown 1067 would probably be advised to give its as sent to such a measure. This might be done in Canada, or in Australia, or in India. If it were not, the result would be that the existing Ecclesiastical jurisdiction would remain, but nevertheless, instead of being compelled to come to the Imperial Legislature for a divorce, the party aggrieved might, wherever he happened to live, prosecute his suit in the Court to be established under this Bill.
said, he thought that the hon. and learned Attorney General had not quite explained what would be the position of persons in India under this Bill. The Ecclesiastical Courts in England had no jurisdiction in India, and this clause seemed to limit the operations of this Bill to those who were within the jurisdiction of the English Courts. It would, therefore, appear that persons living in India could not obtain a divorce under this Bill without coming to England, in which case this could not be called a poor man's measure or one which would give to the middle classes facilities which had hitherto been enjoyed only by the rich.
§ MR. AYRTON
remarked, that he wished to point out that as the Bill stood there was no power of impleading persons not resident in England, and that, therefore, persons resident in India or in any of the Colonies would be in the same position in which they were at present placed.
§ MR. GLADSTONE
said, that it appeared to him that the discovery now made was a most important one, because it showed that the statement which had been made upon the introduction of the Bill was inaccurate in a most important point. The House had been told that the great object of the Bill was to put an end to the practice of legislative divorces in particular instances, and now the principle was asserted that the Bill would only apply to persons within the jurisdiction of the Court, that was, to persons resident in this country, so that when the offence had been committed in India, or in any of the colonies, the guilty person, not wishing to facilitate a divorce, would take care not to be resident in England, and the remedy to the aggrieved person would remain as it was at present—a matter of special legislative enactment. Before the Bill passed through Committee he hoped that the difficulty would be got rid of.
THE ATTORNEY GENERAL
said, that if his right hon. Friend were conversant with the practice of Courts of Law 1068 he would be aware that those Courts had power to serve notices on British subjects abroad, and in certain cases, where notices had not been served in consequence of the impossibility of finding the party, to proceed to trial as if such notice had been duly served, and it was his intention to move a clause conferring a similar power upon this new Court.
§ Clause, as amended, agreed to; as was also Clause 7 (substituting a Judicial Separation for a Decree of Divorce a mensâ et thoro).
§ Clause 8 (Judges of the Court).
§ MR. DRUMMOND
said, that he had given notice of an Amendment, in the form of a proviso, on this clause, which perhaps might have properly been moved on Clause 9, but, as the matter was doubtful, he would move it then, in order to avoid the possibility of its being said to him, when Clause 9 was called on, that he was too late. The subject to which the Amendment referred was one upon which a great deal of boasting had been used by the promoters of the Bill. If there was one point more than another on which those hon. Gentlemen had loudly declaimed, and used more jactitation in short, it was that they said this is a poor man's Bill; they said this is a Bill to bring down the luxury of divorce to the cottage door; but how was that assertion borne out? The new Court would consist of the Lord Chancellor, the Lord Chief Justice of the Queen's Bench, the Lord Chief Justice of the Common Pleas, the Chief Baron of the Exchequer, and the Judge of the Court of Probate, and could any human being believe that that would be an inexpensive Court? It was said by some, why do you oppose this humane Bill which is intended for the benefit of the poor; you allow the peer or the millionnaire to have this luxury, why refuse it to the poor? To that he could only reply that, much as he objected to the principle of the Bill, it was at the same time the duty of its promoters to be honest in bringing it forward; and as the measure stood not one word of the plea of the promoters of it was true. It was not a Bill for the poor, and if the Bill were carried at all he would wish to see some facility for relief afforded to the poorer classes. In cases where either party was heir to a peerage, or where the property settled at 1069 the time of marriage consisted of charges on land, he should not care if they had a court of great men, who, as had been said of the Court of Chancery, would, "like a great boa constrictor swallow an estate whole, and digest it at leisure." Let them have their expensive court for such cases, but let the poor have redress in a cheaper way; for if there was any class that required relief at all it was the poorer class. He had known a case where a young woman in service had married a young man and they had taken a lodging-house, which, through the drunken habits of the husband, they were obliged to give up. The man then went to Australia and the wife returned to service, and when she had saved a little money the husband came back and claimed all of it. That was no uncommon case, and it was because he did not wish to see an Act passed into law which, under the pretence of being a poor man's Bill, was of advantage only to the rich, that he had placed the Amendment on the paper which stood in his name. He would therefore move to add to Clause 8 the following words:—And the said Court shall alone have jurisdiction in all cases where either of the parties to any suits before it is heir to an hereditary peerage, or where the property settled at the time of their marriage consisted of charges on land of the annual value of—; but in all cases where there are no hereditary peerages in remainder, and where no realty has been settled on the marriage, and where the parties do not reside in London, the said Judge Ordinary shall authorize the Judge of the County Court in the district where the parties reside to try the case, and pronounce a decree for judicial separation.
said, he must remind the hon. Member for Surrey, that he had given notice for the Amendment on Clause 9.
§ MR. DRUMMOND
admitted he had done so, but he was afraid it would be said he ought to have proposed it in Clause 8. He would, however, in accordance with the suggestion of the Chairman, withdraw his Amendment, with the view of submitting it to the notice of the Committee when Clause 9 was brought under discussion.
§ MR. MALINS
said, that with respect to the clause immediately under the consideration of the Committee, he thought that it was impossible that the Lord Chancellor, the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron of the Exchequer, who, in conjunction with the Judge of the Court 1070 of Probate, were to preside in the new Court, could devote the necessary time and attention to the business of that tribunal without serious detriment to the performance of those duties which in their respective Courts they at present discharged. He would therefore ask the hon. and learned Attorney General whether he could give the Committee any information on the subject.
THE ATTORNEY GENERAL
said, he had felt the difficulty to which the hon. and learned Gentleman the Member for Wallingford (Mr. Malins) had referred, but that his apprehensions were not shared in by some of the highest legal authorities. As however he deemed that considerable inconvenience might, no doubt, be found to result from the operation of the clause as it stood, he should merely ask the Committee to pass it pro formâ, upon the understanding that at some future stage of the Bill it should be open to further consideration. So far as he individually was concerned, he was disposed to enlarge the number of those Judges from among whom the associates of the Judge Ordinary of the new tribunal might be selected, by comprising within that number all the Judges of the Superior Courts of Law and Equity.
§ MR. MALINS
said, he was of opinion that the enlargement of the area of the Judges who might preside in the new Court would hardly be found to obviate the inconveniences which might be supposed to arise under the operation of the clause. In support of that opinion he might observe that an Act had been passed in 1852 empowering the Lord Chancellor, the Vice Chancellor, and the Master of the Rolls to call to their aid one or more of the Judges of the Courts of Common Law in case they should stand in need of such assistance; but, notwithstanding that these powers thus given by Act of Parliament were freely exercised, he believed there was scarcely an instance in which the attendance of even a single Common Law Judge could be obtained before the lapse of a month. In a case of great importance in which he himself had been engaged, the decision of the Vice Chancellor had been postponed from July to November, owing to that cause; and how much greater would be the difficulty of securing the attendance of two Common Law Judges he would leave it to the Committee to determine.
§ MR. HENLEY
observed, that four-tenths 1071 of the business which would be brought before the new Court of Probate had hitherto been discharged in the country districts, and when that circumstance, as well as the fact that all appeals not only upon the question of the dissolution of the marriage tie, but with respect to matters of minor importance, were to be submitted to the full court, was taken into consideration, he thought it would be admitted that great inconvenience as well as expense to the suitors must be the result. He should, therefore, suggest the expediency of providing that the Judge Ordinary should at stated periods go on circuit throughout the country with the view of obviating that inconvenience and expense, or that the County Courts should have jurisdiction in matters such as these to which he had referred in accordance with the proposition of the hon. Member for Surrey (Mr. Drummond). He would, however, observe one very curious effect of his clause, namely, that though heirs to a peerage would have the advantage of the three learned Judges, peers themselves would be remitted to the County Court Judges. The clause, at all events, was one which demanded further discussion, and he thought it desirable that it should with that view be postponed.
doubted if a similar Bill were brought in for Ireland whether the Roman Catholic Judges would, from conscientious motives, be able to administer the law under it.
§ MR. WHITESIDE
suggested that the Bill should be withdrawn for the present Session. It was clear that the hon. and learned Attorney General was not in agreement with certain other persons who had advised the Government in the preparation of this clause. The clause never could be carried out, because the Judges of the Common Law Courts would never be found at leisure to undertake the crop of divorces that were to pour into the new Court under the Act. For himself he could not see the necessity of having three Judges in the new Court. If the Lord Chancellor could sit alone and decide causes, why should the Judge of the new Court have two assistants to puzzle him? The construction of the Court under this clause was in fact a dead failure, and he protested against the House being kept by the noble Lord at the head of the Government until far in the month of August trying to amend such a Bill. The noble Lord was always good-humoured in the House of Commons, and was probably happier there than anywhere 1072 else. But, as we were at war with half the human race, he would recommend the noble Lord to endeavour to wind up those disputes, and leave this Bill to the meditations of the hon. and learned Attorney General during the recess. If the hon. and learned Gentleman trusted to his own abilities, of which he (Mr. Whiteside) had a high opinion, some measure might be produced during the recess which would not provoke his own censure upon his own Bill. He moved that the Chairman report progress.
§ Motion made and Question proposed, "That the Chairman do report progress and ask leave to sit again."
§ MR. MALINS
said, that during the discussion upon the Motion of his right hon. Friend (Mr. Henley) the other night, it was asserted that this Bill would take as much time for its discussion as any measure of the same length that ever occupied the attention of Parliament. It was replied that the Bill was so well matured and so perfect that the Chairman would only have to read the marginal note and pass the clause. The House had now been in Committee three hours, and they had not got through the 8th clause, although four of the clauses were mere matters of form. The doubtful points of the Bill, and those which had aroused the feelings of the country were not yet approached, and would not be arrived at for two or three days more. He trusted that the noble Lord at the head of the Government would not force the House at this period of the Session to discuss a measure of so much importance. The noble Lord, no doubt, had a great deal to attend to, and it was not to be expected that he should attend much to the details of this Bill. He could therefore understand the good faith with which the noble Lord said he could not see why the House should not go on with the Bill. He must do the noble Lord the justice to say that he had one transcendent merit, and did not neglect his own business, but was always present when the Government Bills were before the House. But how long did the noble Lord intend to keep Parliament sitting? Would he have no compassion upon hon. Members? The noble Lord had complimented him upon his vigour of body and mind, but he could assure the noble Lord that he was utterly exhausted and worn down, and that other hon. Members were in even a worse state. Did the noble Lord intend to exhaust hon. Members this Session, and prevent them 1073 from coming back when Parliament again met? An hon. Member had discovered a blot in the 6th clause, and there was another blot in the 8th clause which would render the Bill unworkable. The measure ought at once to be withdrawn. It was introduced in the other House, prepared he knew not how, or by whom. It professed to be founded upon the Report of a Commission which came to the conclusions arrived at by the right hon. Gentleman the Member for Cambridge University. That right hon. Gentleman was a man of singular simplicity of mind, who never formed an opinion without great care, and did not like to part with it when he had formed it. From the specimen which the noble Lord had seen to-night, he must be convinced of the hopelessness of getting through the Bill this Session. The Attorney General had obtained the sanction of the House to the second reading by a large majority, and if he withdrew it he might apply his leisure during the recess to remove the imperfections with which the Bill now abounded.
§ VISCOUNT PALMERSTON
said, that hon. Gentlemen on the other side kept asking him when the Session was likely to be over. He would remind them, in reply, of the very sagacious exhortation of the late Mr. O'Connell to public meetings. Mr. O'Connell used to say, "Don't all call out for silence, for if you all call silence there never will be silence." In the same way, if hon. Members consumed a great part of the evening in asking when the Session would be over, there would be very little chance of the Session ever being over. The hon. and learned Member for Wallingford informed him it was quite hopeless that the Bill could pass through its various stages, and recommended him to withdraw it. Now, he was of rather a sanguine disposition, and was not at all accustomed to flounder in the Slough of Despond. He could therefore assure the hon. and learned Gentleman that he was not hopeless of passing the Bill, and that he should not become hopeless of passing it until the measure arrived at its last stage and the House affirmed by a large majority that it would not pass it at all. The Bill had occupied the serious attention of the whole Government, and if, as the hon. and learned Gentleman implied, he had not taken an active part in the discussion, it was because the measure had been in such able hands that it would have been presumption in any one not a member 1074 of the legal profession to attempt to furnish better arguments than those of his hon. and learned Friend the Attorney General. He really hoped that hon. Members would not be led away by the idea that the Government were likely to give up the Bill. He did not complain of the length of the discussion. It was natural that hon. Members should desire to express their opinions on the subject. The Government were not anxious to curtail improperly the discussion, but were ready to sit there as many nights or weeks as might be necessary to carry on the discussion. But when the hon. and learned Member made an appeal ad misericordiam on the ground that the House was exhausted by the length of its labours, he must be allowed to state that the Session in this Parliament had been very short, for it did not begin till about the middle of May. If the House had been sitting from November through the winter and summer up to the present time, it might be expected that some hon. Members, not so strong as the hon. and learned Gentleman, might think that they had done enough; but, considering how short a time had been consumed during the present Session, he did not believe that hon. Members would grudge a further attendance in order to consider maturely, as far as might be necessary, this and other measures of great importance still depending before the House.
§ MR. GLADSTONE
remarked, that he had listened with some amusement to his noble Friend's statement with regard to the shortness of the Session, seeing that three fourths of the Members had been sitting in that House since the month of January, their attendance being interrupted only by the agreeable interlude of a general election, and that his noble Friend one or two nights ago, in reply to an appeal from the noble Lord the Member for London, maintained that the Session must be considered not from the time at which it begun but at that at which it would conclude. His noble Friend had had an affirmation of the principle of his Bill by a decisive majority, and no doubt the minority ought to bow to the fairly expressed will of the majority; and if his noble Friend chose to persevere with the measure they must struggle on at whatever personal inconvenience, and maturely discuss the provisions of the Bill. Still, it could not be maintained that the Bill was of a nature peculiarly urgent to be passed in the present Session. He would also 1075 remind his noble Friend that the same duty which bound the minority to comply with the declared opinion of the majority on the principle of the Bill did not absolve them from the obligation of watching, discussing, modifying, and altering the provisions of the measure. As an opponent of the Bill it might answer his purpose to retire from the Committee altogether, and depart into the country, allowing the Bill to pass with all its blemishes; but such a course he held to be contrary to his duty, and he conceived that it was incumbent on those who objected to the Bill to attend there night after night and week after week, to debate line by line and word by word, if necessary, the details of a Bill of such great importance. In what position did the House find itself that night? After a discussion carried on exclusively by hon. Gentlemen who had not hitherto had an opportunity of expressing their sentiments on the measure, the House went into Committee, and had passed seven clauses nominally only. The Committee had hardly passed any clause of importance. The 6th clause, it was true, had been passed, but in passing that, after an hour's discussion, it was found that there was a great gap in the Bill, and the hon. and learned Attorney General announced to the Committee that he would have important provisions to propose to supply that gap. The Committee had now come to the first of other important clauses, relating to the constitution of the Court, and the hon. and learned Attorney General, valuing his reputation as a legist beyond any temporary or momentary advantage, frankly confessed that he had been at issue with other great authorities on this vital point. Therefore, hon. Members were not to be kept sitting in that House simply for the purpose of discussing a Bill on the provisions of which the Ministers had made up their minds, but they were also to be kept there while the Ministers should be considering with the hon. and learned Attorney General what should be the constitution of the Court, either overriding the hon. and learned Attorney General, or being ridden over by him on that subject. Under these circumstances he thought that matter had been laid for some further consideration on the part of the Government as to the course that should be taken with respect to the Bill.
THE ATTORNEY GENERAL
said, the statement of the right hon. Gentleman was totally at variance with the facts of the 1076 case. It was undoubtedly true that he considered that before the Bill was passed by the House of Lords it would have been better to enlarge the number of Judges of whom the Court was to be constituted, but he had not been at issue with noble and learned Lords on that subject. His attention having been called to the circumstance, which the right hon. and learned Member for Dublin University (Mr. Napier) referred to, and observing that, unless the Bill should be put in the form in which the Irish Bill must be framed, there would be a difference between the two tribunals, he was desirous of having an opportunity of pointing that out again in order to enlarge the number of the Judges by whom the Court was to be constituted, and that was the whole of the proposition he had made to the Committee. With reference to the statement that there was a blot in the Bill the right hon. Gentleman was likewise wrong, for all he had stated was that, whereas the 39th section contained a provision for the service of the petition either within or without Her Majesty's dominions, he intended to make that more complete by a reference to certain statutes.
observed, that as something had been said about the period of the Session he wished to remind the Committee that irrespective of any measure under consideration there existed strong reasons in his mind why the Session should not suffer an adjournment at the present period. This was a time of emergency, and no one knew what news might arrive in a few days from an important part of the empire. Therefore, totally irrespective of this measure or any other which might have been introduced into the House, he thought it desirable that in this emergency the representatives of the people should be assembled at their post assisting and supporting, with all the authority and moral influence they possessed, the Executive Government. It had been said that because the principle of the Bill had been carried the Government might be content with that success, and leave the consideration of the details till another Session. But did those who opposed the measure as being contrary to every principle of religion and morality, mean to say that they were prepared to enter into any understanding that when the measure should be taken up in another Session they would allow the principle to pass without any opposition? Consistently with their views they could not and would not adopt such a course. The 1077 result of the abandonment of the measure now would be that the time spent in its discussion in that House and elsewhere would be entirely thrown away, and he would only observe that if on the part of those who supported the measure there had been an unwillingness to put themselves before the House, that had risen from the feeling which they entertained that the object of the Government, of the majority of the House, and of the public, would be best promoted by listening patiently, and not occupying the public time.
§ MR. HENLEY
said, that he did not think, after the speech of the hon. and learned Attorney General, that their labours in discussing this Bill were likely to be very short, because the hon. and learned Gentleman had stated with respect to a very important part of it, the constitution of the Court, that in consequence of an accidental observation made by his right hon. and learned Friend the Member for the University of Dublin, a new light had been thrown into his mind and he found that it would be necessary to reconsider that portion of the Bill. It was impossible to say what other incidental observations might be made which would render it necessary to reconsider the construction of other parts of the Bill over and over again. The noble Lord at the head of the Government stated that the Bill had received the careful consideration of the Government; but, if so, it was astonishing that they had not come to a conclusion as to the constitution of the Court. He was surprised at the strong language in which the hon. and learned Attorney General had condemned that portion of the measure, because he should have thought that it was one of the points on which the Government would have formed a definite opinion. The Attorney General, however, had condemned the constitution of the Court in language more forcible than any Member of the Opposition probably would have ventured on.
The ATTORNEY GENERAL
thought that a rather uncandid advantage had been taken of what he had stated; but it would be a lesson to him how in future he adopted any suggestions from the other side. As the Committee did not appear to be in a disposition to proceed with the Bill at present, however, he should not object to reporting progress.
§ Question put and agreed to.
§ House resumed.
§ Committee report progress; to sit again on Thursday.