§ Order for Committee read.
§ House in Committee.
§ Clause 16 (Court of Marriage to act on the principles of the Ecclesiastical Courts).1227
said, he would suggest that the words "or annul" should be added in the second line, in order that petitions for declaring the nullity of marriage should be treated in the same manner as petitions for dissolution of marriage.
THE ATTORNEY GENERAL
said, suits for dissolution of marriage were unknown to the Ecclesiastical Courts, but suits for nullity of marriage were known to them. It would be unnecessary to add the words suggested by the hon. Gentleman.
§ Clause agreed to.
§ Clause 17 (Protection of Wife's earnings when deserted by her Husband).
§ SIR ERSKINE PERRY
stated, that he had several Amendments to propose, but they were all based on the same principle. He had given his assent to the main principle of the Bill with considerable reluctance, but he had done so upon two grounds—first, because he was assured that no new principle of law was to be introduced; and, next, because, as it was a fact that the practice of granting divorces had become established in this country, it would be better that they should be granted by a competent tribunal and not by the Legislature. He had heard, however, last night a statement from the noble Lord at the head of the Government which considerably alarmed him, namely, that the policy of the Bill was to discourage those judicial separations which now took place, and to substitute in all cases of dissension between man and wife divorce a vinculo matrimonii. He (Sir Erskine Perry) had the strongest objections to the principle of divorce being extended beyond what already prevailed in this country, and he did so, not upon theological grounds, but from purely secular reasons. He believed it was open to a Christian Legislature to permit divorces if it should think it expedient to do so. That being so, the question arose how far it would be expedient to allow divorces, and, looking at the history of all countries where great facilities for divorce had existed, he was inclined to abstain as much as possible from enlarging the practice in this country. Such, moreover, had always been the policy adopted in Christian Europe, while on the other hand divorce was permitted amongst the Jews who also practised polygamy. The fact was, that one was the consequence of the other, and the relation had been very well put by Lightfoot, who said: "The Jews use polygamy and divorce for one and the same reason; they must have 1228 change, and it is all for the sake of lust." This enabled them to understand the disputed passage in Matthew, and was confirmatory of the view taken by the fathers of the Reformation. There had been constant reference made to Scotland as an example by which they might be guided as a country where facilities for divorce had prevailed without producing evil results, but he did not think that was an example which should govern them in dealing with the case of England. Scotland was nothing more than a large parish, and the whole population did not exceed that of London. Every person in that country was busily engaged in watching his neighbours. He (Sir Erskine Perry) knew the country and knew that, with the inquisitiveness which belonged to the race, every man there knew what the other did, and thus a moral control was exercised which had proved very salutary in practice. But such a state of things would not be applicable here. Devonshire would care little for the opinion of Northumberland. Not only had theologians objected to divorce, but the greatest sceptics, such as Hume, Gibbon, and Auguste Comte; but the practice having prevailed here for 200 years, it must be permitted to continue within proper limits. He conceived that judicial separations should be encouraged in order that when those unhapy differences arose which all knew too frequently happened between man and wife there might be a proper remedy for the evil. With regard to minor divorces, the remedy provided by the Bill was most imperfect. The clause now before them had a very just and benevolent object in view—to protect a wife's earnings when deserted by her husband, but it was extremely ill drawn, and would not effect its purpose. It failed to define the wife's rights with sufficient clearness, and would be a most difficult clause to administer. It gave protection to the property of a wife when she was deserted by her husband "for one year or upwards," but if the husband came down upon the unfortunate woman at the end of eleven months, she would have no protection whatever. Under this provision a man might come upon his wife every eleven months, and sweep away all she had. Then, if a wife had £50 of property her husband, or her husband's creditors, might seize the whole of that property, and be fined to the extent of £20, as proposed by the clause. Then, in addition, there was the absurdity that while the wife's 1229 property was protected from the husband, there was no definition as to whom it should belong, so that if the wife were trading alone, her creditors could not touch it, nor could they sue a married woman. Altogether it was quite certain that the clause could not be allowed to remain in its present form, and he wished to amend it so as that the deserted wife should be able to apply to a justice of the peace for the protection of her property, leaving out the portion relating to fines. In the next place he proposed to strike out the words at the commencement of the clause relating to the desertion of the wife for a certain period by the husband, and to suggest other alterations which would make the law stand thus:—That if a woman had been maintaining herself by her lawful industry, and her property was in danger of being seized by her husband, she should be entitled to obtain the protection of a justice of the peace in the first instance, and in the second a more permanent protection by petitioning the County Court Judge of the district. At present, however, he should move the omission of the words 'deserted by her husband.'
§ Amendment proposed: To leave out from the word 'is' to the word 'maintaining.'
§ Question proposed, That the words "deserted by her husband" stand part of the clause.
§ MR. HARDY
said, he must protest against the Amendments of the hon. Member, as an attempt to carry in the present Bill that which he had failed to do in a separate Bill of his own. He (Mr. Hardy) trusted that the Committee would never sanction any measure which went to separate the interests of a husband and wife who were living together. The object of the hon. Member was to give to a married woman the privilege of a feme sole to leave the husband responsible for her debts, while her earnings were not to be responsible for his. A wife, even while living with her husband, was to be entitled to go before a justice of the peace, who was to have the power of granting an injunction against the husband intermeddling with her earnings. In short it would be much better for a man to live with a mistress at once. He would not touch the clause itself, which he believed quite unmanageable, further than to observe that it gave to justices of the peace powers greater than had ever before been contemplated.
§ SIR ERSKINE PERRY
said, that in confirmation of the views he had taken, he might mention that he had received a letter from a Liverpool magistrate, to the effect that wretched women were daily coming before him stating that they could support themselves and children, if only protected from their husbands, who made a practice of seizing and selling whatever property they acquired. In short, there were many wives who were desirous of living with their husbands, and who could support both them and their children, if they had only some legal protection for their earnings.
§ MR. MALINS
said, nothing could be more monstrous than the proposal of the hon. Member for Devonport, and he hoped the House would not sanction it for a moment. If a husband and wife were living together in harmony, he carrying on the trade of a tailor, and she of a milliner, the proposition of the hon. Member would enable the wife to obtain an injunction against her husband that would prevent him having anything whatever to do with her earnings. This was completely opposed to the law and policy of England, and he trusted that it would be at once rejected by the House. The proposition was entirely one-sided, it did not give any protection to a husband against a drunken or extravagant wife. The application to the magistrate would be ex parte, for as the husband would have run away, the wife only could be heard.
THE ATTORNEY GENERAL
said, the proposal would affirm that the profits of a wife's industry, even when she was living with her husband should be set apart for her separate use. This would open a door to endless collusion, and he hoped it would be withdrawn.
§ Amendment by leave withdrawn.
§ MR. DRUMMOND
moved to insert in line twenty-six after the word 'husband,' the words, 'or has been cruelly treated;' the effect of which would be to extend the remedy to the wife not only in cases of desertion, but in cases of ill-treatment.
§ SIR JOHN BULLER
moved an Amendment providing that the application should be made to two justices in petty sessions instead of to one justice only.
§ Motion made, That the word 'any' be left out, and that the words 'two or more' be inserted instead thereof.1231
§ Question proposed, That the word 'any' stand part of the clause.
THE ATTORNEY GENERAL
said, that the Committee were doubtless aware of the manner in which this clause had got into the Bill in the House of Lords. [Mr. GLADSTONE: Not at all.] It was not in the Bill as originally introduced by the Government, but a noble and learned Lord from motives of benevolence and humanity was desirous of introducing into this country a practice which prevailed in France, where a wife who had been deserted or cruelly beaten by her husband could apply to a magistrate—even of the lowest class—and obtain an order to protect her earnings against her husband. He was not prepared to say that some provision of the sort might not be useful in this country, particularly among the lower orders, where a wife, having been deserted by her husband for a considerable period of time had established a business for the maintenance of herself and her children, and then the drunken husband returning had, either by himself or some creditor, swept away all the property which she had scraped together. But the manner in which this improvement had been embodied in the Bill was so imperfect and so complicated, and the machinery was so incapable of being worked with any certainty, that he could not avoid coming to the conclusion that the opinion of the right hon. Gentleman the Member for Oxfordshire (Mr. Henley), who had given notice of a Motion to expunge the clause, was that which ought to be adopted by the Committee. He should be very glad if he could see his way to a certain, ready, and economical mode of giving wives in the humbler classes this description of protection; but he was afraid that the clause, as it at present stood, if passed into law, would be most mischievous. He should therefore recommend those hon. Members who had given notices of Amendment on the clause to withdraw them, and to agree in the Motion of the right hon. Gentleman the Member for Oxfordshire for its rejection.
§ MR. HENLEY
said, he was very desirous of framing some clause which would carry out the object of the 17th clause. Although it was impossible to meet all cases, yet something might be done to remedy the evils against which this provision was aimed. But to amend this clause was simply impossible. [The ATTORNEY GENERAL: Hear, hear!] The first difficulty would be for the magistrate to decide what 1232 was the legal meaning of desertion. This was a matter with which the Ecclesiastical Courts did not deal, because they saw that when the parties were separate they could do no more for them, and, therefore, there were no text books upon the subject; and, as the subsequent desertions referred to in this Act were desertions for two years, there would for a long time be no judicial decisions upon the subject, and magistrates would be left entirely in the dark. That was an objection in limine. But beyond that another point was started by the clause. It appeared that a magistrate had jurisdiction to deal with a case on its being sworn before him by a wife that her earnings were interfered with; but when they came to the enacting part of the clause, 'property' was included in the same category with 'earnings.' Now, 'property' meant something in possession, while 'earnings' meant something to be acquired in the future; this, therefore, was a combination which it was worth while reflecting whether they ought to preserve. He would throw out as a suggestion to his hon. and learned Friend the Attorney General that the better course would be to allow a woman, in case of desertion, to obtain protection for her property to a certain amount upon application to the County Court. Those Courts being Courts of Record, the Judges of them would not be exposed to the actions by which a magistrate acting under this clause as it stood might be harassed. This might not meet all cases, but he believed that such a provision would act much more beneficially than this clause, which would in practice be found to be wholly inoperative. He thought that the clause had better be struck out, because he believed that it could not be amended.
reminded the Committee that the question before them was, "That the word 'any' stand part of the clause."
§ MR. AYRTON
said, he had thought from the language of Ministers on the previous night, that they were to have 'the Bill, the whole Bill, and nothing but the Bill;' but now it appeared the Committee were restored to freedom of discussion on all the clauses, and the first clause they came to they found was not an exposition of the sentiments of the Government, but something that had been put into the Bill at the instance of somebody else. He wanted to know what the Attorney General meant by the expression, "the clause would be struck out for the present," and 1233 what, supposing that he intended to carry out the object of it by some other means, was the remedy he intended to substitute? The remedy must be given to the people generally, for it was impossible the liberal Members could allow a Bill to pass which constituted a Court that afforded a remedy to the rich alone. The Government declared that their object was to extend to the poor the benefit which the rich alone could now command, but the very first clause they came to that provided a really cheap remedy the Attorney General struck out. He thought they ought to devise some tribunal nearer than London for the poor man who lived in Yorkshire.
§ MR. BOOKER-BLAKEMORE
said, that he was personally cognizant of two cases which came within the description given by the Attorney General, and he must strongly urge both that hon. and learned Gentleman and the Solicitor General to apply their powerful minds to the discovery of some practical remedy for this scandal to our legislation. He was ready to endorse the suggestion that had been thrown out that it was rather too serious a responsibility to cast upon an individual magistrate the duty of declaring what amounted to a case of desertion. But then, why not delegate that duty to the Chairman of Quarter Sessions, or the Vice Chairman? Or why not send the case before the general sessions or the petty sessions? He should, however, prefer magistrates having jurisdiction to sending them to the already overburdened County Courts. He hoped, at all events, that the Attorney General would give a pledge that in case the present clause were expunged some analogous provision would be substituted for it.
remarked, that he was sorry to hear that the Attorney General had proposed to abandon this clause, which was one of the best intentioned sections of the Bill. No persons were more deserving of sympathy and protection than poor women who, having been deserted by their husbands, supported their families by their own exertions. He did not think that a magistrate could ever have any difficulty as to the meaning of the word 'deserted.' Any man with one tenth part of the good sense possessed by his right hon. Friend the Member for Oxfordshire could come to a fair and just conclusion as to whether or not a woman had been deserted by her husband. All that the magistrate was to do was to make an order to protect for a 1234 time the earnings of the woman; and, if it were thought desirable, a provision might be inserted giving the creditors power to apply to the Judge of a County Court to set aside this order. It would be a reproach to the Committee if, after floundering through a number of clauses to erect an unapproachable tribunal, it could not, on arriving at a clause giving a domestic tribunal on the spot for the protection of the earnings of the poor wife deserted by her husband, make that clause perfect for its purpose. They would desert their duty to their constituents if they allowed the Bill to pass without a provision embodying the principle which was admitted to be just by the present clause.
§ SIR JAMES GRAHAM
said, he was disposed to agree with the hon. Member for the Tower Hamlets (Mr. Ayrton) and the right hon. and learned Member for the University of Dublin (Mr. Napier) in thinking that the principle of the present clause was a valuable one. The difficulty was in giving effect to it, and he agreed with the Attorney General and the right hon. Member for Oxfordshire (Mr. Henley) in opinion that the machinery provided by the clause was objectionable, and that it was not susceptible of amendment with any chance of making it effective. He did not think that the power should be entrusted to a single justice, nor did he think the matter would be much improved by giving the power to two justices in petty sessions. On the other hand, he conceived that, after negativing Clause 17, some small extension of Clause 18 would be an immense improvement, and would give entire effect to that which was generally thought desirable. In that clause (giving protectiom to a wife's property) he did not see why the word 'earnings' might not be introduced, and the words "whether she has made any such application as aforesaid to a justice of the peace or not," should be omitted. The power of adjudication under Clause 18 was given to the new Court to be allocated in London, but he was disposed to think it ought to be extended to the County Courts. Thus the necessity of applying to the Central Court in London would be avoided, and a Court of Record in each district would be enabled to deal with the earnings as well as the property of the wife.
§ MR. HENLEY
said, his right hon. Friend (Mr. Napier) had been good enough to tell him that he (Mr. Henley) ought to have no difficulty in determining as to 1235 cases of desertion. But his opinion, formed from long experience, was, that there were no cases so painful and difficult to deal with as those which would arise under the present clause. When a man went to seek labour at a distance it was difficult to ascertain whether he had or had not done his duty by his family while away. Under the present clause the question would immediately arise whether the man's absence amounted to desertion. The right hon. and learned Gentleman said that there was no difficulty in dealing with this sort of cases; but the right hon. and learned Gentleman, who dealt usually with great legal questions, was not so well acquainted with these small matters as country gentlemen who had to deal with them every day.
THE ATTORNEY GENERAL
observed that the words he used when he addressed the Committee on a former occasion were intended to intimate that he should be sorry to part with this Bill without making an attempt to embody in it the salutary and humane principle contained in this clause; but it was desirable to let the Committee proceed with the discussion of the remaining clauses, or some of the remaining clauses, before he made up his mind as to the form of machinery, which he should be able to suggest to the Committee in a new clause for the purpose of carrying that principle into effect. He had passed the matter over and over again in his mind, and though he did not pretend to have the practical experience which the right hon. Gentleman who last spoke had of the difficulties of the case, those difficulties had nevertheless presented themselves in theory to his mind, and he really for the moment was at a loss to determine what course should be pursued. If, however, the Committee would accept a pledge from him that the present should not be the last discussion on this principle, but that another opportunity for considering it should be afforded, he would endeavour to use all his resources in the meantime to get a clause framed which the Committee might think would establish a course of procedure better adapted than the present clause for the interests of those humbler classes, and likely to afford them the same benefit.
§ SIR ERSKINE PERRY
said, he wished to say, as the subject had occupied his attention for the last two years, that the assurance the hon. and learned Attorney General was most satisfactory. The Committee all seemed unanimous in opinion that the principle of the clause was bene- 1236 volent and sound and ought to be carried out, and he merely wished to observe with regard to the suggestion of the right hon. Member for Carlisle that justices of the peace were the only Judges who could give instant relief, for the sittings of County Court Judges were only holden once a month, and in the meantime great mischief might be done to the wife. He would allow the deserted wife to petition either the Court in London or the County Court Judge, and this would remove a portion of the evils complained of.
§ SIR JOHN BULLER
said, that after the explanation given by the hon. and learned Attorney General he should not press his Amendment. He agreed with the right hon. Member for Carlisle (Sir J. Graham) in thinking that the wisest plan to adopt would be either to negative the present clause with the view of amending the 18th clause, or to leave the Attorney General to bring up a new clause altogether.
§ Amendment, by leave, withdrawn.
THE ATTORNEY GENERAL
said, the 17th and 18th clauses were connected together, and in the new clause which he should propose in Committee he thought that protction for a wife's earnings and property should be given in the inferior Courts to a limited amount, and that protection in the superior Court for a wife's property and acquisitions should be afforded to any amount. The 17th and 18th clauses should therefore be omitted.
§ Mr. WARREN
said, he trusted that the two clauses would be so remodelled as to satisfy all classes that the Legislature properly appreciated the grievance at present felt, and was anxious to remove it.
§ Clause negatived; as was also Clause 18.
§ Clause 19 (Judicial Separation by reason of Desertion of Husband or Wife).
§ MR. BUTT
said, he rose to propose in line 22, after the word 'Court,' to add the words, 'or the County Court of the district in which he or she resides.' The effect of the Amendment which he proposed would be, in the particular case for which this clause provided redress, to enable the injured party to apply not only to the central Court established in London, but to the cheap and expeditions tribunal which would be able to give local redress. At present desertion was in the Ecclesiastical Courts no ground for a divorce a mensâ et thoro, the same thing as was called in this Bill a judicial separation, the remedy for a wife there being to institute a suit for the restitution of conjugal rights, 1237 and if she succeeded in her litigation the Court commanded the husband to take her home and treat her with the affection which was her due. Beyond an appeal to the Ecclesiastical Courts a deserted wife certainly had two other remedies; she might throw herself as a pauper upon the parish in order to make the husband amenable for criminal neglect, and this had been done by ladies of rank and station in order to punish husbands who had deserted them; or she might obtain support from relatives or others who would trust her, and they could bring an action against the husband for the cost of her maintenance. In the former case the remedy would be administered by a bench of magistrates; in the latter the remedy would be by civil action, and it might be afforded by that very County Court to which he proposed, by a more direct jurisdiction, to give an ample and summary remedy to the wife. He could not conceal from himself, however, that this raised the far wider and more important question of whether the redress provided by the Bill was to be administered solely by one great central Court or by local tribunals. He confessed that he thought that upon the ultimate decision of that question would depend whether this Bill were to be an injury or a boon, whether it were to facilitate the applications of men who were not blessed with opulence to the tribunals of the land, or were to throw obstructions in their way, whether it were to be a Bill of reform or of centralization. The Bill included two measures which were perfectly distinct—one for concentrating all the scattered local jurisdictions into one supreme and central Court, and the other for conferring upon that Court a power of dissolving the marriage tie, to the extent and in the manner that could now be done by an Act of the Legislature; and he almost regretted that these questions had not been made the subject of two distinct Bills, so that hon. Members might have the opportunity of discussing the provisions applicable to the one without treading on those of the other. His Amendment touched only the first portion of the Bill, and he was induced to make it because he was strongly opposed to centralization, and because he thought that they should endeavour to preserve to the people of England that great principle of local administration which he believed had established their liberties in the days of Alfred, and which preserved them in the days of Queen Victoria. He thought 1238 it would be better if the administration of the local Courts were defective, to reform them rather than take away their jurisdiction altogether; and although the principle of centralization was not a popular one, he was bound to confess that he had not as yet heard any hon. Member propose a proper local tribunal for the determination of these matrimonial suits, unless, as had been suggested by the noble Lord the Member for the City of London, the Judge going assize should try them. There were at this moment as many as fifty local Courts to which a wife injured by the cruelty and desertion of her husband could apply, and from which she could obtain such redress as a judicial separation and an award of alimony might afford. The Bill swept away all those local tribunals, and established in their stead one central Court in London, which was to adjudicate upon all these cases. It facilitated divorce but it destroyed the means of obtaining separations, divorce being essentially the remedy of the man, and separation being the protection to the woman. It provided that if a husband deserted his wife for the space of two years without reasonable cause, she might apply for a judicial separation; but when they told her that in order to obtain that separation she must apply to a Court in London, the remedy became a mockery and a delusion, because the very fact of her being deserted proved that she was in poverty and distress. She was the very person of all others for whom a cheap and easily accessible tribunal ought to be provided, whereas it was proposed to restrict her to a tribunal difficult of access and expensive. Now, was this question of desertion so intricate a one that County Courts could not decide it? Why, these Courts might be called upon to decide it already. If an action were brought, as it might be, in the County Court to recover from a husband for the maintenance of his wife, the Judges would have to decide, first, whether the wife was really deserted; and, secondly, whether the husband was justified in deserting her. This action might be repeated, and damages recovered as often as was necessary, and thus the question in all its bearings would be settled by the County Courts. Now, why, instead, of exercising such a jurisdiction, and having to decide the same matter perhaps over and over again, should these Courts not be allowed to afford in these cases a permanent and effective relief? He wished the point he 1239 had raised to be decided on its merits. At the same time it did involve the larger question, whether there ought not to be a local tribunal administering every relief which was given under this Bill. At all events, he thought in the case of desertion there could be no objection to leave the determination of this question in the hands of such a tribunal, and he would therefore move the insertion, after 'Court,' of the words 'or the County Court of the district in which he or she resides.'
§ Amendment proposed, "After the word 'Court,' to insert the words 'or the County Court of the district in which he or she resides.'"
§ MR. PACKE
said, he was not at all prepared to deny the necessity of a local tribunal of some kind; but he thought it perfectly impossible that in populous districts, at all events, the County Court Judges could find time to try causes of this description in addition to the discharge of their ordinary duties. A central Court only would, he believed, be very unsatisfactory to the country; but the County Courts were already sufficiently occupied, and local tribunals of some other kind must therefore be constituted.
§ MR. DRUMMOND
said, the hon. and learned Gentleman (Mr. Butt), approving of the principle of the Bill, took advantage of the Courts which already existed to extend its operation; but the hon. Gentleman (Mr. Packe) seemed to wish that some other local tribunals should be created. Surely it was better to take advantage of those which already existed, than to set about to create new ones.
LORD JOHN MANNERS
said, he intended to propose the introduction of words into the clause which would have a more extended meaning than those of the hon. and learned Member for Youghal (Mr. Butt.) The words he referred to, while they would include the County Courts, would not shut the door against the establishment of new Courts, if the Government thought it desirable to establish them. Should the Amendment of the hon. and learned Member for Youghal be successful, he (Lord J. Manners) would then move the insertion of other words that would carry the principle still further. If the hon. and learned Gentleman's Amendment should fail, then he would propose the insertion of words to enable the establishment of Courts of local jurisdiction.
THE ATTORNEY GENERAL
was 1240 extremely desirous of rendering proceedings of this description as inexpensive and facile as they could be made with due regard to the interests of morality. The Committee would observe, however, that this clause involved points of the highest possible importance. The question for the Court to decide on a case of desertion was this, whether there was any reasonable excuse for such desertion. Now, adultery was a reasonable excuse. All the grounds upon which judicial separations and divorces were based might therefore come into controversy upon an application of this kind. Suppose an application made in the first instance for a judicial separation, and on grounds which afterwards involved an application for divorce, how difficult it would be to say that the decision of the inferior tribunal upon the selfsame question should be altogether slighted and disregarded by the superior Court! It seemed to him, therefore, that it would be inexpedient to give jurisdiction to the inferior tribunals to try for a subordinate purpose the very same question which might afterwards again have to be tried by the superior tribunal. If the question of divorce and the adultery on which it was founded was of such importance that it ought to be discussed with all the safeguards afforded by a tribunal of a superior order, then he thought it ought not to be permitted to come within the cognizance of an inferior Court, which might enable parties to have an antecedent discussion as it were by way of precognition of the case. He thought, therefore, that the hon. and learned Gentleman should endeavour so to guard his Amendment that judicial separations should only be granted upon grounds which were insufficient for final divorce. He the (Attorney General) should not at all object to empower the County Court to consider and decide on the question of judicial separation when that question did not involve issues which would constitute a case for final divorce; but he should be sorry, upon an application for such a separation, to see the County Court virtually charged with the duty of trying the question of adultery, which might afterwards go before the highest tribunal. If it met with the approbation of the Committee, he had no objection to accept the Amendment to this extent, and to clothe the County Court with the power of adjudicating on judicial separations whenever they depended on grounds insufficient to warrant divorce.
THE ATTORNEY GENERAL
But suppose the wife had presented a petition against the husband on the ground of desertion, and that the husband appeared and charged his wife with adultery, in such case the Amendment would give the County Court power to inquire into the latter charge. If, however, in answer to the wife's petition, the husband alleged such an excuse as did not fall within the reasons for a final divorce, then he would have no objection to the County Courts having jurisdiction.
LORD JOHN MANNERS
said, he would beg to ask the Attorney General how the clause, as he proposed to accept it, would be in unison with the 6th clause, which handed over all these causes to the new Court which was to be constituted?
§ LORD JOHN RUSSELL
I too wish to ask a question, because really this proposition of the hon. and learned Gentleman seems to me to lead to most important consequences. The only reason, as I understand the matter, for the 19th clause, is that desertion has not hitherto been a cause of divorce a mensâ et thoro, and it is therefore necessary to introduce this clause in order to enable the Court to pronounce a judicial separation. But there is another cause of judicial separation, hitherto called divorces a mensâ et thoro, which is not stated in this clause, as the law is not to be altered in that respect—namely, cruelty by the husband to the wife, which is alluded to in the 25th clause, with respect to divorces a vinculo. Now if, as the Attorney General states, we are to give by this clause power to the County Court to decide upon cases of desertion, it seems to me that we ought to grant to the County Court a similar power of deciding on questions of cruelty and all questions that are at present causes for divorce a mensâ et thoro. The principle on which the hon. and learned Gentleman proceeds, and which I think is a very just principle, is that, as you have destroyed by the 2nd clause a great number of local Courts, and have transferred their authority to a central Court, you should give some equivalent of that which is destroyed—that is to say, you should give some Court or tribunal to which a, wife, in case of cruelty inflicted on her by her husband, might readily apply for the remedy which she seeks. But the Amendment of the hon. and learned Gentleman is of far greater 1242 scope than that, for I think it would admit other causes of judicial separation. I therefore wish to be informed by the Attorney General whether it is only cases of adultery, or cases in which adultery may be alleged merely as an excuse, that are to be excluded from the proposed Amendment to invest the County Court with authority. I do not enter into the question whether the County Court is a competent tribunal for these cases; I will leave that part of the subject in the hands of the Government and of the learned Attorney General.
§ LORD LOVAINE
oberved, that he could not pretend to say whether County Courts were fit tribunals to entertain applications for relief in case of desertion, but it appeared to him that the utility of the Amendment would be wholly destroyed if questions of adultery were to be excluded from the consideration of the local Courts; for then, if a woman sued her husband in the County Court, the latter might at once stop the inquiry by alleging adultery, and thus the jurisdiction of the Court would be ousted at once.
§ SIR ERSKINE PERRY
said, that the reluctance of the Attorney General to admit the Amendment was founded on his unwillingness to give the County Courts power to deal with questions which would afterwards have to be tried by the central Court. But he would remind the Committee that the County Courts had already jurisdiction to try actions in which adultery was alleged as an excuse for the non-performance of the husband's obligations. The proposition of the hon. and learned Gentleman was, that in case of desertion for two years the County Court should have the power of pronouncing a decree of judicial separation, but the Committee could not stop there. They must allow separations to take place in all cases in which the Court above could pronounce, except in cases of decree for an absolute separation. Then he felt as strongly as any Member of the Committee reluctance to give the County Court power to dissolve marriage. That power, he thought, ought to be restricted entirely to the superior Court in London; but, inasmuch as it was of importance in the case of the poor to bring remedies for grievances to the doors of the poor, he hoped that the Attorney General would withdraw his objection, and assent to the whole of the Amendment.
§ MR. GLADSTONE
It is very important, I think, that we should well consider 1243 the principle upon which we are now to proceed, because very different views of it have been expressed in the course of these discussions. The principle laid down by my noble Friend the Member for the City of London, and I think by the majority of the Members of the Committee, has been this, that apart from the obligation to give facilities for giving effect to the principles of this new Bill—namely, the dissolution of marriage—we ought to continue and not restrict the facilities for obtaining a judicial separation already existing. But, to my great surprise, and to my still greater regret, last night we heard my noble Friend at the head of the Government distinctly denounce that doctrine, and state that he was opposed to giving facilities for judicial separation, and that he wished to place parties, who desired to resort to courts of justice with respect to these matters, in a position of having to choose between continuing to bear the evils and sufferings of ill-matched union without mitigation at home, and seeking for the extreme remedy of dissolution of marriage. Now, I am glad to think that the Attorney General, if I understood him rightly, does not adhere to that principle of the noble Lord at the head of the Government, because the Attorney General to-night has said that he is disposed to give facilities for the attainment of judicial separation, although he qualified that by adding, I think, some words such as these, as far as that could be done without danger to public morality.' I must confess that upon that subject I do not entertain very great apprehension. I do not believe that any serious danger to public morality is likely to ensue from giving facilities for judicial separation, because in that case the parties are not incapable of agreeing to live together again. I return my thanks to the hon. and learned Gentleman the Member for Youghal (Mr. Butt) for having at last discovered a method by which we may formally raise the question to which it was found as impossible for us to give existence last night, as it will be hereafter for poor people to get at the Central Court of divorce. But now, with regard to the opinions which have been expressed by my hon. and learned Friend the Attorney General. He is disposed to go to a certain extent along with the hon. and learned Member for Youghal; but I understood him to say that he objected to allow the County Court to handle a matter which might be treated 1244 under the provisions of this Bill by the central Courts in London, and which touch the question of divorce a vinculo. Now, there may be much force in that objection, but until that objection is more fully unfolded by the hon. and learned Attorney General, I confess that my mind was not very much struck by the force of it, because we have that very state of things existing under the present law, inasmuch as the Ecclesiastical Court does that very thing. It handles a question of adultery as a County Court or a Court of Assize handles a question of adultery in connection with a suit for criminal conversation. But the whole matter which those Courts touch in such proceedings may nevertheless, be subsequently dealt with by the House of Lords, and be dealt with in a sense entirely different from that in which they had been dealt with by inferior tribunals. Therefore, I do not see upon the surface the force of the objection to the hon. and learned Gentleman's proposition as it has been slated by the Attorney General. But, now let me point out another difficulty—one that seems to me a rather serious one—namely, the anomaly which would be occasioned by the adoption of the proposal as my hon. and learned Friend the Attorney General has shaped it. We are all, I think, agreed that this Amendment is of great consequence. We should not confine applications for judicial separation to County Courts simply to cases of desertion, but to all those cases in which an ecclesiastical divorce may now be had. My hon. and learned Friend the Attorney General would be prepared to give jurisdiction to local tribunals, subject only to the limitation which he has mentioned. But, then, it appears to me that we should be landed in a state of things the most anomalous possible. We are all agreed that the County Court should be empowered to deal with all cases of judicial separation, except when the matter was such that it was capable of becoming a ground of suit for divorce a vinculo. Well, the consequence would be this:—By the Bill as it stands the adultery of the wife enables the husband to institute a suit or present a petition for divorce a vinculo; but the adultery of the husband does not correpondingly enable the wife to present a similar petition, or to institute a similar suit. Consequently, the adultery of the husband—I am speaking, of course, apart from the usual accompaniments in certain 1245 cases, and generally of the adultery of the husband—inasmuch as it could not become a ground of suit for divorce a vinculo, might go before a County Court. The wife might go to the County Court and obtain a sentence of judicial separation for the adultery of the husband, as it has been proposed by the hon. and learned Gentleman, but the husband could not obtain from the County Court a sentence of judicial separation for the adultery of the wife, because the adultery of the wife might be made a subject of a petition for a divorce a vinculo. I confess it appears to me that that is a most objectionable principle. I think that my noble Friend at the head of the Government laid down rather precipitately last night that in the case of adultery of the wife the husband should have no remedy but that of applying for a divorce a vinculo. I do not think that my noble Friend would be satisfied with a state of things in which a County Court might grant a sentence of judicial separation to a wife in case of the adultery of the husband, but in case of the adultery of the wife no remedy could be obtained by the husband but that of divorce a vinculo.
§ MR. WIGRAM
said, the issue to be tried under the 18th clause seemed to him to be identically the same as that under the 19th, namely, whether a wife had been deserted by her husband, and whether that desertion was continued without any reasonable excuse for a certain period. He submitted that the decision on the one clause should rule the decision on the other, and therefore, as they had postponed the 18th they should take the same course with regard to the I9th, in order that they might be brought into one harmonious system.
§ SIR WILLIAM HEATHCOTE
said, he concurred with his hon. and learned Friend the Member for the University of Cambridge in thinking that they ought to have a clear understanding of the principle the Attorney General wished to establish in all those clauses which referred to the question of judicial separation, and which would come within the meaning of the hon. and learned Member for Youghal's Amendment; and whether the hon. and learned Gentleman intended to waive his objection about questions of adultery incidentally arising. If they precluded the lower courts from entertaining questions of that extent they would practically preclude them from entertaining the subject at all.
§ MR. MALINS
said, he also was of 1246 opinion that this question ought to be postponed until they had ascertained what system was to be adopted in lieu of that contained in Clauses 17 and 18. No doubt, in order to deal with questions of separation a mensâ et thoro, it was highly important to have some other tribunal than that in London; but he contended that the County Courts, overburthened as they already were with the functions which the Legislature had already devolved upon them, were not in a position to investigate and decide such questions, and that in the event of the Committee imposing this new jurisdiction upon them the result would be that the experiment would break down. He could not help thinking, also, that the Attorney General himself had a great misgiving as to the propriety of extending such a jurisdiction to the County Court.
§ VISCOUNT GODERICH
said, as he understood the Attorney General, he was willing to agree to the proposal of the hon. and learned Member for Youghal, provided it was so worded that in the event of circumstances transpiring, on the trial of the question of desertion in the County Court, showing that there was ground for an application for a divorce a vinculo, such a state of things should operate as a bar to the jurisdiction of the County Court, and that the case should then be remitted for trial to the superior Court. But if that arrangement were adopted he (Lord Goderich) could imagine a case where a man on the charge of desertion being established against him in court, might say he had been guilty of adultery as well as of desertion. In that case the wife would be ousted of her right to a judicial separation, and be driven to seek her remedy in the superior Court in London for the graver offence, or have that offence left unredressed.
§ MR. W. EWART
said, he wished to ask whether it was intended that the courts under this Bill should be itinerating? for if they were, he expected from them more harmony of decision than if such questions were to be dealt with by a number of independent local tribunals. If, however, the superior Court was not to be an itinerating one, there should be some local tribunals having the power to decree judicial separations; but he was not disposed to give that power to the County Courts.
§ MR. COLLINS
said, as this Bill put an end to the existing local jurisdictions in the matter of judicial separations it was desirable to substitute some other kind of local tribunal for dealing with such applications. 1247 If the Bill was to be workable there must be a local jurisdiction, and the only question was whether they should have a separate staff of Judges perambulating the country to grant judicial separation, or whether they should make use of the existing tribunals. The circuits of the County Court Judges might be contracted if necessary, and the number of those Judges increased.
§ MR. BUTT
said, he certainly felt it his duty to take the sense of the Committee on his Amendment. The noble Lord (Lord John Russell) was not present last night when the opponents of centralisation attempted to raise the more general question that local Courts should have the power of judicial separation, but were defeated. They had now, however, an other opportunity of discussing that point. Where was the inconvenience of a County Court determining whether a wife had committed adultery or not? The question might be raised in the smallest Ecclesiastical Court in the kingdom, and the House of Lords at present, so far from feeling it an infringement of their jurisdiction, had made it a Standing Order that they would not entertain a petition for divorce until there had been a decision by an inferior Court. A County Court at this moment tried the very issue to which the Attorney General objected. Any tradesman who supplied necessaries to the deserted wife might sue the husband for the cost; the husband might answer that he had a good cause for deserting her; and then the Judge must decide. After all the credit which had been given to the veteran law reformer, by whom the County Courts were originated, it was surprising to hear that those tribunals had proved such an utter failure that this duty could not be entrusted to them. If they were not now fit to exercise such a jurisdiction they ought to be made so. This was not a question of absolute divorce, but merely of whether the acts of the husband had been such as to entitle the wife to a separate maintenance from him. The question was fairly before the Committee, and he hoped the Committee would dispose of his proposition now, and not allow the clause to be postponed. The clauses of the Bill ought not to be made the subject of a perpetual series of adjournments.
THE ATTORNEY GENERAL
said, he did not think this a clause which could be postponed. A very great principle now stood for determination by the Committee, and he was not satisfied that that deter- 1248 mination should be taken otherwise than by a division. The principle to be decided was this—should the County Courts be armed with authority not only equal to that possessed by the Consistory Court of London, to decree separation a mensâ et thoro, but to add to the existing causes of divorce the cause of desertion? Divorce a mensâ et thoro was now granted on the ground of cruelty and adultery. This Bill introduced a new principle on that subject—namely, desertion. If, therefore, the County Court was to have power to decree separation on the one ground, no doubt the advocates of such a proposition wished that tribunal to have equal power to decree separation on the other. Now he fully agreed that the County Court sought to have all the authority requisite for the expeditious administration of justice in matters of daily necessity such as the collection of debts; but it was a very different thing to enable them to dispose in an equally summary manner with the rare and exceptional questions contemplated by this measure. The jurisdiction of those tribunals was at present limited to mere questions of civil debt, and certainly never was intended to include delicate and difficult questions, which could not be satisfactorily investigated without judicial ability of the highest order, or decided with due solemnity in a court where some 100 or 150 suitors were all clamorous to have their particular suits determined on the same day. This was a subject demanding the most serious and attentive consideration. Those who imagined that the County Courts could be converted into orderly and decorous assemblies like the higher courts of justice, with which they were all familiar, were grievously mistaken. Individual hardships might arise from denying this remedy to persons who were unable to resort to the only place where this species of justice could be properly dispensed; but then it was very seldom indeed that relief in the shape of judicial separation was desired by the humbler classes. Those classes desired to be separated only in cases where there were grounds to justify them in entering into other connections. The wife would undoubtedly wish to be protected against the husband; and such protection, extending to her property and to her support, might be accorded to her without the necessity of this species of judicial proceeding. It was, desirable, however, that this remedy should be equally available for all classes; but the question remained—could that 1249 remedy be satisfactorily administered by these tribunals? He believed it could not. If the only issue were that of simple desertion continued for two years, it would be a thing so notorious and so palpable to all the world as to require no judicial investigation whatever. But when the question was whether the desertion had been without reasonable excuse, it opened up a wide range of judicial inquiry which could not be properly dealt with in a County Court. If, however, the Committee determined that these were fit matters to come within the cognizance of such local tribunals, then the whole subject of judicial separation must be brought within their jurisdiction. The proposition before the Committee was without any limit in point of property or condition in life. It was undoubtedly a departure from the general ground on which they had hitherto thought themselves justified in sanctioning a resort to this species of ex tempore tribunal. He trusted the Committee would agree upon the question, and proceed to a division upon it.
§ MR. BUTT
said, that he desired to raise the question that there should be a local remedy in the most general terms. But if any hon. Member thought that there should be a limit to the powers of the local Courts that could be introduced by a proviso. What he wished to decide was, whether they should provide any substitute for the local tribunals they were going to take away.
§ MR. DRUMMOND
said, that when he brought forward an Amendment transferring part of this jurisdiction to the County Courts, and did limit their jurisdiction to certain ranks, the Attorney General opposed that on the ground that it was making a distinction between rich and poor. But now, when an Amendment was proposed not making that distinction, the Attorney General opposed that on the ground that it opened the County Courts equally to all classes. He had not invented the County Courts, but had proposed the clause which he originally submitted to the Committee in the belief that the Government were really desirous to extend a boon to the middle and lower classes. But he now confessed his folly, and with deep regret promised that he would never believe them again.
§ MR. AYRTON
observed he thought it desirable that the Committee should understand clearly that they were about to divide on the simple and broad proposition whether the people were to be allowed to resort to the County Courts or not. If 1250 that principle were affirmed, he was quite satisfied that the great ability of the Attorney General would enable him to frame whatever clauses were necessary to make the resort to the County Courts safe and advantageous to the community. The award of alimony would, of course, exclude the jurisdiction of any other court. If the alimony were to be £10, £20, or £30 a year the County Courts would be available only to people in a humbler sphere, and there would be no chance of a peeress going to the County Court for a small sum, when it would exclude her from any further claims on the noble husband from whom she was to be separated. In the amount of alimony there was a, complete line of demarcation obtainable without resorting to the most offensive clauses of the hon. Member for West Surrey (Mr. Drummond), which were to give or take away jurisdiction according to the amount of property possessed, as if they did not value virtue, but only the money which was held in conjunction with a wife.
LORD JOHN MANNERS
said, it was quite clear from the discussion that many hon. Members were as anxious as the hon. and learned Member for Youghal to maintain local jurisdiction who did not agree that the County Court was a fit court to exercise it. He himself could not say that he thought the County Court was so fit; and, therefore, in hope of saving the time of the Committee, and of avoiding two divisions, which might fritter away their strength, he would suggest that the hon. and learned Member should adopt words which would not confine the local jurisdiction to the County Courts. He would propose to add the words "or to any Court hereinafter authorized by this Act."
§ MR. MALINS
said, he could not consent to the withdrawal of the hon. and learned Member's Amendment. He wished to have the decision of the Committee upon the question that the jurisdiction should be given to the County Courts. The hon. and learned Member for Youghal seemed to wish to back out of his proposition. It was natural that when a man thought he was going to be beaten he should try to avoid it. But he wanted to know the opinion of the Committee about the County Courts, and he objected to the Amendment being withdrawn.
§ MR. BUTT
said, he did not know that he was going to be beaten. He did not 1251 understand why it should be said that he was going to back out of anything. He believed that any hon. Member could object to the withdrawal of a Motion, but the hon. and learned Member for Wallingford should not force him to a division. The hon. and learned Member might prevent his withdrawing the Amendment, but he could not prevent his declining to vote for it, and he hoped hon. Members who were anxious to establish local jurisdictions would pay him the compliment of voting against his Amendment, or, at all events, of not voting for it. They would thus defeat the notable scheme of the hon. and learned Member, who by throwing the apple of discord sought to create division among those who, but for him, would be united.
§ MR. HENLEY
said, the sincerity of the hon. and learned Member for Youghal deserved the greatest praise. He was very sorry that his hon. and learned Friend the Member for Wallingford endeavoured to pin them to words which would compel many who sat on that side of the House to vote against local jurisdiction. He trusted he would allow the Amendment to be withdrawn, and the division to be taken upon the Amendment of the noble Lord the Member for North Leicestershire.
§ Question put, and negatived.
§ Another Amendment proposed in page 5, line 22, after the word Court, to insert the words "or to any Court hereinafter authorised by this Act."
§ SIR GEORGE GREY
thought the noble Lord ought to state what court was contemplated by his Amendment. One class of those courts was well known to the country, but the Committee had just unanimously decided that the proposed jurisdiction should not be given to the County Courts, and that it should be given to some court which had at present no existence.
LORD JOHN MANNERS
said, that the proposals made by the hon. and learned Member for Youghal had been, to his astonishment, acceded to on the part of the Government by the Attorney General, who even went so far as to promise that if the hon. and learned Member (Mr. Butt) would consent to certain restrictions on the operation of the Amendment he (the Attorney General) would so frame the clause in accordance with the Amendment that before the Bill emerged from Committee he would incorporate the question of local jurisdiction into the Bill. ["No, no 1252 !"] He certainly understood that the hon. and learned Attorney General accepted the Amendment with certain restrictions. On that a long discussion had arisen, in the course of which many hon. Gentlemen, who were in favour of local jurisdiction, said they did not approve of the particular courts proposed by the hon. and learned Member for Youghal. It appeared to him that unless this great question of local jurisdiction were settled in favour of the principle embodied in the Amendment the Committee would commit a grievous injustice upon the less wealthy portion of the community. He therefore proposed an Amendment of a general character, so that if the Attorney General were sincere in adopting the principle of the Amendment of the hon. and learned Member, and in admitting persons living at a great distance from this central court to have recourse to local courts, it might be open to the Government to meet the general desire that had been expressed, without departing from the principle of the Bill. It was not, however, for hon. Members who might suggest Amendments of the Bill to be prepared with clauses to carry those Amendments into effect. They had not the time, even if they had the ability, to do so. When a Bill of the greatest importance was submitted to the House at the last moment all that hon. Members sitting near him could do was to suggest how the Government, who were responsible for the Bill, could carry out the wishes and just demands of the people. It was essential that the people should not be deprived of the resort to local jurisdiction. He had proposed an Amendment affirming this principle, which would not preclude the Committee from considering hereafter what ought to be the exact nature and constitution of those courts, but which would leave it to the Government to deliberate how the wishes of the Committee might best be carried out; and it was certainly with that view that the hon. and learned Member for Youghal had consented that his Amendment should be negatived. What he wished now to do was to test the opinion of the Committee. If they were in favour of a local jurisdiction they would vote for his Amendment. If they believed, on the contrary, that the jurisdiction ought to be centralized in London, and that the remedy proposed to be given should only be available to persons of rank, wealth, and social position, then let them vote against his Amend- 1253 ment, and carry the measure as it stood, which would then be a Bill for the relief of the rich and comparatively comfortable classes, but would offer no remedy to the humbler and poorer classes of the community.
§ SIR GEORGE GREY
said, that the noble Lord had not attempted even to shadow out the courts to which he proposed to give local jurisdiction, and the Attorney General was asked to frame clauses and carry out intentions which the noble Lord was not able to describe. The effect of carrying out his Amendment would be to throw upon the Government a responsibility which they must disclaim. The object of the Amendment was to propose, at an expense which had not been adverted to, the establishment throughout the country of a set of courts which did not now exist, the only local Courts that now existed by which this jurisdiction could be exercised having been, by the unanimous vote of the House, rejected. If the noble Lord said that no existing courts were capable of exercising local jurisdiction, let the Committee know what new courts ought, in the opinion of the noble Lord, to be created before they were asked to pass this Amendment. He must say that this was the most shabby course of proceeding that he ever heard of. If the noble Lord wished to declare that this jurisdiction ought not to be exercised by the County Courts he ought not to raise such an issue by a distinct proposition, and not by words which he was unable or unwilling to explain. The Committee ought to know what they were about to do in voting for such an Amendment.
§ MR. BUTT
said, he knew that the right hon. Gentleman was incapable of unfairness, but it would have been better, he thought, if the Home Secretary had addressed his observations to the House before he had consented to kill his own bantling. If this issue had been raised—that there were either to be no local Courts or that the County Courts should exercise jurisdiction, he would have divided in favour of the latter. Was there anything shabby in a clause giving jurisdiction to a local Court? He trusted, therefore, that the Committee would not be misled by the remarks of the right hon. Baronet. The Committee by affirming the Amendment now before them would only declare that they would not give exclusive jurisdiction to the central Court, and that they reserved the question 1254 of the local Courts for future consideration. He was ready to bring up a clause to carry out the wishes of the Committee if the Attorney General declined to do so. Perhaps it might be found that a part of this jurisdiction might be given to the Courts of Assize—or to the Courts of Quarter Session; or he could conceive a clause giving jurisdiction to the County Courts. All this might be a matter for future consideration. The opinion of the Committee had not yet been taken upon this subject, and, although he should deeply feel any censure from the right hon. Gentleman, he should divide in favour of the Amendment, and should feel that he went into the lobby upon no 'shabby' division.
§ SIR GEORGE GREY
must do his hon. and learned Friend the justice to say that he had taken a straightforward course. He said he was ready to frame clauses giving this jurisdiction partly to Courts of Assize and Quarter Sessions. Well, let the Committee have these clauses before them before they adopted this Amendment. When the Committee heard a description of the Courts which the hon. and learned Gentleman proposed to create they could afterwards enlarge the present clause. But he objected to agree to words of this kind which threw upon the Government a responsibility that they were not willing to accept.
§ SIR JOHN PAKINGTON
said, he could not but regret the unnecessary warmth with which the right hon. Gentleman had spoken of the course taken by his noble Friend. He had not expected that the right hon. Gentleman would have used so harsh and unjustifiable an epithet as the word 'shabby.'
§ SIR GEORGE GREY
The right hon. Gentleman will permit me to interrupt him a moment to say that if I used the word 'shabby' in the heat of debate I am sorry for it, and beg to retract it.
§ SIR JOHN PAKINGTON
He would say no more upon this subject except that he was glad the right hon. Gentleman had recalled the word. The Committee had, he thought, wisely decided against delegating the jurisdiction in question to the County Courts. The right hon. Gentleman suggested that the Committee were now asked to pass a vote in the dark in giving local jurisdiction under the Bill to some Court not now in existence. In principle he concurred with his noble Friend; but if the Committee would not 1255 trust the County Courts there were no Courts now in existence that could exercise this local jurisdiction. He was not insensible to this difficulty, and unless his noble Friend could remove it he could not vote for his Amendment.
§ SIR WILLIAM HEATHCOTE
said, he was of opinion that the Committee were not invited to take a step in the dark in the present case more than in any other in which they were asked to affirm a principle without working out all the details. What his noble Friend desired was to affirm that local Courts should discharge certain functions which under the Bill were intrusted exclusively to a central, distant, and expensive Court. The Committee had been told by the right hon. Member for Droitwich (Sir J. Pakington) that there was no local Court except that which they had already condemned, which could meet these requirements. Surely the right hon. Gentleman had assumed that for the purposes of this Act no Court could be local, except one always tied to the spot. The fact was, however, that any Court or Circuit might exercise a portion of the jurisdiction created by the Bill, and whether it ought to be a Court of Assize or a Court of Circuit, consisting of more than one Judge emanating from the central tribunal in London, it did not appear to him to be necessary to decide at the present moment, but either of them could hereafter be adopted in conformity with the suggestion of the noble Lord the Member for Leicestershire.
§ MR. HENLEY
said, the right hon. Gentleman the Home Secretary had complained that the noble Lord had proposed his Amendment without defining exactly what it meant. He thought the Government might recollect that those who supported the Amendment had complained from the very first that a large class of business was going to be swept away and no remedy at all provided. Surely it was not unfair that they should ask the Government to put something in the place of that which they proposed to take away. The Government proposed to build one great palace in the room of many small houses. The supporters of the Amendment said that one great palace would not suit the people throughout the country, and therefore they asked the Government, in whatever way they pleased, whether by moveable tents or otherwise, to give the people some opportunity of getting at those remedies which they now possessed.
THE ATTORNEY GENERAL
said, the 1256 proposition before the Committee was that they should adopt an Amendment running thus—that any husband or wife might present a petition to the said Court or to a blank Court—he knew not what—to be hereafter determined. He never heard of such a proposition before. A more infelicitous proof of the ability of the noble Lord in leadership he could not conceive. What might be thought of it by the Committee he did not know; but he hoped the stratagem of the noble Lord would not be successful. The proposal relative to the County Courts raised the broad question whether any local tribunal at present existing in the country should be intrusted with a portion of the jurisdiction created by the Bill; he had shown the greatest readiness to meet that proposal fairly and openly, but just when the Committee were on the point of deciding that great question, the hon. and learned Member for Youghal (Mr. Butt) was induced to strangle his own child, in order to make way for the miserable bantling of the noble Lord. He was surprised that the noble Lord should have led the Committee into such difficulty, and wasted so much precious time for the purpose of bringing forward a meaningless and unsubstantial proposition, which called upon the Committee to decide they knew not what. It was a species of negative proposition which settled nothing, and therefore he hoped the Committee would reject it, and pass at once to business.
§ MR. DISRAELI
observed that the difficulty into which his noble Friend, according to the description of the hon. and learned Attorney General, had drawn the Committee, would be rectified by a division which gave him a majority. If a majority assented to the Amendment the difficulty would vanish, and he should not be surprised if the requisite local Court were constructed by the exuberant ingenuity of the hon. and learned Attorney General himself. He hoped that no sophistry would blind the Committee to the issue really before them—namely, whether there should be a local jurisdiction or not. It was not necessary that that jurisdiction should be always on the spot, supported and sustained by that limited provincial experience of which the hon. and learned Attorney General seemed so much afraid. The Committee had an opportunity now to assert a principle which he believed to be sound, just and politic, and to which the people of this country were devoted. He was glad that the question had been clear- 1257 ed from the Amendment of the hon. and learned Member for Youghal, which was framed in such a manner that it placed a great principle in a very odious light. They had now that principle fairly before them, and if they decided in its favour, as he hoped they would, he felt persuaded that, instead of placing themselves in an awkward and inconvenient position, they would do an act fruitful of beneficial results.
§ SIR GEORGE GREY
remarked, that if the Committee adopted the Amendment of the noble Lord, declaring that petitions might be presented to a Court "herein after established," and if no such Court should be established in the future stage of the Bill, those words would be entirely inoperative.
§ LORD JOHN RUSSELL
said, that whatever difficulty he might feel in voting for the Amendment, he would have far more in voting for the clause as it stood. When the hon. and learned Member for Youghal proposed by his Motion to give the local jurisdiction to the County Courts the hon. and learned Attorney General partially assented to the proposal, and it was not till some time afterwards that he made the objections he now raised. The clause asked the Committee to assent to judicial separations taking place only upon petition to the Central Court, and by affirming it they would destroy all those local tribunals which at present granted relief. No harm, on the other hand, could be done by agreeing to the Amendment. What local Court should exercise the jurisdiction would be a question for consideration, am if no proper local tribunal could be found it would be quite competent to the Committee to strike out the words now proposed to be inserted. He thought they ought to make some attempt not to destroy all the existing local Courts without providing some equivalent. Whatever benefits might arise from other parts of the Bill the destruction of the local tribunals would be a great injury to the people, and he, for one, could never give his assent to such a proposition.
§ Question put, "That those words be there inserted."
§ The Committee divided:—Ayes 98; Noes 87: Majority 11.
§ Clause 20 (Decrees of Separation obtained during the absence of the Wife or Husband may be reversed).
asked whether any means 1258 were provided for putting an end to the state of judicial separation?
THE ATTORNEY GENERAL
said, that every judicial separation might be terminated at once by the agreement of the parties, in the same manner that divorces a mensa et thoro might at present be put an end to.
§ Clause agreed to.
§ Clause 21 (Court may direct payment of Alimony to Wife or Trustee).
§ MR. DRUMMOND
said, he rose to move to leave out the first line and a half, and to insert words in the clause so as to make it run, "When the Court shall have decreed a judicial separation, it shall also make a decree or order of alimony, and it shall also." He was unwilling to leave a matter of this kind to the option of the Court.
Amendment proposed, "To leave out from the word 'which' to the word 'direct,' in order to insert the words 'the Court shall have decreed a judicial separation, it shall also make a decree or order for alimony, and it shall also.''
§ Question proposed, That the words "the said Court shall make any decree" stand part of the clause.
§ MR. GLADSTONE
expressed a wish to know whether the words "the said court" contained iu the clause were sufficiently explicit after the decision which had been arrived at with respect to Clause 19.
THE ATTORNEY GENERAL
said, that whatever might be the nature of the tribunal which the Committee might ultimately determine to establish he should take care that the wording of the various clauses of the Bill should be in accordance with their decision. With respect to the Amendment proposed by the hon. Member for Surrey, he would observe that there might be cases of judicial separation where there would be no right to alimony. The separation might be at the suit of the husband against the wife, or a wife who complained might have an ample separate property, in neither of which cases ought alimony to be given. The Amendment, if adopted, would make it incumbent upon, the Court which pronounced a sentence of judicial separation to give alimony even in those cases. He conceived that the clause as it stood was sufficient, because it gave power to the Court in cases where the wife was the injured party and she had no separate fortune to grant her alimony.
LORD JOHN MANNERS
said, he hoped, before the evening closed, they 1259 would hear some statement from the Government as to the effect of the decision at which the Committee had just arrived. Without waiting for that statement, however, he thought it desirable that the language of all the clauses should be made to harmonize, and he would therefore point out that while in Clause 20 the words "the Court" were used, in Clause 21 the words "the said Court" were introduced. He would suggest the omission of the word "said" in the latter clause.
THE ATTORNEY GENERAL
said, he would assent to the Amendment, and that the word "said" should be struck out.
§ MR. DRUMMOND
remarked, that he had seen so many cases of cruelty upon women who were left to starve by the husband who had injured them that he thought some protection ought to be afforded to them. He did not feel inclined to give up the words. The difficulty suggested by the hon. and learned Gentleman might be met by empowering the Court to give as little as sixpence.
§ MR. HENLEY
said, he thought the clause as it stood would leave the power of the Court to grant alimony as at present, while it would also give power to pay the alimony to a trustee. The Amendment of the hon. Member for Surrey would seem to indicate that the Court ought not to grant alimony except in cases where a sentence had been pronounced. In many cases at present suits were instituted solely with the object of getting the Court to settle alimony, and when that had been done no further steps were taken.
§ Amendments made.
§ Clause, as amended, agreed to; as also were Clauses 22 and 23.
§ Clause 24 (When Separation ceased the fact may be registered).
§ MR. DRUMMOND
said, the object of the Bill was, they were told, to create a tribunal that should be accessible to all classes. With that object in view he proposed to add at the end of the clause, the following words:—And in cases where the parties do not reside in London, the said declaration may be lodged in the office of the County Court, the clerk of which shall cause all such declarations to be forthwith entered in a book to be kept by him for that purpose, and copies of the same shall be annually forwarded to the Registrar of the Court of Marriage and Divorce in London.
§ MR. GLADSTONE
said, the clause 1260 only provided that parties who had been judicially separated, but who had come together again, might cause a declaration to that effect to be filed. Would it not be better to make it imperative upon them to record in some formal manner the fact of their re-entering into the full married state? He could conceive it possible that if the matter were left optional, the parties, though reconciled, might find it convenient to preserve the state of judicial separation as a bar to the rights of creditors.
§ MR. ADAMS
observed, that the clause would only apply to the Court which was specially intended to have cognizance of these matters. If, however, the jurisdiction was to be given to the assizes or to local Courts having no registrar, the words of the clause must be altered to meet that case. He wished to know whether the Attorney General intended to act upon the recent decision of the Committee and himself to prepare clauses to give effect to that decision?
THE ATTORNEY GENERAL
said, he thought that common courtesy demanded that he should wait to see what the noble Lord would propose. The noble Lord (Lord J. Manners) was at present in a state of gestation. When he had received the obstetric aid of the hon. and learned Member for Youghal (Mr. Butt), and had produced his clause, he, (the Attorney General), would undertake to give the offspring his most serious cogitation, and then his labours would entirely cease. When that coming event should take place they would be able to decide upon it, but at present he was unconscious of even what would be the sex of the noble Lord's offspring. He could not tell whether the Court to be created or appointed would have a registrar or not, nor what officers it would have, and therefore he was completely in the dark as to what would be necessary. He would, however, take no unfair advantage; and, if it should hereafter be the pleasure of the Committee to refer the business to any other Court, he would, if the Committee pleased, take an opportunity of introducing words, of altering or regulating the language of the clauses in every respect to adapt it to the conclusion at which the Committee had arrived.
§ MR. GLADSTONE
said, he could not but express his disappointment at the tone which had been adopted by the hon. and learned Attorney General, in the first part of his speech, with regard to the decision at which the Committee had arrived. He 1261 had understood his hon. and learned Friend to say that he would take the division and be bound by the result, and there was every reason why it should be so. The supporters of the Bill had asserted all along that the Bill was not a measure to introduce a new law, but that it was only to establish a new form of procedure, and was it possible that the Attorney General, speaking as the organ of the Government, could say that he was not prepared to suggest any means of carrying out the decision of the Committee upon a question of procedure? The hon. and learned Gentleman must remember that the professed object of the Bill had been stated to be to extend the facility of obtaining justice, the poorer classes of the population, and, notwithstanding that statement, he proposed to destroy the facilities which those classes now enjoyed without substituting anything in lieu of them. The Committee must have observed how the hon. and learned Gentleman had dealt with the decisions at which they had arrived with regard to the power of local Courts. On one occasion he had on the subject of County Courts invited hon. Gentlemen opposite to suggest some scheme by which evidence could be received in a County Court and transmitted to the actual Court for decision; and again, on that very evening, the hon. Gentlemen who had supported the Vote at which the Committee had arrived, were called upon to suggest some mode of carrying it into effect. What, then, was the position of the Committee? They had the Government before them entirely declining to make any suggestion whatever as to the mode of providing a substitute for the local Courts which at present existed. For his own part, he thought that the Committee had a fair claim upon the Government that they should suggest some scheme for carrying into effect the decision at which they had arrived. If any hon. Gentleman had proposed to introduce a new principle into the Bill, no doubt then the Government might say with some reason that the proposer of that new principle ought to devise some machinery to carry it into operation; but no new principle had been proposed. Certain local Courts at present existed; the Committee were of opinion that there ought to be local Courts; and the Government were bound to suggest the form of local Court which should be substituted for those which at present existed, and which they proposed now to abolish. On other occasions when the sense of the 1262 House had been manifested the hon. and learned Attorney General had prepared clauses to carry out the views of the House, and he had done so most fairly and frankly, and, as the hon. and learned Gentleman encouraged such metaphors, he would say, with that fecundity of invention which he so eminently possessed. He hoped, therefore, that the hon. and learned Gentleman would apply his great ability in devising some plan for carrying out the opinion which had been expressed by the Committee.
LORD JOHN MANNERS
said, he wished to remind the hon. and learned Gentleman that so strongly had he expressed his objection to one Amendment on the Probate Bill which had been agreed to by the Committee, that he had stated; that it would necessitate the withdrawal of the Bill. When, however, he had seen the feeling of the House upon the subject, the hon. and learned Gentleman had most frankly and fairly come forward and suggested a mode of carrying into effect the decision at which the House had arrived. Upon the present occasion, however, the hon. and learned Gentleman did not show any inclination to attempt to carry out the expressed opinion of the House; but he would venture to hope that the hon. and learned Gentleman would see the advisability, if not the necessity, of acceding to the expressed wish of the Committee, and of bringing in a clause to carry that wish into effect.
§ SIR ERSKINE PERRY
said, he wished to point out to the hon. and learned Gentleman that the Vote which the Committee had arrived at had been supported by as many hon. Gentlemen on his own as on the opposite side of the House, and he hoped that he would devise some scheme for carrying it into effect. It appeared to him that the only Courts open to the poorer classes were the County Courts, and unless some better suggestion were made, jurisdiction in cases of judicial separation, would have to be conferred upon those Courts.
§ MR. HENLEY
said, he thought that other means than the County Courts might be suggested for carrying into effect the decision of the Committee, but what he rose for was to ask the Attorney General what would be the status of persons who, having obtained a judicial separation, again cohabited together? Were they to remain with all the conveniences of man and wife in one sense, and without the inconvenience in another? Was their property to be separated whilst their persons were united?
THE ATTORNEY GENERAL
said, that the clause formed no part of the Bill originally introduced by the Government, but had been added to it by a noble Lord (Lord St. Leonards) in another place. As he understood the clause, the effect of it would be that where a judicial separation had been pronounced, and the parties came together again and cohabited the property of the wife would be subject to the debts which she had incurred when living as a feme sole; but the words of the clause were not very clear.
§ SIR FITZROY KELLY
said, the 19th clause, taken in connection with the 24th, would introduce a state of the law entirely new to this country, and it was for the House to consider well all the possible cases that might arise under those sections. It was an important question, for example, to consider in what case the property would be exclusively that of the husband, and in what other cases it would be liable under the 24th section to be seized by the creditors of the wife. It could easily be foreseen that conflicts would arise between the creditors of the husband and the wife respectively, and this was therefore one of the points which it became them well to consider. Perhaps his hon. and learned Friend the Attorney General would also endeavour to devise some scheme by which, on the reunion of married parties after separation, an arrangement could be effected for putting the wife's property in possession of the husband, or giving them jointly and severally an interest in that property. With regard to the Resolution which had been come to by the Committee, he held that it was incumbent on Her Majesty's Government to give full effect to that Resolution. He had the utmost confidence in his noble Friend behind him (Lord J. Manners), but it was not competent to the Government, in regard to a Bill brought in by themselves, and which he held to be of greater importance with reference to the administration of the law than any Bill that had ever been introduced to Parliament in his time—introducing as it did changes in the law unexampled and unprecedented—to devolve upon others the carrying out of a Resolution to give local Courts a local administration under that Bill in the matter of judicial separation. It would be impossible to do justice to such a Resolution unless the Government, who were the authors of the Bill, themselves framed clauses to give effect to it, and framed 1264 them in harmony with the general structure of the measure. That he held to be the sole and exclusive duty of the Government. According to the terms of the Resolution come to by the Committee they were bound, somehow or other, to devise a scheme by which the provisions of this Bill could be administered in the various parts of the country. What Courts were to administer the law became a serious question. On that point it was not for him to enter; but, undoubtedly means should be found by which on simple summons a case might he heard in the country at the cost of only a few shillings to the parties. Perhaps the Court in London might have the power at once to remit what was deemed an important case to the Assizes, in smaller matters to the Quarter Sessions, and in smaller matters still to the Petty Sessions; at all events, some cheap and expeditious mode of having justice administered in the country ought to be adopted. He would say nothing further on the nature of these Courts, but he certainly thought the majority of the House would never consent to give the County Court the power of pronouncing a sentence of judicial separation.
THE ATTORNEY GENERAL
said, that a burden was once thrown by the Egyptians upon the Israelites of making bricks without straw. But that really was light in comparison to that which hon. Members wished him now to do; for having taken away the only local jurisdiction in the country, they asked him to find a local jurisdiction. He was, however, ready to say with the utmost frankness that he would accept the decision of the Committee not only with acquiescence, but with the desire fully and freely to co-operate with the promoters of that decision in carrying it out. If the hon. and learned Member for Youghal (Mr. Butt) would say that he would prepare a clause giving effect to the Resolution which the Committee had adopted, and would communicate with him, he would be most happy to co-operate and to concur with him in any proposition that would carry out that object.
§ MR. STAFFORD
said, he did not think that what had fallen from the Attorney General ought to satisfy the Committee. He did not agree with the hon. and learned Gentleman that because the Amendment of his noble Friend had been carried against the Government all he (the Attorney General) had to do was to revise and consider a clause for giving effect to 1265 that Amendment, which another hon. and learned Member might promise to draw up. The doctrine laid down on this point by the hon. and learned Member for Suffolk (Sir F. Kelly) was strictly constitutional doctrine. There were only two courses for the Government to take if they wished to act according to the established practice of the House, and the Committee ought not to be satisfied unless they took either the one or the other. They should either withdraw the Bill, or consent to carry out the wishes of the Committed. The hon. and learned Attorney General could not escape from the difficulty in which the Government found itself by the proposition he had just made, and the Committee would act unwisely if it was content to listen to the midwife metaphors of the hon. and learned Attorney General rather than insist on his promising to carry out the principle embodied in the resolution of his noble Friend—a principle which he repeated he was bound to give effect to unless he had come to a determination not to go on with the Bill. He approved the speech which the hon. and learned Gentleman made after the decision of the Committee, but he was surprised that he did not conclude by moving, what would have been an appropriate sequel to that speech, that the Chairman should report progress. The hon. and learned Gentleman and the Home Secretary objected to the Resolution, because they said it was a leap in the dark, and that it would raise difficulties to meet them at every turn; and yet, instead of taking the course which in such a case he thought they ought to have taken, namely, to report progress, the hon. and learned Gentleman made the unprecedented proposition that the duty of carrying that Resolution into effect devolved not upon him, but upon those who had promoted it.
§ MR. CLAY
remarked that hon. Gentlemen who were opposed to this Bill seemed not only desirous of having their own way, but of having that way in their own manner, He considered that the course proposed by the Attorney General was a very fair and convenient one; and he thought, therefore, that, instead of wasting time in a discussion of this nature, it would be better to wait and see the result of the conference between the Attorney General, and the hon. and learned Member for Youghal (Mr. Butt.)
§ MR. MALINS
said, that the 22nd section provided that the property acquired by 1266 the woman during the separation should be held to her separate use when cohabitation again took place. This made it material to know whether the judicial separation was to be taken to be at an end when the parties again began to cohabit, or from the date of the registration spoken of in this clause? There might be a considerable interval between the two, and in that interval property might accrue to the wife.
THE ATTORNEY GENERAL
said, he thought the clause was at variance with the 22nd clause, and he should therefore propose to negative it.
§ MR. GLADSTONE
said, he wished to know whether in that case any other clause would be brought up in its place, to facilitate the return of parties to a regular state of marriage?
§ MR. MALINS
said, that if this clause were negatived the present practice with regard to the reconciliation of parties would be retained. The moment that they were reconciled the state of separation and all the provisions respecting it would cease.
§ MR. AYRTON
said, he apprehended that the omission of this 24th clause would not free this question from difficulty. In fact he believed that the Bill would lead to endless perplexity unless the 22nd clause as well as the 24th were got rid of. This judicial separation was a new law, altogether distinct from the old divorce a mensâ et thoro.
§ MR. GLADSTONE
remarked, that before coming to the next clause, which related to an entirely different subject, he wished to have it clearly understood who was to undertake to draw up the clauses embodying the decision to which the Committee had just come in respect to local tribunals. At present the point was rather obscure. It had been assumed that the hon. and learned Gentleman the Member for Youghal (Mr. Butt) had promised to prepare a series of clauses; but what he himself had understood the hon. and learned Gentleman to say was, that if the Government failed to prepare clauses he would then attempt the task. The hon. and learned Attorney General, however, seemed to have understood the hon. and learned Gentleman as volunteering without any conditions. He was afraid that between the two there would be no clauses at all, and that the decision of the Committee would remain entirely without effect.
§ MR. BUTT
said, that the right hon. Gentleman had correctly represented his view of the understanding. What he had 1267 said was that, if no one else did it, he himself would undertake to prepare clauses. His only object was to carry out the great principle of local tribunals in opposition to centralization, to which the Committee had agreed, and he was willing to cooperate with the hon. and learned Attorney General in any way which he might think best. If the Attorney General would prepare clauses himself he would cheerfully give him any aid in his power, or if the hon. and learned Gentleman preferred that he (Mr. Butt) should draw them up and submit them afterwards to him, he was perfectly ready to take that course.
§ MR. SOTHERON ESTCOURT
said, he begged to ask whether either of the hon. and learned Gentlemen had in his eye any existing Courts to which he proposed to commit the local jurisdiction respecting judicial separation?
§ MR. BUTT
said, that he did not understand that the Committee had negatived the propriety of giving jurisdiction in these cases to the County Courts; and, as then advised, those were the Courts which he should propose by his clauses. If, however, he found upon consideration and consultation with the hon. and learned Attorney General, that the objections to those Courts were insurmountable, there would still remain the Courts of Assize and Quarter Sessions, either of which he should prefer, to abolishing the existing local jurisdiction without providing any substitute.
§ Clause negatived.
§ Clause 25 (On adultery of Wife or incest of Husband Petition for dissolution of Marriage may be presented).
§ MR. WARREN
moved that the Chairman should report progress. The House met at twelve o'clock, and they had already been discussing this Bill for five hours and a half.
§ SIR GEORGE GREY
hoped that the hon. and learned Gentleman would not persevere with this Motion. Although the House met at twelve o'clock it only sat for three-quarters of an hour.
§ Motion negatived.
§ MR. DRUMMOND
said, he rose to move an Amendment. In his opinion this was the most important clause of the Bill. He did not in the slightest degree retract his objections to the giving of any facilities for divorce a vinculo; but if, as he had no doubt they would, they overruled his opinions, he would then take them upon their own ground and endeavour to get equal justice for the woman. He 1268 should propose to omit all those qualifications of the adultery of the man by which the Bill prevented a woman having the same remedy as her husband. He objected to the word "incestuous" before adultery, and to the phrase "adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion." His object was to have perfect equality between the two sexes. The laws of England were more severe against the woman than were those of any other country in Europe. That House was a body of men legislating for women, and they had by a code of their own invention, and for their own purposes, contrived to establish the general notion that unchastity in a man was a much less evil than unchastity in a woman. He was ashamed to say that, within the last few days, he had seen letters from fathers to their sons, just grown up, telling them that there was no sin in unchastity in a man, only in a woman; and he had known instances of parents who had gone even further than this in the inculcation of the same principle. He believed that that was the practice of mankind at large, however they might deny it in theory. The hon. Member for Hertfordshire (Mr. Puller) said the other day that there ought to be a divorce a vinculo the moment there was adultery, because adultery was of itself a dissolution of marriage. If that were so, he would ask, how many men in that House were married? This was not a question of his raising, nor was it the first time it had been raised. A woman was brought before our Saviour, and it was said, "She was taken in adultery, in the very act, what shall be done with her?" The answer was, "The first of you that is without blame take up a stone and throw it at her;" and what happened? They went out one by one. He brought these questions before them to show how little prepared they were, without serious reflection upon the rights of women, to do justice to this question, and he thought that the least they could do was to put the two sexes on a par. Another question which would follow, was as to the care of children. The law, as laid down both by Equity and Common Law Judges was, that a man; however wicked, had a right to the custody of his children, and the Courts could not give them to an innocent woman. He could quote cases to show that such was the law. In the case of "Do Mandeville" the father took an 1269 infant from the mother's breast to compel her to make a disposition of her property. The mother appealed to the Court, and the Judge decided that he had no power. In the case of "McClellan"—[MR. MALINS:—What date?] He dared say the hon. and learned Gentleman could tell the date better than he could, but it was not long ago. In the case of "McClellan" a child was taken from the mother and given to a governess. In the case of "Ball," who was divorced for adultery, his daughter was given to him by the Court; he left her for some time with a common maid-of-all-work, and ultimately sent her secretly to school. In the case of "Greenhill" three little girls were taken from their mother, and placed, in effect, with the woman with whom their father cohabited. In all these cases redress was sought in the Courts by the injured wives, but they obtained none. In the last mentioned case the Judge in Chancery said he had no authority to interfere with the right of the father, and he could not even order that Mrs. Greenhill should see her children as a matter of right. That decision was afterwards confirmed by Mr. Justice Patteson, and his ruling was supported by the Queen's Bench. He now moved the omission of the word "incestuous," and also of the proviso at the end of the clause, his object being to put the man and the woman upon precisely the same footing.
§ Amendment proposed, to leave out the word "incestuous."
§ MR. PULLER
said, that as the hon. Member for West Surrey had alluded to him, he begged to repeat the opinion he had before expressed, that marriage, viewed as a Divine institution, or, as it was called by the Apostle, a great mystery, was, in the sight of God, broken by the act of adultery. As to the manner in which human laws should deal with the matter, that was a distinct question, involving many considerations into which he should not now enter. When, however, the hon. Member for West Surrey called his attention to the fact that the sin of adultery was more prevalent among men than women, he was not called upon to deny that fact, nor to deny that, whereas chastity was the point of honour in women, it was not the point of honour with men. But the inference he drew was diametrically contrary to that drawn by the hon. Member for West Surrey. The inference he drew was that in legislating on the subject of adultery they could not, viewing it 1270 as a social question, be guided by the same principles with respect to women as with respect to men. He agreed with the hon. Member for West Surrey in thinking that in the sight of God unchastity was as great a sin on the part of men as on the part of women; but viewing it as a social question, as regards injury to society, he must affirm adultery to be a far greater injury to society when committed by women than when committed by men, in consequence of being attended with uncertainty as to the parentage of the offspring. It was also to be considered, as had been pointed out in the Report of the Commissioners that in legislating on the subject of adultery, if the same facility for divorce was extended to the woman as was given to the man, a power would be given to a selfish husband, by committing adultery, to drive the wife into the Divorce Court.
§ MR. GLADSTONE
said, he rose to ask whether the discussion was to be ended in that manner, and whether no declaration was to be made of the views of the Government on this important question.
THE ATTORNEY GENERAL
replied that on introducing the measure he spoke on the principle as fully as possible, and stated that the law of the country on this point had been settled by the House of Lords, and that the Government adhered to the law as so settled.
§ MR. DRUMMOND
said, he believed that it was not the law of the country, but a Resolution of the House of Lords, and he did not know that that was the law of the country any more than a Resolution of the House of Commons.
LORD JOHN MANNERS
wished to know to what law the right hon. Member the Chancellor of the Duchy of Lancaster (Mr. Baines) referred, when he stated on a former occasion, that by the law of the land marriage was dissoluble.
§ MR. BAINES
said, he had stated that, according to Lord Campbell, marriage was dissoluble on account of adultery, and that it was a quibble of lawyers to maintain the contrary. He apprehended he could not have referred to higher authority.
§ MR. GLADSTONE
then rose, but before addressing the Committee complained that a hon. Member near him had protested against his proceeding to discuss the matter. He called upon the Chairman to decide whether he had not a right to proceed.
said, he had heard no interruption; but the right hon. Gentleman had a right to address the Committee, without being interrupted.
said, he had protested, not against the right hon. Gentleman addressing the Committee, but against the proceeding altogether, and he thought that the people of England would join him in that protest.
§ MR. GLADSTONE
I am sorry that I misunderstood the observations of the hon. Member, and that I have caused any trouble to the right hon. Gentleman in the Chair. The question under discussion is so grave that I thought it not unreasonable on the part of the hon. and learned Member opposite (Mr. Warren) to suggest at past eleven o'clock that the Chairman should report progress. I think that after many hours attention to details and verbal questions, and to an endeavour to extricate ourselves from the intricacies of the clauses of this Bill, which are admitted to be unintelligible or misdirected to their end, and the greater part of which have been abandoned or postponed, we approach at very great disadvantage the settlement of one of the most serious and greatest moral and social questions that can be submitted to discussion. The hon. and learned Attorney General has stated a ground which, if it could be substantiated, would make the case pretty simple. He says that the law is already settled on this subject, and he does no more than merely not propose to alter it. That proposition seems to me to be utterly and entirely groundless. How can can it be said that, with respect to the remedy accorded to the woman, the law is fixed by the House of Lords, or that the House of Lords has laid down a procedure on that point? How can it be said, with respect to a practice of which, I believe, there are only four instances altogether, and under which a great multitude of new cases might and probably would emerge from time to time, and which have never yet received their decision, that the House of Lords, which in respect to questions connected with women is in a position essentially tentative, and has not yet found any certain ground, has fixed a state of law binding on our judgment? I say, then, there is no fixed state of the law on the subject. But it has been suggested that there is an inconsistency in contending that the principle of divorce a vinculo is a dangerous principle to be incorporated 1272 into our law, and yet to argue that, if adopted, it should be extended further than proposed by the Bill. I grant the difficulty in which we are involved. I look on the importation of the principle of divorce a vinculo into our law as an evil. I do not deny that there are various considerations urging you in that direction, but the danger which attends the change appears to me infinitely to outweigh those considerations. But when you have determined by the Bill that you will introduce divorce a vinculo into the statute law, it then becomes our duty to consider in what shape the introduction of the principle will be the least dangerous. I am not content to find an answer to that question in your rules of arithmetic. It is not enough to say that the form of introducing the principle will necessarily be the least dangerous by which the number of cases tried will be the smallest, because along with the principle of divorce a vinculo you introduce by this Bill another principle of the utmost importance, and, in my opinion, of the utmost danger—the principle that the rights of men and women, in regard to the highest relations of the marriage contract, are not equal, but unequal. I confess that when driven to a choice between the mischief of adding somewhat to the number of cases of divorce a vinculo on the one hand, and the mischief, on the other hand, of writing on the statute book that principle of inequality I have just mentioned, I make my choice deliberately in favour of the principle of the Amendment which has been moved by the hon. Member for West Surrey. I believe that the evil of introducing this principle of inequality between men and women is far greater than the evil which would arise from additional cases of divore a vinculo; and I take my stand in the first place on this, that if it be assumed that the indissolubility of marriage has been the result of the operation of the Christian religion on earth, still more emphatically I believe it may be assumed that the principle of the equality of the sexes has been the consequence of that religion. You have in the very earliest times sonic traces of what approaches to it; but it is the special and peculiar doctrines of the Gospel respecting the personal relation in which every Christian, whether man or woman, is placed to the person of our Lord that form the firm, the broad, the indestructible basis of the equality of the sexes under the Christian law. And I 1273 am amazed at the facility with which this question is dealt with by those who think that the act of adultery of itself dissolves the marriage tie. What said the right hon. Member for Cambridge (Mr. Walpole) in making his solemn appeal to the Committee? "I cannot enslave those whom God has made free;" and having enunciated the principle, he applies it to that small fraction of adulteries which are committed by women. Having claimed the benefit, if benefit it be, of the principle on behalf of men, he then proceeds to emancipate himself from the law which he has himself declared. But if adultery really constitutes in the sight of God that right to release from the marriage tie, and absolutely abolishes the marriage tie, so that those of whom one party has committed adultery are no longer married—if that be so, where do you find your title to withhold from women the remedy which you give to men? Is it to be found in considerations of social expediency? I am ready to dispute and to deny those considerations; but, suppose that it be, what right have you to set them up in bar of the charter which you say is written by God himself?—because the hon. Member for Hertfordshire (Mr. Puller) says that the stamp of God is not upon marriages where one of the parties has committed adultery, and another says that by the very act of adultery the marriage tie is dissolved. But if the marriage tie be so dissolved, what right have you to compel a woman whose marriage tie has thus been broken to live unmarried, in the external relations of marriage, with a man to whom she is not really united? I confess that the assumption of such power appears to me on your own principle entirely unwarranted. But, Sir, I dispute the considerations of social expediency. It would have been more satisfactory if the nature of those considerations had been more fully stated, for we have not yet heard from the Government any clear enunciation of those views of social expediency which they think warrant them in interfering, after having, on the ground of the Divine law, claimed divorce for the husband, to stop it for the wife. I say that the social expediency should have been shown very fully, largely, and clearly to justify you in arresting your career after you have given divorce to the man; but I deny that the expediency has been shown either clearly, largely, or fully. It appears to me that the Bill proceeds on an estimate cither false or inadequate of the 1274 mode in which temptation operates on parties guilty of adultery according as they are men or women. I believe that a very limited portion of the offences committed by women are due to the mere influence of sensual passion. On the other side, I believe that a very large proportion of the offences committed by men are due to that influence. If you punished in men the act of sensual passion, you would make a law which in many instances would, I believe, be operative to prevent that act; but you decline to make such a law, and will not bring it into operation in precisely that class of cases where it might be remedial. You are going to enact that law, however, as against women. Now, is the case of women the same as that of men? So far as I am able to observe what passes in the world, or to learn what books teach us, it seems to me that in the vast majority of instances where the woman unhappily falls into sin, she does so from motives less impure and less ignoble than those which actuate the man. It is commonly because aversion has been contracted to the husband, or because attachment—and though a guilty, yet not a gross attachment—has been conceived for another object. That aversion is often grounded in the neglect or other cruelty of the husband, even where there is nothing worse; that attachment is grounded in the attentions of another admirer, and has no immediate or direct reference in its early passages to the commission of sin. You, therefore, punish in the woman that which she does not contemplate; and as it is not usually in her contemplation when she enters on the downward road, the punishment which you are about to inflict will have little of a deterring effect. But with the man, just the reverse is the case; for there is the direct action of sensual desires that causes him to offend, and there, where you might strike directly at the offence by giving the means of remedy to the wife, you refuse to do it. I must confess that it appears to me that a measure so framed is not so much designed in the spirit of preventing a particular sin as by way of the assertion—I must add, the ungenerous assertion—of the superiority of our position in creation. Of course I do not mean that that idea is present to the minds of those whom I address, or that they are capable of the wilful perpetration of an ungenerous act; but I do believe that it results from the exclusive possession of power and from the habits of mind 1275 connected therewith. On a former evening I ventured to throw out—of course by way of mere conjecture—some numerical statements with respect to the much greater frequency with which this offence was committed by men than by women; and after I had said that nineteen out of twenty were the offences of men, I think it was argued against me, "How inconsistent of you, who object to divorces a vinculo altogether, to propose to multiply the suits." I entirely disbelieve that there would be any such multiplication. I think that it would puzzle the wit of any man who sits in tins House to answer the protest of Lord Lyndhurst, with respect to the manner in which women are treated under this Bill; and I believe that Lord Lyndhurst speaks the dictates of experience as well as of humane and Christian principle when he says that in no case but the most extreme would you find the woman inflicting on her husband the penalty with which the law would arm her. But by arming her with the right of divorce, you would greatly increase her power over him, and you would deter him from the commission of offences which among husbands are infinitely more common than among wives. Now, I will put to the Committee a case which will exemplify the manner in which a Bill of this kind will operate. Take the case of a person who committed adultery with his neighbour's wife. The guilty woman is divorced by her husband, but the adulterer remains linked to his wife, who has no means of liberating herself from him. The direct operation, then, of our law in that case is, that you put a premium on his adding either desertion or cruelty to his adultery, in order that he may bring himself within the scope of the law, and thereby may become qualified for a union with the guilty object of his desires. And I beseech you to consider now, as you admit the principle of divorce for women, how arbitrary is that selection of causes on which you are about to give it. It is formed on a very narrow induction of instances that have been brought before the House of Lords. You are going to give the remedy of divorce to women in cases where the husband is guilty of adultery, provided that it be combined with cruelty such as would procure an ecclesiastical divorce in an Ecclesiastical Court. Now, what is the meaning of cruelty? I have made some inquiries on this matter, and I understand that there is no doubt, whatever, among the highest 1276 ecclesiastical authorities, in accordance with the dictum of Lord Stowell, that cruelty, for which divorce is to be given in those Courts, must import danger to life, limb, or health, or a reasonable apprehension of such danger. Is that the only kind of cruelty which prevails in civilized society? Is that the only kind of cruelty which finds its way into the hearts of educated and refined women? Is not the cruelty of insult just as gross, just as wicked, just as abominable as the cruelty of mere force? And is not that a very common class of case? Is it not too notorious that there exist a multitude of instances in which no remedy has been sought for, or none granted by our law—instances in which the adulteries of the husband have not only been occasional, but continuous; not only continuous, but open; not only open, but committed under his very roof, and in connection with persons placed in the closest relations with the wife? And is not the insult inflicted in these cases one which sends the iron into the soul as deeply, and far more sharply, than any material instrument can send it into the body? On what principle, then, is it that you give a remedy to the wife in a case of bodily cruelty on the part of the husband, while, where the cruelty is directed to the soul, though this may inflict tenfold greater torture, you declare there shall be no remedy at all? I say, that your enumeration of cases, so far from constituting a law, merely supplies a list of the three or four most aggravating forms of the evil which happen to have been brought before the House of Lords, and omits, altogether, others still more notorious and more aggravating. The Committee should recollect, also, that we must endeavour to emancipate ourselves, on this occasion, from what I will call the fallacy of my hon. and learned Friend when he contends that we arc not going to make a new law. Now, don't let us go into verbal disputes on this point. Don't let us hear quoted the dictum of Lord Campbell, contradicted by himself. What is the use of citing Lord Campbell's declaration, that divorce is known to the law of England, when you have the same Lord Campbell saying, at another time, that our law does not recognize divorce? There is no advantage in all this. Freed from technicalities, the state of the case is surely this. You have hitherto had a "law" of divorce. The expression is a most inaccurate one, but we will call it a practice or law of divorce, if you like, 1277 applying to a certain narrow and limited class of society. You are now going to lay down the principle that divorce shall be made applicable to all classes of society. Well, that at once brings into play a multitude of new influences, and gives rise to a multitude of new considerations. We know that the power arising from usage, tradition, and social position differs immensely, according to the class of persons you have in view. Thus you can inflict punishment, through the medium of public opinion, on the higher classes, which you cannot inflict on the lower classes; and when you are proceeding to pass a law of this kind, affecting, for the first time, the lower classes of society, you must prepare for a great variety of results which have not entered into your view under a system confined in its operation to those of higher social standing. I cannot help reading here part of a letter addressed to me by a person wholly unknown to me, who describes herself as a deserted wife. Speaking of this Bill, she says,It is a most unjust and cruel measure, and will, if passed, destroy the sanctity of marriage, and legalize adultery on the part of the husband, by affording no relief whatever to the injured wife, while it visits her derelictions from duty with the greatest severity. Is this fair or just? I am aware thru such has been the law of the land for many years past; but, as only few have been able to avail themselves of it, its demoralizing influence has not been so great as it will be now, when it shall be known through the length and breadth of the land, that man may commit adultery with impunity, and destroy the happiness and break the heart of the woman he has sworn to protect and cherish. I speak from sad experience, Sir, for my heart has been wrung, and my life embittered hopelessly and for ever by the cruel infidelity of a husband who openly boasted that the laws of England did not recognize adultery on the part of the husband as a sufficient ground for divorce, and that, consequently, it was no sin. I do not hesitate to affirm that, if this Bill pass, the sanctity and the purity of the marriage tie will be destroyed for ever, and that weak-minded and weak-principled men will quiet their consciences with the tacit permission granted them by Act of Parliament to indulge in a life of profligacy, while the oppressed and helpless wife will, in many cases, be driven to a life of sin, hoping by its excitement to stifle the anguish of a breaking heart.I do believe this letter contains, upon the whole, a much truer estimate of life and human action than has been taken by the framers of this Bill. Sir, in balancing the difficulties which present themselves—the difficulty of making some addition to the cases of divorce, on the one hand, and, on the other hand, of admitting that most dangerous principle, the inequality of the 1278 sexes in the highest relation of life—I do earnestly hope that the Committee may be disposed to make that choice, which I shall certainly make for myself, by supporting the Amendment of my hon. Friend the Member for West Surrey.
§ MR. WIGRAM
said, he thought the clause now under discussion fraught with such extreme danger to the morals of society, that he would do nothing to extend its operation, and would not, therefore, support the Amendment. Parliament was now, for the first time, about to confer upon the lower ranks of society the power of divorce, which, hitherto, had been partially exercised by the upper classes only. Now, he believed, that among a large portion of the humbler classes there was quite as much morality as was to be met with in higher circles; but amongst another large section of the lower classes were to be found none of those safeguards of respectability, of morality, and self-restraint, which public opinion kept up in other quarters; and his fear was, that when the clause came into practical operation among this class of persons, there would he introduced in the large towns a laxity of feeling on the subject of marriage, which would be productive of the worst consequences to society at large. Believing that this would be the general effect of the clause, he was persuaded that, by extending its operation in the manner proposed, this danger would be aggravated tenfold. The great evil to be apprehended from the introduction of this new law was, not that more divorces would be sought for from what might be termed accidental adultery, but it was, that married persons, wearied of each other, would commit adultery for the very purpose of obtaining divorce. In the pamphlet translated by the hon. Member (Mr. Drummond) it was stated that, although the Prussian law allowed divorce for almost any cause, yet it was found that divorce was sought, all but universally, on the ground of adultery, proving, completely, that the crime was committed for the mere purpose of dissolving the marriage. If this feeling became rife in England, it would be useless to say that divorce a vinculo was granted upon only one ground, because you would have adultery committed, perhaps through the connivance of the parties, just in order that they might avail themselves of the law. He viewed, therefore, the introduction of the principle contained in the clause as a most dangerous innovation upon the law of this country, 1279 and he could not be induced to vote for any extension of its operation. He quite sympathized with the observations of the right hon. Gentleman as to the equality of the sexes, and if he thought that this law had conferred any privilege upon the man, he should not hesitate to confer it also upon the woman. He believed, however, it was not for the happiness of the man that divorce should be made more easy. He thought they would be pressing a mere theory too far, and at the sacrifice of considerations of a most important character, if they gave to the wife the same facilities of obtaining divorce a vinculo as the Bill gave to the husband.
said, he regarded this clause as one of the most difficult in the whole Bill. The question raised by it was one on which great moralists and jurists were entirely at variance with each other. But the Committee could not lose sight of this—that by the law of Scotland and also that of Holland both parties were on an equal footing with regard to divorce. His mind had fluctuated very much upon the question, but he could not arrive at any satisfactory conclusion which would deny the wife the remedy which the Bill would give to the husband. It was said that there might be cases of collusive adultery, that was to say cases in which the husband would conspire with another man to get rid of his wife, But divorce was not a matter of right. It was a civil remedy. The wife might or might not seek a remedy. Lord Stowell, one of the most enlightened and experienced Judges that this country had produced, said that even in cases where the husband prosecuted his right to a qualified divorce, in 99 out of 100 of these cases the adultery of the wife was caused by the criminal neglect of the husband. It was not likely that the wife would apply for a remedy in case of the adultery of her husband, unless that adultery were accompanied by circumstances that made it imperative for the sake of her own peace and that of her family to obtain a dissolution of marriage. With respect to the number of cases likely to arise he might mention that by a return made to the Government of France the number of cases that occurred in that country in one year was 1,681, of which upwards of 1,400 were for ill treatment, 116 for the adultery of the wife, and 109 for the adultery of the husband, being nearly equal in the case of the husband and the wife. He believed that the re- 1280 turns for Scotland would show that the cases there were about on a par. The proper remedy for collusive adultery would be to make adultery a criminal offence, If they were to take away altogether the civil remedy—the action for criminal conversation—set up a tribunal to which only a limited part of the community could apply, and subject the adulterer merely to a fine, and permitted him to marry the woman with whom he committed adultery, they would make adultery a very "respectable" offence. In the course of a debate in 1830, Dr. Lushington, who had had great experience in cases of this nature, said, after adverting to the system of granting divorce by private Acts of Parliament to the rich, while no remedy was given to the poor—This certainly was a striking and, perhaps, a still greater objection than that which he had mentioned—that while the injured husband was allowed to resort to Parliament for relief the same facilities were refused to the offended and deeply injured wife, unless in those horrible cases in which incestuous connection was proved to have taken place. Ever since he had an opportunity of considering this question this anomaly had struck him, and he never could reconcile with the principles of justice that principle by which the Legislature refused that relief to the wife which was granted to the husband. If there ought to be any distinctions or greater favour shown to one party rather than to another the favoured one ought to be the wife—the weaker party.He (Mr. Napier) did not say that adultery ipso facto dissolved marriage, but he maintained that the innocent party ought to have the power of dissolving it.
argued, that the distinction drawn by this clause was consistent with the intuitive feeling of mankind. In all ages it had been felt that the adultery of the wife brought ruin on the married state, but not so the simple unfaithfulness of the husband. This was evident from the general prevalence of polygamy except where Christianity had introduced a purer standard. But polygamy, though permitted to the male sex, both in the animal world and in human societies, had never been conceded to the female. From this and other circumstances, it appeared that nature drew a distinction in this matter between the husband and the wife, and he deemed it the first and most fundamental principle of statesmanship to adapt human laws so as to chime in with the dictates of intuitive common sense. Of course, he detested this crime in either sex, and considered it a foul transgression against the laws of God, but he did not 1281 think that either the instincts of mankind, or the arrangements of nature, would justify us in placing them on the same level.
§ SIR WILLIAM HEATHCOTE
said, the speech of the hon. Gentleman who had just sat down appeared to have raised considerations and to have suggested reasons, in his view far too grave to be disposed of without some observations upon them, and he hoped the hon. Gentleman would bear with him for a few moments. The hon. Gentleman had stated principles on which he thought, and, as he (Sir W. Heathcote) understood, mainly thought that the distinction between the two sexes was to be maintained in this enactment. He had stated the only principle on which it could be maintained, and that principle was one which ought to startle that assembly, when they recollected that it was the principle of polygamy. The hon. Gentleman said—at least so he understood him—that it was to be inferred from the instincts of mankind in former days towards polygamy that there was a distinction between the relations of the sexes which ought to govern the Committee in dealing with the proposed enactment, and that it followed from the institution of polygamy which prevailed in many parts of the world, and even among the Jews, that the sexes did stand, with respect to that relation, on a different footing from each other. Was it not a fact that by the operation of Christianity the civilized world had come to regard polygamy in its true light; and was it not to be inferred that by the very same process by which mankind had come to abhor that system they would be taught to look with suspicion and distrust on an enactment which could only be justified with reference to it? Christianity had extirpated the public recognition of polygamy, but it had not extirpated many of the shades of it, which still remained as the relics of a barbaric age. They ought, therefore, to be on their guard when they came to deal with an enactment based on such principles as that before the Committee. It was incumbent on them to take that first opportunity of entering a protest against what was in itself an injustice and based on principles that would not bear the light of day. He hoped, therefore, the Committee would entirely repudiate the clause as it stood, and vote for the Amendment of his hon. Friend the Member for West Surrey.
§ MR. DRUMMOND
said, he would beg to remind the Committee that they were 1282 about to vote on the omission or retention of the single word "incestuous," as applied to the adultery of the husband.
§ MR. WALPOLE
said, it was quite true that such was the question, but the point that had been raised, and most properly raised, was whether the rule or practice which now prevailed of making a distinction between the sexes, with reference to divorce a vinculo, but not to judicial separation, was proper or otherwise. He entirely concurred with his hon. Friend (Sir W. Heathcote) that the distinction could not be justified on the ground that the man was to be allowed to live in a state analogous to polygamy. He also concurred with his right hon. Friend the Member for the University of Oxford (Mr. Gladstone), that the sin or crime of adultery, on whichever side it might be committed, was precisely the same in the sight of God, and that the woman, as well as the man, had a perfect right to have it so considered on all religious grounds. But the only question was whether on social grounds and civil considerations it was expedient or inexpedient to make the distinction between the two which was recognized in the clause as it stood? They had it on the authority of Chancellor Kent, the eminent American jurist, that he found that, by allowing the same right of divorce to the woman as to the man, the very offence was brought about which it was the interest of society to prevent, because the man had recourse to it in order that he might obtain a divorce. The Legislature of this country also, in the divorce Bills it had passed from time to time, had always deemed it a wise and prudent thing to recognise the distinction made in the clause now under consideration, and, if his right hon. Friend the Member for the University of Oxford would refer to the judgments given by the learned Lords in the other House of Parliament on the subject, he would find that they expressed their belief that connivance at adultery would take place if the wife were allowed to obtain a divorce on the same ground as the husband. He (Mr. Walpole) therefore thought the distinction a wise one, and that the consequences of the crime of adultery were very different in the two cases, leading as it did in the one to a spurious offspring, but not in the other. On social grounds then, but on social grounds alone, he should oppose the Amendment of his hon. Friend, and support the clause as it stood.
§ Question put, "That the word 'incestuous' stand part of the clause."
§ The Committee divided:—Ayes 126; Noes 65: Majority 61.
§ Motion agreed to. House resumed.
§ Committee report progress; to sit again on Tuesday next.