HC Deb 14 August 1857 vol 147 cc1693-702

Order for Committee read.

House in Committee, resuming the discussion on the 26th clause.

THE ATTORNEY GENERAL

said, he had considered the Amendment proposed at the morning sitting by the hon. Member (Mr. Puller), and he thought it better to substitute for that Amendment words which would have the effect of imposing on the wife, subject to the discretion of the Court, the obligation of bringing the alleged adultress before the Court.

MR. PULLER

said, he was quite willing to accept the Attorney General's Amendment in place of his own if he thought it would accomplish the same object. He must, however, observe that there was no instance of any Court of justice allowing its proceedings to be hampered by a party for whom no relief was prayed, and on whom no punishment was to be inflicted, and he would therefore suggest that some words should be introduced to point out to the Court the reasons why the wife was to be made a party—such, for instance, as giving her an opportunity of vindicating her character.

THE ATTORNEY GENERAL

said, the wife was made a respondent in order that she might appear and contest the evidence. The Amendments which he proposed to introduce in the clause were these—In line 21, after "so dying," to insert the words, "on every petition presented by the wife for a divorce, the Court, if it seems fit, may direct that the person with whom the husband is alleged to have committed adultery may be made respondent." The second Amendment was to strike out the word "respondents" in the same line and insert "parties". The third, in the next line, to strike out "alleged adulterer" and insert in lieu thereof "allegation in the petition."

Amendment by leave withdrawn, and the first two Amendments proposed by the Attorney General agreed to.

On the third, for inserting the words "allegation in the petition," instead of "alleged adulterer,"

MR. AYRTON

observed, that by Clauses 27, 28,29, the Judge was to decide on several questions, but he thought that all those questions should be presented to the jury. He could not understand how the allegation was to be submitted to a jury while the counter charge was not to be so submitted. Then there was the question of connivance. He submitted that all the questions should be submitted to the jury. He hoped that the hon. and learned Gentleman would take some larger words than those which were proposed for insertion in the clause.

THE ATTORNEY GENERAL

said, that no petition from a husband would be received that did not contain a denial of connivance. However, he was willing that all contested matters of fact should be submitted to a jury. He, therefore, would propose to insert, instead of "allegation in the petition," "contested matters of fact."

Amendment agreed to. Clause agreed to.

Clause 27 (Court to be satisfied of absence of collusion).

MR. HENLEY

said, he should be glad to know what steps the Court was to take in order to satisfy itself upon that point. Was the Court to try a number of separate issues before it entered into the main case?

MR. AYRTON moved the omission of the words "duty of the Court to satisfy itself," his object being to leave all the questions referred to in the clause to the decision of a jury, and not to the Court, while the effect of those words would be to deprive the subject of those rights which he thought had been secured by Clause 26.

Amendment proposed, to leave out the words "duty of the Court to satisfy itself."

THE ATTORNEY GENERAL

said, that the two clauses were to have different functions, and to apply to different circumstances. In some cases there would be a respondent, while in many there would be no appearance. When there was no contest there would be no question for a jury, but it would be the duty of the Court to do that which was now done by the House of Lords—satisfy itself that the allegations of the petition were correct. It was to meet such a case that this clause had been framed. He did not think that its language could be improved.

MR. MALINS

said, he thought it was necessary that the Court should satisfy itself as to the facts.

MR. AYRTON

said, he should have been satisfied with the explanation given had it not been for the words at the end of the clause, "and shall also inquire into any counter-charge which may be made against the petitioner," which seemed to imply that the clause was applicable not only to a case where there was no appearance, but also to a case where there was not only an appearance, but a countercharge. He therefore submitted that words should be inserted to show that the clause was applicable only to cases in which there was no appearance. The finding of the Court should, he thought, be founded upon the verdict of the jury, and not upon any subsequent inquiry on the part of the Judges.

MR. BUTT

maintained that it would be the duty of the Court to satisfy itself as to the facts, irrespective of any admissions which might be made by the party petitioned against. There was no analogy between the Divorce Court and a Court of Law or Equity, because the former had to deal with an important social relation, and had a great moral duty to perform, which the latter had not. The clause, too, was based upon the canon law.

Question, That those words stand part of the clause, put and agreed to.

MR. BOVILL

said, he rose to move the insertion after the word "adultery" of the words, "or has by his or her misconduct or wilful neglect conduced to the same." The clause proposed that there should be two subjects of inquiry by the Court, independently of facts alleged in the petition—connivance and condonation. Those matters were an absolute and positive bar to divorce in the Ecclesiastical Courts; but there were other circumstances which ought to be inquired into—namely, whether the husband, supposing he was the party complaining of the adultery, had been guilty of misconduct towards his wife, and whether he had been guilty of wilful neglect of his marriage vows. The object of the words which he proposed was to compel the Court when the suit was not contested, to inquire into the conduct of the husband to see, whether his misconduct and wilful neglect had conduced to the adultery, and if so he apprehended it would be the duty of the Court not to grant the divorce. The husband must prove that he was not the instrument of his own disgrace. As the law existed at present that matter was necessarily investigated, both in the Ecclesiastical Court and in the Court of Common Law. It was more especially so in the latter court, where, although the conduct of the husband was no ground for determining the verdict, it was, nevertheless, taken into consideration by the jury when assessing the damages. And in the House of Lords the matter was carried still further, for by a Standing Order of that House, the petitioner was obliged to tender himself for examination by the Lords at the conclusion of the opening of his case. He thought that this matter ought still more to be attended to than formerly, inasmuch as the Bill extended the facilities for divorce; and, moreover, the House of Lords could exercise a discretion, but when a new tribunal was to be instituted the rules upon which it was to act must be defined.

Amendment proposed, in line 28, after the word "adultery," to insert the words "or has, by his or her misconduct or wilful neglect, conduced to the same."

THE ATTORNEY GENERAL

said, that independently of any objection to the looseness of the wording of the Amendment, he thought it was unnecessary, as the object which the hon. and learned Gentleman had in view was abundantly provided for in the clause as it stood. The words of the clause had been selected from the vocabulary of the Ecclesiastical Court, where the word "accessory" had been construed to mean any neglect or misconduct on the part of the husband which had led to the commission of adultery by the wife. Misconduct or neglect on the part of the husband at any time, not connected with the adultery, would be a matter totally unconnected with the issue before the Court.

MR. BUTT

said, he was quite prepared to support the hon. and learned Attorney General in his opposition to the Amendment, but he thought the 27th clause was open to improvement. The 28th clause declared what should be a conclusive bar to the husband obtaining a divorce, and the 29th practically covered the object which the hon. and learned Member for Guildford (Mr. Bovill) had in view in making a discretionary bar to a divorce, by providing that the Court should not be bound to pronounce a decree if the petitioner had been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelly towards the other party to the marriage, or of having deserted the other party before the adultery without reasonable excuse. He would suggest as an improvement to import into this section the words of the 29th clause.

MR. BOVILL

remarked, that the 27th clause imposed a duty upon the Court. The 29th clause contained a proviso that, in certain events, it should not be incumbent upon the Court to pronounce a sentence of divorce. How could that clause come in the place of the 27th? If it did, the 27th clause was mere surplusage. He must persist in asking for the insertion of the words he had proposed, which he believed to be necessary to carry out the expressed intentions of the Government.

MR. GLADSTONE,

without presuming to offer a legal opinion upon the effect of words, wished to observe that it appeared to him quite clear that the clause at present did not stand well. The hon. Member for Youghal (Mr. Butt) had pointed out that the clause must be viewed in connection with the two following clauses. This clause was one directing the Court as to the matters into which it should inquire and if it were necessary to have specific directions as to what the Court should inquire into, the chaise should state all the matters upon which the Court was to adjudicate. This clause directed the Court as to the matters into which it was to inquire, but it did not include all the matters upon which that Court was to adjudicate. In the 28th clause it was laid down that if a petitioner failed upon any of four grounds the petition should not be granted. In the first part of the 29th clause it was declared that if the petition was not found wanting upon any of those four points a decree should be pronounced. There was a discretionary power conferred, but all matters of injury must be stated. If that were not necessary, then the 27th clause was superfluous.

MR. BUTT

said, that defect in the clause was merely verbal, and would be removed according to his suggestion by the insertion at the end of the 27th clause of the words of the 29th clause, "or has been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted the other party before the adultery complained of and without reasonable excuse." The Court would then have power to inquire into all matters that might influence its own judgment.

MR. WIGRAM

said, he doubted the propriety of importing the words of the 29th clause into the 27th. The object of the words in the 27th clause was, that certain circumstances upon grounds of public policy should preclude the Court from granting a divorce.

MR. BOVILL

said, he did not think that the hon. Gentleman's suggestion would meet all the various cases which might come before the Court. In the 16th clause it was enacted that the practice and rules of the Ecclesiastical Court were to govern the new Court in reference to all cases but those of dissolution of marriage, and he was anxious in this clause to enact that the Court should be governed by the practice and principles which had always been observed by the House of Lords in dealing with divorce Bills.

MR. MALINS

said, he was inclined to agree with his hon. and learned Friend that the clause as it stood was sufficient; but to save time he thought the Attorney General would do well to agree to the insertion of the words in question.

SIR JAMES GRAHAM

said, that if the hon. and learned Attorney General would say that he would agree to the insertion of the words proposed, he should not detain the Committee with any further remarks. When the hon. and learned Member first moved the insertion of the words in question he was not inclined to agree with him, but after what had been stated he was bound to say that if the hon. and learned Gentleman took a division upon his proposal he should support him. They were about to transfer to the new tribunal the powers of the present Ecclesiastical Courts, the powers at present possessed by Other Courts in crim. con. cases, and the powers exercised in such questions by the House of Lords; and he felt certain that the Government could have no desire not to guard the power of granting a divorce a vinculo by all the provisions at present in force in these Courts. By the 27th clause the power of inquiry into connivance now exercised by the Ecclesiastical Courts was already given to the new Court; but still there would be wanted the precautions taken by the House of Lords, who would not grant a divorce unless there had been, not nominal, but substantial damages obtained from a jury, and it must be remembered that the verdict in the trial at common law depended upon what the conduct of the husband might have been.

THE ATTORNEY GENERAL

said, that his objection to the introduction of these words was, that if a husband had been guilty of conduct or of neglect that conduced to his wife's adultery, he would, both in the House of Lords and the Ecclesiastical Courts, properly be said to be "accessory to" that adultery; and that, if to an expression already having a definite meaning they added words expressing the same meaning in a different form, a Court of justice would conclude that they meant something more than was conveyed by the antecedent term. Although he entertained this objection, yet if the general feeling of the Committee was in favour of the Amendment he should be prepared to accept it.

MR. HENLEY

said, he wished to point out that in the 29th clause, in which this word "accessory" occurred again, there was a proviso empowering the Court to refuse a divorce in case the husband had been guilty of unnecessary delay or of cruelty. Therefore, here was something in which the Court was allowed a discretion beyond the matter included by the word "accessory," and he thought that similar words ought to be introduced into this clause.

SIR JAMES GRAHAM

said, that if the Attorney General was sure that the word "accessory" would include gross negligence, such as would now induce a jury to give a man only nominal damages, he did not think that this Amendment was necessary.

MR. WIGRAM

suggested that the object aimed at in the Amendment might be attained by adding to the clause a proviso, that a husband or wife who had, by his or her misconduct, conduced to the adultery of the other should not be entitled to a divorce.

SIR JAMES GRAHAM

said, that this would introduce a new definition of the word "accessory."

THE ATTORNEY GENERAL

remarked, that he saw no objection to the adoption of the course suggested by the hon. Member for the University of Cambridge.

MR. BUTT

said, he thought that if this proviso were agreed to, the 28th clause, also referring to cases in which the husband had been "accessory" to his wife's adultery, would not give a discretion to the Judges, but would create a positive bar to divorce.

SIR ERSKINE PERRY

said, he was afraid that, without the words, the door would be opened to divorce in cases where it was not at present recognized. He put it to the Committee, and the hon. and learned Attorney General, whether, under the language of this Bill, as it stood, in the case which occurred two or three days ago, where a farthing damages were obtained, the husband would not be entitled to demand a, divorce? If that were so he was sure it was not what the Legislature desired to see established.

MR. WALPOLE

said, that this clause referred to the three pleas in bar of a divorce, condonation, connivance, and recrimination, to which the Court was to be bound to attend. The proper clause in which to move the Amendment was the 29th, on which they might consider whether they would give the Judges, in certain cases, a discretion to grant or refuse a divorce.

MR. HENLEY

said, he must remind his right hon. Friend that this 27th clause pointed out into what the Court was to inquire, and of what it was to satisfy itself. It was the more necessary that the Amendment should be made because unopposed cases would be dealt with under this clause.

MR. BOVILL

said, he was not prepared to assent to any of the suggestions which had been made to him. The hon. and learned Member for the University of Cambridge (Mr. Wigram) had suggested the addition of a proviso defining the meaning of the word "accessory." Now the fact was that accessory was a word already well known to the law, and the case which he wished to meet was not that case whore the word accessory would strictly apply, but it was the case where such misconduct as did not fall within the meaning of the word accessory had taken place, misconduct of that nature which was at present taken into consideration by the Jury in awarding damages, and by the House of Lords in granting a divorce.

Question put, "That those words be there inserted."

The Committee divided:—Ayes 55; Noes 93: Majority 38.

MR. BOVILL

said, that the clause contained no provision with regard to collusion, and he should feel it his duty to move the insertion of words which would make it imperative upon the tribunal constituted by the Bill to inquire into the question of collusion. If the Government were sincere in the desire they expressed of not effecting any change in the law, they ought to make it the duty of the Court to inquire whether there was any collusion, and whether the parties were living separate and apart by consent before the adultery, in which case the House of Lords invariably refused a divorce.

Amendment proposed in the same line. After the word "adultery" to insert the words "and whether there has been any collusion, directly or indirectly, between the parties, or any of them, and whether the hushand and wife were living separate and apart by consent before the adultery was committed."

MR. COX

observed, that the 38th clause required that an affidavit should be filed stating that there was no collusion, and the Court would therefore have the power of inquiring into that question.

Question, "That those words be there inserted, put, and negatived.

MR. GLADSTONE

observed, that he wished to know whether his hon. and learned Friend (Mr. Bovill) had accurately stated the practice of the House of Lords, because, if so, he must oppose the clause as one essentially departing from the principles acted upon by that tribunal?

THE ATTORNEY GENERAL

remarked that he had never understood that the House of Lords considered the simple fact of a husband and wife living apart from one another to be a bar to a Bill of divorce. He would consider the propriety of introducing the words which had just been under discussion into the 29th clause.

MR. GLADSTONE

said, he wished to know whether the hon. and learned Gentleman would introduce the word "collusion" into the clause?

THE ATTORNEY GENERAL

said, the clause provided that the Court should inquire whether the petitioner had been "conniving" at adultery, and that he thought was sufficient.

MR. GLADSTONE

conceived, that the term "connivance" referred entirely to acts of adultery, while "collusion" would apply to arrangements made for obtaining divorces.

LORD JOHN MANNERS

said, that the only way in which collusion is provided against was by the 38th clause, which rendered it necessary to file an affidavit. But what is the value of an affidavit?

MR. BOVILL

observed, that he believed he had been correct in stating that the fact of husband and wife living separate and apart by consent before adultery was committed had, according to the practice of the House of Lords, been held a positive and absolute bar to divorce.

MR. WALPOLE

remarked, that he thought that security against collusion was provided by Clause 38, under which affidavits must be made stating that there was no collusion or connivance, taken in connection with Clause 40, which gave the Court power to examine the petitioner.

MR. HENLEY

said, he thought it rather odd that, while the marginal note was in these words, "Court to be satisfied of absence of collusion," the word 'collusion" did not occur in the clause.

Clause agreed to.

House resumed. Committee report progress; to sit again on Monday next at Twelve o'clock.