§ Order for Committee read.
§ House in Committee, resuming the consideration of the 25th Clause.
LORD JOHN MANNERS
said, he rose to move the insertion of certain words with the view to carry out a principle which he had endeavoured yesterday to bring before the Committee. He would assume for the sake of argument, that the deliberate 1626 opinion of that House was, that marriage ought to be dissolved on the ground of adultery; and, further, that, so far as the principle was concerned, marriage ought to be dissolved on the score of adultery both at the suit of the man and of the woman. Another principle, if he might so call it, which the Committee had decided, and which they were therefore bound to respect, was, that although as a matter of abstract right it could not be asserted that a woman ought to be placed in an inferior position to a man with respect to divorce on the ground of adultery, yet there were certain social considerations which ought to bar her claim. A third principle established by the Committee was, that the relief to be afforded to a wife was not to be left to the discretion of any Court of law, but was to be specifically laid down in the Act in connection with each particular case. The question then arose whether the causes which they had already included in the clause as justifying a claim of divorce on the part of a wife really exhausted the whole category of offences which when combined with adultery ought to be held as valid grounds of divorce. In his opinion they did not, and he wished to call attention to one case which had hitherto been entirely overlooked. He thought that the majority of the cases which the Committee had already deliberated upon and decided might be said, speaking generally, to affect more particularly the higher and wealthier classses of society. He now desired to direct the attention of the Committee downwards, and to ask them to consider the position and claims of women in the humbler ranks of life. Let them suppose that a poor woman had a husband who committed adultery, and that either previous or subsequent to the commission of that offence he rendered himself amenable to the laws of the country by the perpetration of some other grievous crime, such as burglary or forgery—the Committee had already decided that, in point of principle, the poor woman had a right to claim divorce from her offending husband, and he contended that there was no social consideration which could operate against and not in favour of her title to relief. Supposing the husband were condemned to penal servitude for life, in what position would the wife be placed? The natural protector of herself and her children was removed from her; she could not expect to receive from him a single sixpence for her and their support; she could not by law marry again, 1627 but was thrown hopeless and resourceless upon the world. He maintained that having recognized the human dissolubility of marriage, any woman so circumstanced ought to be permitted to marry again, in order that she might by that means procure the means of subsistence for herself and her children. In France, Sicily, the Canton de Vaud, Holland, Austria, and Prussia, relief was granted to a wife on the condemnation of her husband to any infamous punishment, even without the commission of adultery. What was there in the state of society or of law in England to prevent them doing the same justice to the poor woman whose case he had put before the Committee? He trusted, therefore, that the Committee would agree to the insertion of certain words which he had framed to treat the case he had supposed.
§ Amendment proposed, After the word "upwards" to insert the words "or of adultery preceded or followed by the commission of a crime for which the husband is sentenced to penal servitude."
§ Question proposed, That those words be there inserted.
§ SIR GEORGE GREY
said, he was sorry that no notice had been given of this Amendment, because it involved a new and important principle, which ought to be carefully considered. He understood from the speech of the noble Lord, though the terms of his Amendment conveyed a different notion, that, if a man were convicted of any offence, and sentenced to a punishment which involved forcible separation from his wife, the latter would be entitled to ask for the dissolution of the bond of matrimony in order that she might marry again. Now, a man might commit burglary or forgery, and yet be faithful to his marriage vow. He supposed, therefore—and the Amendment of the noble Lord was plain upon the point—that there must be adultery; but, surely, the noble Lord did not mean to say that if at any period of his married life a man committed adultery, and at some future time incurred the sentence of penal servitude, his wife should be entitled to a divorce, although the previous act of adultery might have occurred nobody knew when or where, or might even have been condoned? It seemed to him that the Amendment joined things which had no natural connection whatever. Those offences which the Committee had already adopted as sufficient grounds for the dissolution of marriage when combined with adultery were offences which involved a 1628 flagrant violation of the marriage vow; but in the case put by the noble Lord, there was nothing of the kind. Again, the noble Lord assumed that the sentence of penal servitude necessarily implied the forcible separation of husband and wife for the whole period of the sentence, and he understood the proposition of the noble Lord to be, that any sentence of penal servitude passed by a Judge should, without the decree of any Court, carry with it a dissolution of marriage. Now, a man might be convicted by a jury and sentenced to a term of penal servitude, and yet the Secretary of State might afterwards see fit, at the instance of the Judge, and upon further inquiry, either to commute the sentence into a short period of imprisonment, or grant a free pardon to the prisoner. It might happen, therefore, if the mere sentence of the Judge were to carry with it actual divorce a vinculo matrimonii, that the man might be at liberty a few days or weeks after the sentence had been passed, be divorced from his wife and free to marry again. Was the noble Lord prepared, after contending against the dissolubility of marriage, to sanction such an extension of divorce as was involved in the Amendment he had proposed? He trusted the noble Lord would not persist in his proposition, or that he would at least take another opportunity of proposing it when more notice had been given, in order that the wording intended to carry into effect a principle so novel and of so much importance might be carefully considered.
§ MR. HENLEY
said the Bill was so much altered from time to time that it was impossible always to give notice of Amendments. Certainly he had not understood the noble Lord in the same sense as the right hon. Gentleman the Secretary for the Home Department. The principle which the noble Lord wished to establish was that absence of the husband under the sentence of a Court, coupled with adultery, should be considered a desertion under the Act; and, certainly, it did seem that the case was sufficient to warrant at least an application to the Court whether the remedy should not be granted. The words no doubt would want careful consideration—as, if the adultery was condoned by the woman, she ought not to found any claim upon it—but otherwise her position was one which at least ought to be considered.
§ MR. GLADSTONE
said, that he had been rather surprised that the Committee had not perceived that in the proposition of 1629 the hon. and learned Member for Knares-borough, to include murder and manslaughter among the grounds for granting divorces, a very important principle was involved. The Amendment of the noble Lord was based upon the same principles, and were he obliged to pronounce an opinion at once it would be adverse to the proposition. He would, however, recommend the noble Lord to adopt the suggestion of the Secretary of State and withdraw the Amendment for the present, and if, after consideration, he should think it advisable to propose it, he could do so upon the Report. Although the Committee had been making most material alterations in the clauses, and extending the categories under which a wife might present a petition for a divorce, yet all those extensions had reference to one principle—that the additions to be made to adultery as a ground for divorce to the wife should be additions which in their nature and character were offences against the marriage contract. He thought it would not be wise nor safe to go beyond that principle, and he hoped the noble Lord would at least take more time to consider his Amendment.
§ LORD LOVAINE
said, he was not inclined to go beyond the principles stated by the right hon. Gentleman. On the principle of the noble Lord he did not see how they could refuse to grant a right to relief where the husband was attacked by hopeless insanity. He further wished to call attention to an anonymous letter contained in the papers, which had been laid before the other House, but not before that House. The insertion of such a letter was most unusual, and might lead to very inconvenient results.
§ SIR GEORGE GREY
explained that the papers referred to had not been presented to that House because they were not deemed to be necessary, and the Commissioners entertaining the same opinion had not appended them to their Report.
§ MR. BERESFORD HOPE
said, if the Amendment were adopted, the case of a man who had been convicted and received a ticket-of-leave, and found upon his return to this country that his wife had married again, might frequently occur. The law would then be pretty much the same as in Sweden. According to that law, if a man was for a certain number of years absent from his wife she might marry again; but if he afterwards came back the second husband must retire, unless an agreement were made to the contrary.
§ SIR WILLIAM HEATHCOTE
said, he would beg to remind the hon. Member for Maidstone (Mr. Hope) that a distinctive feature of his noble Friend's Amendment was that the desertion should be accompanied with adultery, and that therefore such a case as he had referred to could not occur.
§ MR. MALINS
said, he thought they should be careful to confine the right of divorce in this instance to cases where adultery was committed, and where abandonment of the wife took place in connection with that adultery. The right hon. Baronet had stated that the Report of Mr. Macqueen was not appended to the Report of the Commissioners; but it was impossible it could have been so, as Mr. Macqueen's paper was not published till nearly three years after the Report of the Commissioners. This important document, prepared by Mr. Macqueen, after careful inquiry in France, was ordered to be printed by the House of Lords, and by that means it had got into the hands of many hon. Members; but surely if it was of importance that the House of Lords should have such a paper it was equally so to the Members of that House, and he was therefore surprised that the Government had not taken steps to have it printed and laid on the table.
§ SIR GEORGE GREY
said, the document to which the hon. and learned Gentleman referred was the compilation of a private individual with which the Government had nothing to do, and they were not called on to produce it to the House. It was laid on the table of the House of Lords on the Motion of a noble Member of that House, not by the Government. He must say that he did not attach the same value to Mr. Macqueen's Report—seeing it was a purely private paper—that the hon. and learned Gentleman did, nor did he think it was one which the Government should have produced to influence the decisions of Parliament.
§ MR. MALINS
remarked, that he only wished to say, that if the document was useful to the discussion of this Bill in the House of Lords it must be equally so in the House of Commons, and he thought it was the duty of the Government to have produced it.
§ VISCOUNT PALMERSTON
said, he thought that seeing the hon. and learned Gentleman attached so much importance to this document he ought to have moved for its production.
§ MR. MALINS
reminded the noble Lord that it was not till the end of July they 1631 were informed of the intention of Government to proceed with this Bill. He might besides plead professional engagements as a reason why he did not move for the production of this paper, which he still believed it was the duty of the Government to have laid on the table.
said, he was opposed to this Bill on principle, as he believed it not only rested on no religious sanction, but was opposed to all religious sanctions, and I would be injurious to the domestic peace and morality of this country. He could not give his assent to any Amendments calculated to extend the area within which the provisions of the Bill were to apply; nor could he be a party to Amendments which might be proposed merely to lessen the chance of the Bill passing into a law. With regard to the particular Amendment before the House, as one fact was worth a thousand arguments, he would mention the cases which had occurred within his own experience. One was the case of a man in the higher walks of life, and the other that of a man in a humbler sphere. Both had been capitally convicted, but had their sentences commuted to transportation, and, after the lapse of many years, they both returned to their wives and families, and were now living in the enjoyment of domestic peace.
LORD JOHN MANNERS
said, that his not having given notice of this Amendment was his misfortune, and not his fault. He had endeavoured, as carefully as he could, to follow the proceedings of the Bill, and he had on the last night repeatedly expressed his opinion in favour of the principle which he now proposed. After the principle adopted by the Committee, that adultery removed from the marriage tie the stamp of God, they were bound to consider the rights of the woman as well as those of the man. Surely a penal sentence was equivalent to desertion for two years. It was argued on the other side that it might be the intention of the man to return. But they could not enter into intentions; all they could do was to take facts. The law of Sweden, which had been quoted, had no reference at all to adultery. It referred to a man who had been absent without any fault of his own. At the same time he was willing to withdraw the Amendment, reserving the power of proposing it on the Report.
§ MR. STEUART
said, he hoped that a penal sentence coupled with adultery would be considered a sufficient ground for divorce.
§ MR. NEWDEGATE
said, that from the previous decisions of the Committee they were now reduced to argue the question as a mere social contract, and it was for this reason that they were driven into the course they had adopted, and to do the best they could to make the Bill harmless. The Bill professed to be founded upon the Report of the Commission, and yet the documents upon which that Report was founded were not placed in their hands. They were not to be taunted because, after the total abnegation of the principles they advocated, they endeavoured to introduce as much justice as they could. He could not but complain of the dictatorial tone which the noble Lord at the Head of the Government had gradually assumed towards the Committee. It had been deeply felt by many hon. Members last night, but it would not prevent those who took an interest in the subject giving the provisions of the Bill their most careful attention, and even studied opposition when it was necessary. But a few days ago the noble Lord called upon the House to pass the Bill for the consolidation of the criminal law without examination, although it had been shown that it contained very important alterations and variations from the existing criminal law, and now he wanted them to pass this Bill, which was drawn up in a manner unworthy of the learning of those who were responsible for it, merely because it had come down late in the Session.
§ MR. COLLINS
said, he hoped that the Bill would not pass into law without some provision being introduced giving divorce in cases of aggravated felony, coupled with the commission of adultery.
§ Amendment, by leave, withdrawn.
§ MR. STAPLETON
thought that these Amendments, extending relief to the wife, required one addition to make them as nearly perfect as possible. What he referred to was, that when the wife should obtain a decree for the restitution of conjugal rights, and the husband should afterwards commit adultery, the wife should be enabled to demand a divorce. He should move the insertion of words to that effect.
§ Amendment proposed after the word "upwards" to insert the words "or of adultery committed after she had obtained a decree for restitution of conjugal rights"
§ Question proposed, That those words be there inserted.
§ SIR GEORGE GREY
said, that he did not see any necessity for this Amendment. 1633 The wife had two courses open to her, either to sue for a divorce or for restitution of conjugal rights. If she adopted the latter course, and obtained restitution of conjugal rights, he did not see how she could afterwards ask for a divorce on the ground of adultery.
§ MR. GLADSTONE
said, that on the previous evening they had experienced great difficulty in finding words which would meet cases in which there might be all the animus and substance of desertion, but in which the husband by certain occasional proceedings of his own might prevent his wife proving the offence according to the legal and technical meaning of the word. He thought that this Amendment would, to a considerable extent, although perhaps not altogether, supply that defect in the clause. According to it, the substance of the desertion would be ascertained by the suit for restitution of conjugal rights, and adultery following this would entitle the wife to a divorce.
§ SIR GEORGE GREY
urged, that as the Amendment stood, although a man might live with his wife for twenty years after the decree had been pronounced, yet a single act of adultery committed at the expiration of that period would render him liable to be divorced.
§ MR. STAPLETON
said, that he thought that there would be no injustice in such a provision. The distance of time had nothing to do with the matter. The husband would be guilty of two offences, and it was but right she should have a remedy for the second as well as for the first. It was only a similar case to that of punishing a felon on a previous conviction a number of years before.
§ VISCOUNT PALMERSTON
said, that he thought the Amendment an entire departure from the principle on which the Committee had hitherto proceeded. The word "desertion" in the clause implied that the desertion should subsist on the part of the husband, whereas the Amendment was based upon the assumption that the desertion had ceased. Now, whether the desertion had ceased voluntarily upon the part of the husband, or in consequence of a decree of the Court did not the least signify, and as soon as the parties came together again the desertion and all the incidents connected with it ceased: so that 1634 the practical effect of the Amendment would be to allow a divorce on the ground of adultery alone.
§ MR. AYRTON
said, that the words in the clause were "desertion without reasonable excuse." Now, it appeared to him that it would be better to leave the word "desertion" to stand alone, and at the end of the clause to introduce some definition of the meaning of the word desertion. As the word at present stood, it would apply only to leaving a wife without the means of support; whereas he believed it was intended to apply to the more general sense of a man's deserting his marital duties.
§ MR. HENLEY
said, he quite agreed with the noble Lord that when the parties had come together again, whether voluntarily or whether in accordance with a judicial decree, the desertion and the incidents connected with it were at an end.
§ Amendment by leave withdrawn.
§ MR. GLADSTONE
asked whether the definition of "incestuous adultery" at the end of the clause was necessary? Had not the words a definite legal meaning?
§ SIR WILLIAM HEATHCOTE
said, he proposed to add, as an explanation of the term "bigamy," the words, "that bigamy shall be taken to mean the marriage of any person being already married to any other person during the lifetime of the former husband or wife."
§ SIR GEORGE GREY
observed, he would be glad if the hon. Baronet would not at present press the Amendment, as he should like to take the opinion of his hon. and learned Friend the Attorney General with regard to it.
§ MR. BUTT
said, he now wished to propose an Amendment, the effect of which was that if any of the felonies mentioned in the Act as a ground for divorce were alleged against a husband, in the case where such felony should have been committed in England it should be necessary to prove a conviction, or that the man had been outlawed upon an indictment charging him with such offence.
THE ATTORNEY GENERAL
said, he was sorry he could not congratulate the Committee on the progress they had made with the Bill during his absence. Not only had they not been progressing, but they had in reality made a retrograde movement, 1635 as the Amendment was exactly the same as one which had been discussed the evening before.
decided that the Amendment was substantially similar to one which had already been discussed and disposed of by the Committee, and therefore could not be put.
§ Question "That Clause 25, as amended, stand part of the Bill."
§ MR. GLADSTONE
I do not intend to take the sense of the Committee on this clause, though I should join with any hon. Member who might think it his duty to do so. I am contented with the decision which was originally taken on the Motion of my hon. Friend the Member for West Surrey (Mr. Drummond), although I entertain the strongest conviction that if we were now to proceed to a division again, which should fairly raise the question of the wife's equality, though the Committee would not in that respect reverse its former decision, the proportion of the numbers on the division would be most materially altered by the course which our discussions have taken on this clause. At present the matter stands thus,—my noble Friend at the head of the Government thought fit to make a charge of obstruction against those who had been engaged in discussing the details of this clause, and the few words which I shall now say will be said with the intention, not of making an accusation against anybody, but of removing, if possible, from the minds of those, who think that charge was justified, the impression they entertain, and also the sentiment that we are greatly aggrieved by that accusation. My noble Friend made that charge when at midnight he found that we had been engaged for ten hours in dicussing the details of this clause. The exact foundation of the charge was that we had come to the end of the clause, that nothing remained to be done but to take the sense of the Committee on the question that it do pass, and that therefore it was an unwarrantable proceeding to move that you should report progress. That Motion, however, was not made by an opponent of the Bill, but by a friend of the Bill, who is not now in his place. My noble Friend was entirely mistaken as to the immediate grounds of the charge, for so far from having then disposed of all the points which had arisen on the consideration of the clause, we have nearly spent other two hours this morning in amending it, and chiefly on the invitation 1636 of hon. Gentlemen who are friendly to the Bill. Now, what I want to bring to your minds is this:—The real question between us is whether the Bill that we are now discussing is or is not a Bill which from its nature requires minute and detailed scrutiny and strict investigation. That is really the question between us; and, for myself, I say frankly that I may have said foolish things during these discussions, but I have not said one word purposely except what I believed was called for by the Bill on its own merits. Well, is it true that yesterday was spent by the Committee without profit? We have here been discussing the most difficult and complicated parts of a most difficult and complicated subject. If you had admitted the principle of divorce in the case of the woman as well as in that of the man this part of the operation would have been simple. I hold in my hand a communication from a gentleman who is acknowledged to be one of the highest authorities on the subject—namely, Mr. Macqueen, who, after disposing of the principle of the Bill, on coming to the question of the right of divorce to be given to the woman, says here the real difficulties of the Bill commence; and then he enters into a minute examination of the question of these cases. This is a clause which contains important and difficult matters sufficient to occupy this House for days and weeks. It embraces the whole principle of the Bill as regards at least one-half of the human race—namely, women, and forms a code of itself as respects the rights of women under the law of divorce. What are the signs of obstructed proceedings? The repetition of the same proposals is instanced, but I am not aware that the same proposals have been repeated by persons opposed to the Bill. There has been, a few minutes ago, an accidental case of that kind certainly, but it was only accidental. Have the proposals which have been made one after another been condemned by the general sense of the Committee? I have rarely known a harder day's work done in the House of Commons than was done by the Committee yesterday. We disposed of no less than eight or ten most difficult and important questions of law, and so far from those being proposals condemned by the Committee, compare the clause as it now stands with the clause as it originally came into our hands. The clause, as it first came before us, contained four categories under which the wife might present a petition; three 1637 of them remain nearly altogether as they were; one relating to bigamy has been fundamentally altered; and three new categories, making seven in all, were one after another introduced into the clause and with the unanimous assent of the Committee. Now, in the discussion in Committee on the Oxford University Bill, which was about the same length as this, but certainly not of greater importance or difficulty, I believe we were occupied not less than from twenty-five to thirty nights, and there were occasions during the discussions on that Bill on which we found, after spending six or eight hours, that we had not advanced above a line and a-half; but we never presumed to say to my right hon. Friend opposite (Mr. Disraeli), and to those who acted with him on that side of the House, that they were abusing their privilege as Members of Parliament, and offering obstructions to an important measure under the consideration of the House. This is a matter in which the difficulties are inherent in the case under the circumstances in which we are called on to discuss this Bill. My noble Friend at the head of the Government said at one period of the discussion on the Bill, "We shall sit here until September if you like." But let me assure my noble Friend that we have not endeavoured to delay the Bill by any factious opposition. We complained, on the contrary, of the Bill being put off, because we saw the difficulty of discussing it under the circumstances become greater and greater. If the Committee think the Bill should pass without minute examination of its details, let them say so, for that would relieve and discharge a considerable number of hon. Members altogether. I know at least that it would be an immense relief to me. Looking to the advanced period of the Session, I dare say the practice as regards divorce among the Members of this House has begun already; for many of us are detained here under circumstances which I fear bring us under the category of being for the present divorced a mensâ et thoro. Unless, therefore, my noble Friend can procure us some absolution that we should allow this Bill to pass without a minute examination of its details, we have really no choice but to attempt to bring his Bill into the best possible shape. The hon. and learned Attorney General has expressed an opinion that there will probably be some further legislation on this subject, and that this Bill is not to be "the be-all and end-all" 1638 of the question. There are many of us—not only of those who voted against the second reading of the Bill, but likewise of those who, like my noble Friend the Member for London, give a most earnest support to the Bill on its principle—who think and feel most strongly that it is our duty not to aim at what is called finality, of which human laws do not admit, but to give something like body, clearness, sense, consistency, and intelligibility to the code of which we are going to lay the foundation. It has been our absolute duty in considering all these most difficult questions with regard to the woman, to give as complete and consistent effect to the principle embodied in the clause, and which we thought most inadequately carried out, as we could possibly give to it. For that reason we have deliberated ten or twelve hours, and still, although we understand the principle of the clause, I feel doubtful whether there are not cases—gross and painful cases—cases too painful to be named—offences over and above the mere act of adultery characterized in the strongest terms in the Report of the Commissioners, and striking directly at the marriage contract and the peace and comfort of the wife—for which in the clause we have made no provision whatever. If I have been desirous that this Bill should not pass in the present Session, it has been upon the ground that I do not believe it can be made a work worthy of this House in the short time which remains to us; but I have not on account of that opinion descended to the wretched art of spinning speeches about nothing in order to waste the time of the House. On the contrary, I have declined to enter into personal questions, and have forborne to accept challenges of that nature. In that spirit I shall continue to act. I hope I have said nothing upon the present occasion to give offence to my noble Friend at the head of the Government or to anybody else. My desire is that a sense of wrong should be removed from one side or the other, and that we should now ascertain whether we are to continue to discharge our duties as Members of Parliament by a minute examination of this Bill or not. I think we have passed the most difficult part of the Bill. The next five or six clauses may undoubtedly give rise to points of importance, but after these clauses are over I should hope that we may proceed rapidly to that clause, the 53rd, upon which questions of great moment will be 1639 raised, which it must be the desire of us all to have settled without unnecessary delay.
§ VISCOUNT PALMERSTON
I can assure my right hon. Friend that there is nobody in this House who would regret more than I should do the having expressed in regard to other persons any opinion as to the course which they may think proper to pursue in discharge of their duty as Members of Parliament. It is quite true that things which I have heard out of this House, and some things which I have observed in this House, did lead me to think that there was on the part of the opponents of the Bill an intention, if they could not defeat it by divisions, so far to protract the discussions as to render it impossible for the Bill to pass this year. That was the impression created upon my mind. It very likely was an erroneous impression, and, after what the right hon. Gentleman had stated, I am bound to say that, in regard to him especially, that impression must have been erroneous. With, respect to the Bill itself, I can only say that we are quite conscious of its importance. We have no desire to hurry the House improperly through the measure, or to prevent ample and full consideration of all matters to which it relates. So far from complaining of full discussions, or of Amendments proposed in a spirit of improvement, we should be sincerely thankful to those who may afford us the means of improving a measure which we think of importance, and which we desire to pass in as perfect a form as possible. We felt that this Bill having originated in the other House of Parliament, having been discussed at great length by all those learned men belonging to the law who are members of that House, there was at least primâ facie evidence that the Bill was properly framed and not liable to serious objections. But, subject to that, I can assure my right hon. Friend that I would be the last man to complain of any Amendments which may be proposed in a spirit of improvement, and not for the mere purpose of producing delay. I trust, therefore, that hon. Gentlemen will acquit me of any wish to obstruct the full and free deliberation of the House upon a measure which, so far from desiring to pass hastily, we hope may receive the amplest consideration and amendment.
§ MR. GLADSTONE
I thank my noble Friend for what he has said, and shall take the liberty of adding only one word. I am afraid that a remark which fell from myself 1640 afforded some ground for the impression he entertained, and I should like to explain the circumstances, though I am rather reluctant to do so in the absence of the right hon. Baronet the Member for Droitwich (Sir J. Pakington). When the right hon. Baronet was conversing with the noble Lord across the table as to the day when his Motion for a Commission on the subject of education might be brought before the House, I cried out in an idle jest, "Fix it for the Greek Ka-lends." I can assure my noble Friend that when I used that expression I mainly referred to my sense of the objections which I thought would lie against calling upon this House at this period of the Session to discuss the question whether we should address the Crown to issue a Commission upon education.
§ MR. HENLEY
I think the Committee is perfectly satisfied with what the noble Lord has said, and, notwithstanding what we were told in the first instance, that he who ran might read, I imagine the noble Lord must now see that this Bill requires to be sifted and discussed in every clause and line. Numerous important Amendments have already been introduced into it, in a great majority of cases with the consent of those who have charge of the Bill, and I hope, therefore, that we shall hear no more of the charge that we are not taking a fair and honest course.
THE ATTORNEY GENERAL
In justice to the noble Lord at the head of the Government, I beg the Committee to recollect that nobody ever used the expression that "he who runs might read the Bill." The words that unfortunately fell from me were something very different, and have been greatly misrepresented. What I said was,—"The intentions of the Government are in the Bill, and he who reads may understand them." I hope that we shall now let bygones be bygones. If I were to recollect all the hard taunts I received yesterday I should regard them, when combined with the various Amendments which were proposed, as very "aggravating circumstances" indeed. Let us now, however, in that spirit of improvement which I believe exists on both sides of the House, proceed with the Bill as expeditiously as possible.
LORD JOHN MANNERS
said, he wished to inquire whether it was the intention of the Government, under the new system to be established by this Bill, to prohibit women from having recourse to the House 1641 of Lords; and also, if it was not their intention to do so, but to carry out the recommendation of the Commissioners, in what way it was proposed that application to the Legislature should be made?
THE ATTORNEY GENERAL
said, he could assure the noble Lord that there was nothing in the Bill to affect the future authority of Parliament. The right of a wife, under aggravated circumstances, not provided for in the Bill, to apply to the Legislature for a divorce, would remain wholly unaffected.
§ MR. GLADSTONE
said, he had fully intended to have raised that question at some stage of the discussion. Much alarm had been created by certain words which fell from the hon. and learned Attorney General, to the effect that the Bill was not "the be-all and the end-all" of legislation. He (Mr. Gladstone) hoped he was justified in putting a limited construction upon that expression, and that the hon. and learned Gentleman meant to say that he contemplated as possible new remedies for the woman might, from time to time, be entertained to fill up the void space left by the House of Lords. If that were the intention of the hon. and learned Gentleman no objection could be taken, as those new remedies would be natural and inevitable from the imperfect manner in which they were at present legislating. He did hope it was not intended to hold out a prospect that new causes of divorce, opening new principles, were likely to be introduced by the House of Lords. It was important that they should know what advice would be tendered by Her Majesty's Government to the House of Lords on the subject.
THE ATTORNEY GENERAL
said, he would remind the Committee that when he made the observation which was supposed to bear the interpretation that the right hon. Gentleman had mentioned, he was suggesting the propriety of confining these discussions to the limited field covered by the Bill, without attempting to define the existing law. It was in answer to the argument that the existing law did not do full justice to the woman that he used the expression that the Bill, if passed, need not be the end-all of legislation upon the subject. He said that, not as indicating any intention on the part of the Government to make the marriage law a subject for further legislation, but as pointing out the fact that if the condition of woman should afterwards be found to require further legislative interference, there would be nothing to prevent 1642 that further interference. As to what the House of Lords would do, the Government, of course, would not presume to dictate to that body; but if the House of Lords was true to itself, and should abide by the rules by which it had hitherto been governed, there would be no room for application to them for divorce on the part of wives, because all the existing causes of interference hitherto recognized by the House of Lords were embodied in the Bill, and even more than those grounds. At the same time, he could not presume to say what the House of Lords in its wisdom might think fit to do upon future occasions.
§ LORD JOHN RUSSELL
I have heard with much satisfaction the declaration which has just been made by the Attorney General. Of course it was never pretended there was to be finality in legislation, and I do not say that the House of Commons may not at some future time think fit to adopt the Scotch law of divorce or any other principle which may seem to them at that time to be most conducive to the benefit of the country. But what did alarm me was that the hon. and learned Attorney General seemed to imply that the Government which has brought forward this Bill, and asked us, if not to change the legislation, at least very much to vary the principles of law which have hitherto governed us in respect to divorces—the Government of which he was the organ, declared this was not to be the end-all, but that they intended in some future Session to propose some further measure upon this highly important subject. I thought that was alarming, as tending not only to introduce instability into our legislation, but to instil false ideas into the minds of all who have entered or were about to enter into the holy state of matrimony. I am glad to find that no such meaning was intended to be conveyed. [The ATTORNEY GENERAL: "Hear!"] Admitting as we must do, that the statement of the Lord Advocate is one of the greatest importance, and that it may be possible that Parliament will adopt the principle which he tells us experience has shown to be so good in Scotland, it is not intended by the Government to carry in a future Session any measure going beyond the present Bill. I think the Committee are very much indebted to the noble Lord (Lord J. Manners) for the Amendment which he proposed yesterday, and which seems to me to change the whole complexion of the clause, and to make the law to resemble more the Code Napoleon—a 1643 code which had been framed by the Council of State presided over by Napoleon, and which comprised some of the greatest French lawyers. That I conceive to be a great improvement in the law. As to any cases which may hereafter come before the house of Lords upon the petition of the husband or the wife for divorce in particular instances, I think we may safely leave them to the discretion of that tribunal. That House comprises the Lord Chancellor, the Lord Chief Justice, and other eminent and learned personages, as well as the Archbishop and Bishops, who would represent the opinion of the Church, and I do not think they are likely to undertake a case of divorce without some very good grounds, or that they believe it to be a case separate from the ordinary principles of legislation requiring their interference. Such cases might not occur more than once or twice in a century, but when they do the House of Lords can deal with them as they may think proper. I am glad to find that the heat which prevailed at one time has passed away, and that the Government have discovered that those who entered upon minute criticism of the clauses of this Bill were only pursuing a legitimate course of action. I think there were two courses to be adopted,—one was to say, "It is too late in the Session to bring in this Bill;" and the other, "That this is a Bill of such great importance that we must discuss minutely every clause in the Bill." There might have been, indeed, another course, and it might have been said by the Government. "We are determined to have this Bill, but as it is so late we cannot discuss it;" but such a course would not have been defensible. I trust that in the further progress of this Bill we shall have no captious objections taken (and I do not think there have been any), and, on the other hand, I hope the Government will be disposed to discuss any Amendments in the same spirit of candour in which those Amendments will be proposed.
said, that for certain cases a remedy would be given through the House of Lords, but others would be found of equal hardship which would not come within those cases. They could not arrive at finality until they admitted the principle of perfect equality as to divorce between the two sexes, leaving the social danger to be counterbalanced by the hesitation which the wife would feel in applying for divorce. He thought that disturbing the minds of the lower orders by repeated 1644 legislation on this matter would be of great injury, and that their best plan would be to adopt the simplicity of the Scotch law.
§ Clause agreed to.
§ Clause 26 (Adulterer to be a co-respondent: Cause may be tried by a jury).
§ MR. PULLER
said, he rose to move an Amendment which would apply to this and the 31st clause, his object being to raise the question whether the offence of adultery should be punishable only with fine, as now proposed in the Bill, or whether it was not expedient to impose the heavier punishment of imprisonment. The Committee would perceive that the Bill took a chronological view of what was to be done in carrying out its main provisions. Clause 25 laid down what were to be regarded as grounds of divorce. Clause 26 stated who were to be the parties to a suit. The next two clauses pointed out what the Court was to have proved or disproved, and then proceeded to show what relief could be given to the parties. Clause 31 armed the Court with the power of punishing the adulterer with fine. Now, what he proposed was, that every party brought before the Court who should be proved, to the satisfaction of a jury, to have been guilty of adultery should be liable to be punished by fine or imprisonment, or by fine and imprisonment; and this punishment he would make applicable both in cases of dissolution of marriage and in those of judicial separation. As the Bill stood it was inconsistent with itself. It provided that on the petition of a husband the alleged adulterer should be punishable by fine and accordingly made him a co-respondent; and it gave each of the respondents a right to claim the protection of a jury. But there were no corresponding provisions for the case of a petition presented by a wife. He proposed to remodel Clauses 26 and 31, so that whether the petition were presented by a husband or a wife, all persons accused of adultery should be made respondents and be punishable on proof of the fact. If the Committee made the alleged adultress punishable she must be made a co-respondent to the petition, and in many cases it would be greatly for the advantage of her character that she should be placed in that position. This might be said to be an innovation, but it was an innovation which naturally followed from the changes which were made by this Bill in the legal procedure in these matters. Adultery was now, for the first time during the last 500 hundred years—with the exception 1645 of the short reign of the Puritans;—made a crime punishable by the State. But how was that principle to be carried out? On the wife who had disgraced her husband's home, who had abandoned her children, and deprived them of a mother's care; on the husband who had added to adultery incest, cruelty, and felony, the Bill inflicted no punishment at all. It gave the injured petitioner the remedy of divorce, but in many cases that would be a boon rather than a punishment to the respondent. The only person who was punished under the Bill was the adulterer who committed adultery with a married woman, and he was only punished by a pecuniary fine, the lightest and the least disgraceful of all punishments known to our law. And yet the crime of adultery stood in the Decalogue between murder and theft, and by the majority of the people was regarded with far greater abhorrence than the lighter class of thefts. Property was protected by the law in every way, but the institution of marriage was entirely unprotected. He trusted the Committee would adopt a more intelligible policy, and do that which was done by every civilized nation in the world. The punishment imposed by the Bill on the person committing adultery with a married woman was a fine, but the effect of this would be fine for the rich and imprisonment for the poor—a circumstance which would not tend to make the Bill acceptable to the people. It was objected that if adultery in the wife were made punishable by imprisonment, the husband would be unwilling to sue for a divorce; but it was not likely that when a husband had made up his mind to expose his wife to the infamy of having her sin published to the world he would draw back from the fear of seeing her imprisoned. The real difficulty which he (Mr. Puller) had to encounter was the reluctance which honourable Members felt to pass a clause which might have the effect of sending to prison, to live upon prison fare, to wear prison dress, and to associate with common criminals women of high birth, courtly manners, and luxurious habits. If punishment were regarded merely as retribution, the loss of home, of children, and of position might be quite sufficient, but as a means of prevention something more was required. The House was now legislating, not only for ladies and gentlemen, but for the middle and, it might be, the labouring classes of England. He believed that if in 1646 times past the law had made adultery punishable us a crime, many a poor woman whose life had gone down in misery and shame, might have been saved; and on behalf of every English girl who had been virtuously brought up, he asked, not license to sin with impunity, but that in her hour of trial the law might be to her, what it ought to be to every one, a shield and a defence against her strong temptation to do wrong. The imposition of a punishment would act not only to deter women from committing adultery, but also to deter men from soliciting them, because society would cry shame with a voice much louder than that with which it now spoke against a man who, to gratify his own passions, persuaded a woman to place herself in peril of imprisonment. The responsibility was thrown upon the Committee to decide whether they would leave husbands and wives wholly unrestrained by law, or whether they would do what they could to prevent the crime. Extending, as they did by this Bill, the facilities of divorce, they ought at the same time to take additional precautions against collusion; and what better defence against that could there be than bringing every person implicated in the offence before the court, making each of them liable to punishment, and thus giving to all of them a direct interest in bringing the truth and the whole truth before the Court? In conclusion he must remind the Committee that although the Amendment was proposed chiefly with a view to such an alteration of the 31st clause as would make all persons convicted of adultery, punishable by imprisonment, yet it had also two other objects, that of enabling a husband against whom his wife presented a petition to claim a jury, and that of enabling the woman with whom he was alleged to have committed adultery, to defend her character by making her a co-respondent. It had been repeatedly pressed upon them, that amongst the disgraceful circumstances which belonged to the civil action of crim. con., which they now proposed to abolish, one of the most cruel was, that an action might be brought by a suspicious husband against a man for adultery with his wife without any real grounds at all, and that the unfortunate wife would be obliged to stand by and hear her character discussed, and perhaps blasted for ever, without the possibility of cross examining one single witness. Well, if the Bill passed in its present shape precisely the same injury 1647 would be inflicted on the woman whom a wife petitioning for a divorce accused of adultery with her husband. She might be herself a married woman, the respected mother of a family, she might even be living abroad, and in her absence she might be convicted of adultery upon a collusive suit, without either herself or her husband having any knowledge of the proceedings, and might have no resource but writing a letter to The Times to protest her innocence.
§ Amendment proposed; To leave out the words "presented by a husband" in order to insert the words "for the dissolution of a marriage, or any petition for a decree of judicial separation on the ground of adultery being presented."
§ Question proposed—That the words "presented by a husband" stand part of the clause.
§ MR. HENLEY
said, he should not follow the hon. and learned Gentleman into his rather irregular discussion of the 31st clause, which would come hereafter. Setting aside that section, there were other reasons why this clause required Amendment. The clause, as it stood, was entirely one sided. The Bill provided that a husband should have a remedy against the wife for simple adultery, and the adulterer, by the present clause, was to be made a co-respondent to the petition, and the guilt of the wife and her alleged paramour to be tried by a jury. But what was the case if a wife petitioned for a divorce against her husband, and the offence alleged against the husband must be, not adultery alone, but adultery under aggravated circumstances? Why, there was no provision made for making the alleged paramour of the husband a co-respondent and having the case tried by a jury; but as the Bill stood, an innocent woman might be alleged by a wife to be her husband's paramour, the case might be tried in her absence, without her being made a party to the suit, and her character might be destroyed, while such an action would be attended with all the scandal which at present disgraced the action for crim. con. He did not believe this to have been the original intention, but, he would ask, could there be a greater instance of the carelessness and recklessness with which this Bill had been prepared? Why, one of the grounds on which the House was asked to support it was that it abolished the action of crim. con., and yet it imparted into another action all the scandal of an action for crim. con. What he wished to know was 1648 whether the Attorney General would be prepared to introduce words into the clause which should place both parties on an equal footing.
THE ATTORNEY GENERAL
said, he was very glad the subject had been brought under the notice of the Committee, because it was one of great difficulty and not to be too hastily dealt with. It was, however, for the Committee to consider whether the parties to the adultery should universally be all parties to the defence. By the clause the obligation was thrown upon the husband of making the alleged paramour of his wife a co-respondent to the petition, and it was only under certain circumstances that he could be relieved from that obligation. Now, a petition against the husband would contain other allegations than that of adultery alone, and it was only in respect to the allegation of adultery that the alleged paramour could be made a co-respondent. But then came another difficulty. Suppose the alleged paramour of the husband was a married woman, then it was a question whether she could be made a co-respondent without her husband. For his own part, he deprecated multiplying difficulties in the way of an application by the wife. She would have a great many difficulties already to contend against. The husband had means at command which she had not, and in many cases, also, it would be impossible to serve a notice upon the alleged paramour of the husband. It was true that in all cases the notice could be served on the husband himself, but in the event of his running away with a woman who had no known place of residence it would be impossible to serve notice upon her, as no Court would consider a vicarious service upon her paramour as sufficient. If, therefore, an equal obligation were thrown upon both sides, the woman would be exposed to a great amount of trouble and expense which might unduly interfere to prevent application on the part of the wife. The Court would, by the 50th section of the clause, have the power of laying down its own mode of procedure upon the subject; but he would have no objection to frame a clause if the Committee should think that it would be advisable, to place the woman upon the same footing as the man, the Court, of course, having power to dispense with service of notice on the alleged paramour, under special circumstances. The action for criminal conversation was to be superseded entirely, and therefore it was felt to be right to strip 1649 the Court, where the husband complained of adultery, of the power of deciding on the facts, and to impose on it the obligation of having the facts decided by a jury. The wife, also, had a right to complain of adultery when attended with aggravated circumstances, and the question was whether the husband and the paramour of the husband should in all cases have the right of requiring the facts to be proved before a jury. It would be but a truism to say that where a man's character was at stake he should, in the event of his being brought before a judicial tribunal, have the right of having the matter investigated by a jury; but yet how great was the difficulty in such a case thrown on the wife! The wife, though she had been treated by her husband with the most aggravated cruelty, might have no means whatever at her own disposal of obtaining relief, and her connections might be destitute of resources. If she applied for legal aid, a solicitor would probably tell her that to obtain the desired redress she would have to expend £300 or £400; for it must be remembered that the adultery must have been attended with aggravated circumstances, the proof of all of which would be attended with great difficulty and expense. If, therefore, the Committee gave the husband the right of compelling the wife to substantiate her allegations before a jury they would throw impediments in the way of a defenceless and unprotected woman which in many cases might be the means of baffling altogether their humane legislation in her favour. The Bill when before the House of Lords received many important alterations. He was not aware what its state was when first presented to the House of Lords; but he had not thought it right to suggest any alterations in the clause for the reasons he had given. If, however, the Committee desired a parity of procedure in the case of the wife, he should be most happy to throw the clause into that shape; but he could not help placing before them the difficulties to which he had alluded for their consideration. He would put a case which might frequently happen. Suppose a wife applied for redress, produced her own affidavits and the affidavits of her own maid-servant, who might have witnessed some of the grievous acts of cruelty to which the wife had been subjected; and suppose, too, the adultery of the husband had been a notorious thing and was easily capable of proof. In that case, the husband might not file a single affidavit in opposition, or contest 1650 any one of the allegations made by the wife; yet if the Committee were to lay down the rule to which he had referred, the husband might say that those were all questions to be tried by a jury. That, he submitted, would be a hard case against the wife, and, as he had said, a serious impediment in the way of her availing herself of the humane legislation which had been passed in her favour.
§ MR. AYRTON
said, he had heard with great alarm the statement of the hon. and learned Attorney General. The Committee had now before them two distinct propositions. The first was whether the adultress should be brought before the Court in any proceeding to be instituted by the wife. On that point it appeared to be the general opinion of the Committee that in some cases it would be desirable to bring the adultress before the Court, but that it should not be made compulsory on the wife to bring her before the Court in all cases. He came, however, to the more important question of the two—namely, the right of any person accused of an offence to demand to be tried by a jury. The Attorney General in this case had suggested that that right was to be qualified simply on the ground of expense. He (Mr. Ayrton) could not understand on what principle a procedure was to be defended which directed that a man should be tried on accusations vitally affecting his status in society without the intervention of a jury, simply on the ground of saving expense to the party who came forward to prefer these accusations. It was a doctrine which he would venture to say had been stated for the first time in the House of Commons that any tribunal might convict a man of rape, bigamy, or incest, without the intervention of trial by jury. The Government had opposed the proposition previously made in the Committee, that a man was to be previously convicted of any of the crimes cited in the 25th clause, as giving the wife the right of divorce before any of those crimes could be imported into a proceeding for a divorce. If that proposition had been adopted, the husband offending against the law would have been brought before a Criminal Court without the prosecutor being necessarily put to any great expense. That proposal, however, had been rejected, and the Committee were now asked, on the ground of a saving of expense, to send the offending husband to be tried before three persons on such vital accusations as those to which reference had been made. He 1651 thought that was a proposition to which the Committee would never assent. If the Committee would look to Clauses 27 and 28 it would be seen that it was quite impossible to limit the right of trial by jury to the mere fact of adultery, and that the question of connivance, which was intimately connected with the adultery, should also be submitted to a similar ordeal. The whole question of trial by jury, with regard to the provisions of the Bill, must be fully reconsidered.
§ LORD LOVAINE
said, he wished to ask whether, in the case of a man bringing forward matter to rebut the accusation of his wife, the Judges of the Court would, certainly, as of right, order the circumstances to be investigated before a jury?
THE ATTORNEY GENERAL
replied that the Judges would not be bound on any occasion to direct a trial by jury; but, following every rule of procedure hitherto observed, they would, doubtless, take that course.
§ MR. BOVILL
said, he would remind the Committee that the House of Lords always required that the facts of the adultery should be clearly established to the satisfaction of a jury. [The ATTORNEY GENERAL: Yes, where the husband is the applicant.] True—but he would also beg to call the attention of his hon. and learned Friend to the circumstance that in the last case, where an endeavour was made by some of the Judges to determine adultery upon affidavits, it was found impossible to do so, and after long investigation and considerable expense they were compelled to have the evidence given orally in Court. Therefore when a constitutional tribunal had the fact of adultery ascertained by a jury he thought it would be monstrous now to say that there should first be investigation upon affidavits, and then, at the discretion of the Court, that a jury should be afterwards summoned.
THE ATTORNEY GENERAL
said, that he did not oppose the suggestion, he only wished to have the opinion of the Committee. He would not object to insert the words, "The Court, if it think fit, shall have power to order that the party with whom the husband is alleged to have committed adultery shall be made a party."
§ VISCOUNT PALMERSTON
stated, that he proposed that the House should meet to-morrow for the purpose of advancing unopposed Bills a stage, and that the Divorce Bill should be proceeded with on Monday at noon.
§ House resumed. Committee report progress; to sit again this day at six o'clock.