HC Deb 21 August 1857 vol 147 cc1974-99

Order for Third Reading read.


said, he rose to address a few observations with respect to the Bill and the manner in which it had passed through the House, although he had no intention of opposing the third reading. It would be remembered that when the Bill first came down to that House, at the end of July, he had proposed that it should be postponed until next Session, upon the ground that there would not be sufficient time before the rising of Parliament to consider fully so important a measure. The House, however, determined otherwise, and upon the 30th and 31st of July a discussion took place upon the question of the second reading, which was carried upon the latter evening. The reasons assigned by the Government for pressing on the Bill were, that it made no change in the law, that it merely removed a great blot on our institutions by substituting one Court for the three tribunals—the Ecclesiastical Court, the Court of Common Law, and the House of Lords, to which a person seeking a divorce was obliged to have recourse; that it got rid of a great scandal on our national character in the shape of the action for criminal conversation, and that it would bring divorce, which heretofore had been a privilege within the reach of the rich man only, home to the doors of the humblest classes. They would see in the course of his observations how all these matters had been carried out. He (Mr. Henley) had urged that the Bill was brought in at a period of the Session when it was not possible for it to be fully considered, and he thought he could now show that his predictions had been verified and that the measure had not been brought in in a shape that was at all creditable. Much time had been bestowed upon the Bill. Since the second reading it had been under the consideration of the House in Committee on seven occasions, of which several were morning and evening sittings, and the result of those discussions was that there had been thirteen material changes introduced into the Bill. When they were first invited to consider this Bill they had been told by the Government that it was a perfect measure, and had undergone the fullest discussion in another place by those who were best acquainted with the subject, and that any one who read the Bill might know the intention of the Government. Of the thirteen changes that had been introduced, ten had been made without a division, and with the assent of the Government. Surely that single fact would prove how well the opponents of the Bill were justified in regarding it as an unmatured measure. Two other material changes which had been introduced after division were not proposed by hon. Members hostile to the Government, but by the Government themselves, and only one change had been introduced upon the suggestion of a hon. Member who was hostile to the measure. The country and the House were able from these facts to judge how far the measure was perfect, even in the opinion of the Government, when it was first introduced to them. During the progress of the Bill through Committee there were fifteen divisions, of which seven were upon Amendments proposed by hon. Gentlemen who voted for the second reading; five had been raised by opponents, and three by hon. Members who were not prominent on the one side or the other. Now, what were the changes in the law made by the Bill as originally introduced? A most material but most beneficial change had been made in regard to the status of women separated from their husbands either by judicial separation or divorce. Another material change had taken place in extending the grounds upon which dissolution of marriage could be granted, and also in the provision made for the care and custody of children. All those were most important changes in the law. Then, what were the changes that had been introduced into the Bill during the discussions in that House? The first and most material change was in the constitution of the new tribunal. A long discussion took place, and upon a division the Government carried by a small majority the proposition that the constitution of the Court as contained in the original Bill was sufficient, but afterwards, being pressed no doubt by the arguments which had been offered, they undertook to reconsider the point. It was only fair to the Government to say that they had honestly redeemed that pledge by adding to the members of the new Court the three senior Puisne Judges of the Courts of Common Law. Passing over the lesser change in the Bill, caused by imposing upon the new Court the decision of suits for nullity of marriage, the next important alteration was in reference to the local jurisdiction in matters of divorce. That was a question arising not out of the abolition of the jurisdiction of the House of Lords but of that of the Ecclesiastical Courts. Even that portion of the subject had not been definitely disposed of, for a question had been raised by an hon. Gentleman who bade fair to be a most valuable Member of that House (Mr. Lygon) whether persons residing in India would be able to avail themselves of the benefit of this measure, and that point remainded still unsettled. At the present moment it remained to be seen whether all Her Majesty's subjects who resided beyond the limits of England and Wales were to be left to have recourse to what had been stigmatized as the great blot upon our institutions, or were to be left entirely without remedy; or whether the Government intended to bring in a supplemental Bill next Session. Reverting to the subject of local jurisdiction, he would remind the House of a declaration from the noble Lord at the head of the Government which had caused him (Mr. Henley) no little surprise, considering the noble Lord's station, experience, and ability. The noble Lord had told them that it would be as well to do without local jurisdiction, and that he thought judicial separation should not be encouraged as divorce a vinculo was a better tiling. That was a surprising declaration coming from such a quarter, for it must be remembered that judicial separations were to be granted for other causes than adultery, such as cruelty or desertion; and there could be no reason why parties who had separated for one of those causes, but who had subsequently become reconciled, should not come together again. The Committee, however, did not agree with the Government, and upon a division determined to have local tribunals of some kind. The hon. and learned Gentleman the Attorney General, to whom the House was much indebted for the great ability he had displayed and the great pains he had taken in regard to this measure, had since brought in a provision which he conceived would meet the wishes of the House. The next important alteration referred to the advantages secured to the wife in case of separation or desertion by her husband. Then came the important question of the conditions on which dissolution of marriage was to take place. When the Bill came down from the House of Lords it contained two grounds on which the wife might obtain a divorce against the husband, additional to those which had previously been recognised, namely, cruelty and desertion. The cases in which the wife might obtain a divorce were four in all—namely, adultery on the part of the husband coupled with bigamy, adultery coupled with cruelty, adultery coupled with desertion, and adultery coupled with incest. To these this House added two others,—adultery committed within the conjugal residence, and rape. There were also added the commission of an unnatural crime and bestiality, not connected with adultery. Here were a number of changes in a Bill on which Government had told them, in the first instance, that their minds had been made up. As the Bill came from the Lords it was provided that where the husband sued for a divorce the adulterer should be made a co-respondent. The Government, without a division, consented that in the case where a wife sued for a divorce the adultress might also be a co-respondent. This again was a very important alteration in the Bill. As the Bill came from the Lords, if a person did not go into Court with clean hands it was held to be an absolute bar to divorce, and the Court were bound to dismiss the petition; but on the Motion of the hon. and learned Attorney General, and on a division, it had been decided that such was not to bean absolute bar to divorce, but that the Court was to have a discretionary power of saying whether it ought to be so or not. The discretionary power of the Court to dismiss suits had also been materially enlarged, for it had now power to dismiss a suit in the case of wilful separation, or wilful neglect or misconduct that was alleged to have conduced to the adultery. He did not say these changes were improper. His sole object in now adverting to them was to show that the greater part of them had been made with the full consent of the Government, and that therefore those who insisted on a full discussion of the measure had not done so in vain. Much might be said as to whether they had been made with due deliberation in those lengthened and exhaustive sittings; but he did not wish to raise that question but merely to record the changes. Having thus called attention to the changes that had taken place in the constitution of the tribunal and the mode of procedure, he would now point out some of the alterations that had taken place in the Bill in its subsequent stages. The first, and not the least material of these, regarded the fine to be imposed on the adulterer. As the Bill came down from the House of Lords it had this strange provision, that it empowered the Court to impose a fine, while there was nothing in it declared to be a crime or an offence. It simply declared that a fine was to be imposed; there was no limit to the amount, and no means provided of escaping from it when imposed. Seeing how objectionable this provision was, the hon. and learned Attorney General proposed an Amendment by which the fine was to be applied as compensation, thus taking it out of the category of fines and putting it in that of damages. On discussion, the whole proposition was found untenable, and by common consent the fine was struck out and the clause was left simply to apply to costs. The hon. and learned Attorney General, had, however, brought up another clause after they had gone through the Bill. One great cause given for bringing in the Bill was, that it would get rid of a public scandal; but it did no such thing, for by this clause the question was still to be tried by a jury.—(Mr. AYRTON: The action is no longer essential to a divorce.)—The clause provided that the parties might claim damages either in cases of dissolution of marriage or of judicial separation. The case would then be sent to a jury, and would be tried by the same rules and regulations as an action for crim. con., so that the public scandal which was so much complained of would remain just the same. After going, therefore, through various degrees of squeamishness the House had ended by bringing matters back again exactly to the point where it found them. The next important change was as to the appeal. As the Bill came down from the other House there was no appeal, except to the House of Lords, on points of law; but the Attorney General of his own motion at once inserted a provision in the Bill that there should be a general appeal, and so it now stood. A most important addition also had been made to the Bill, altering very materially the manner in which it would bear upon the clergy. The point was unnoticed in the House of Lords, but the concession of the Government, although not perfectly satisfactory, was a very considerable alteration. So much for the changes which had been made in the Bill, and now for the probable effect which these would have upon its working. It was impossible to say that the question of the local Courts had received sufficient consideration on account of the pressure of time, and the settlement which had been agreed on was very far from carrying out the boast made on the introduction of the Bill, that facilities for divorce would be brought home to the poor man's door. Nobody had been able to say very clearly what would be the expense of obtaining a divorce under the new system, but it was clear that it would not be very small. The Court would have to inquire into the points of collusion, connivance, and so on. All this would take up considerable time, and time in law proceedings was expense. The case would have to be tried by a jury; indeed, it was not very clear whether there would not have to be two trials—one to try the facts on which the divorce was sought, the other to assess the damages. By the skilful union of the Chancery and Common Law Procedure, in the procedure of this Court the suitors would have the advantage of the blessings or curses of both systems. The Court would act upon common law rules in all applications for new trials, bills of exception, and the like, but it would not act, like the Court of Chancery, until its conscience had been satisfied of the facts. Perhaps two of three trials before a jury would be necessary before the conscience of the Court was satisfied. This was not at all unusual in Chancery proceedings, and then the Court would give its decision. If the parties were at all of a litigious disposition there would be an appeal, and the whole matter would have to be tried over again in the House of Lords just as it was now. Where was the gain, then, after all, either as to expense or public scandal in their high-pressure legislation? The preliminary trial in the new Court would be equivalent to the present proceedings before the Ecclesiastical Court and the trial for crim. con., and the appeal would answer to the present proceedings before the House of Lords, just as it was now. So much for litigated cases. Then as to the security against collusion and connivance, there was absolutely less under the present system. If the parties wanted to collude, all they had to do was not to sue for damages. Under the present system there must be three trials, first the action for crim. con., then the torture of the Ecclesiastical Court, and lastly the investigation in the House of Lords, so that it was, in his opinion, quite impossible that collusion should escape detection, a result which would not be attained with equal certainty by the single Court established by this Bill. These were some of the blessings and the disadvantages which would arise from the present measure, and he thought he had shown that those who had discussed it were fully justified in adopting that course. [Cries of "Hear!" in which Sir GEORGE GREY took part.] It was all very well for the right hon. Gentleman now to say "Hear, hear!" but he must not forget how the noble Viscount had, more than once, turned the fire-engine of his wrath upon those who raised that discussion. Considering that the great portion of the changes which had been made had been adopted by the Government, more mercy might have been shown to those who discussed the Bill in all its provisions. He should not, however, on that account alone have thought it necessary to make these observations; he did it for the graver and more important reason that he thought that many of these changes had not been fully considered, and that if more time had been allowed a better Bill would have been produced. In addition to the defects which he had pointed out, and which he thought more mature consideration might have removed, he thought that the clergy ought to have had more time to examine the Bill, as it affected their consciences and the discharge of their duties. In his opinion, if the Session was to be prolonged, their time would have been much better occupied in making the Savings Bank Bill—a measure which would have affected thousands and hundreds of thousands of persons—a good measure, than in amending this Bill, which would apply to only an infinitesimal part of the population, and which was even now so imperfect that the changes made by it must be either accepted or rejected wholesale, and it would reflect no credit either upon the Government or the Legislature.


I should certainly wish not to depart from the tone and spirit in which the more recent discussions on this Bill have been conducted, and which has so happily contrasted with the spirit evinced in the earlier discussions in Committee, and I am bound to say that the right hon. Gentleman has uttered no word inconsistent with that spirit. I think the House is much indebted to him for the speech which he has addressed to us, because it affords the most conclusive answer to the statement made by him on the 20th of July, that there was not time to discuss the details of the measure during the present Session. On that occasion I stated that the Government were of opinion that there was still time for such discussion, and I think that the number of hours which have been devoted to the consideration of this Bill, the number of Amendments of more or less importance—certainly not all of the consequence which the right hon. Gentleman has attributed to them—which have been made in it, and the spirit in which suggestions from both sides of the House have been received by the Government, show that this Bill has been discussed in a manner which is creditable to this House, and that it has received that amount of attention which its importance deserves. The right hon. Gentleman seems to think that this Bill was presented as a perfect measure which this House must accept or reject exactly as it came from the House of Lords, and that the Government intimated that no Amendments were to be made in it. So far was that from being the case, however, that in the speech which I addressed to the House upon the second reading of the Bill, while I stated that its principle was an alteration in the tribunal by which questions of divorce were to be considered, which I thought would be of great importance. There were many details open to consideration. I said that with that and two or three other trifling exceptions this Bill proposed no alterations in the law. It is true that many alterations have been made during the progress of the Bill, and I am happy to find that most of those changes have the concurrence of the right hon. Gentleman; and that, satisfied with the discussions which have taken place, the right hon. Gentlemen opposite who offered conscientious objections to this measure are not disposed to press them further, and that this Bill is likely to be read a third time without a division. The right hon. Gentleman thinks that some advantage might have been gained by the postponement of the Bill for six months, in the prospect of Amendments being hereafter required. That must be the case with regard to all Acts dealing with large and important subjects, because such alterations are suggested by subsequent experience. It is, however, a matter of sincere satisfaction to the Government that the right hon. Gentleman, and those who act with him, are not disposed to offer any opposition to the further progress of the Bill, because we felt that we should have incurred a great responsibility if, after the attempts which had been made to pass such a measure, and after this Bill had received the careful attention of the House of Lords, we had postponed its consideration till another Session, and thereby indefinitely delayed a great improvement of the law upon a subject affecting the social and domestic happiness of many families in this country. In addition to this it is impossible for any one to have attended to the discussions upon this Bill without feeling that some of them have been of a very painful character. Had we postponed the consideration of this measure we should have occasioned a repetition of statements and observations which were unavoidable in the discussion of a Bill of this nature, but which for obvious reasons it is desirable should be dwelt upon as little as possible. The Government, therefore, thought it important that this measure should receive the consideration of this House, during the present Session of Parliament, and it has been a source of great satisfaction to us that we have received that decided support which has enabled us to bring the Bill to its present stage. I think that the right hon. Gentleman has attached an undue importance to some of the Amendments which have been made in Committee. I will not now go into those Amendments or revive the discussion which we have had in Committee or on the Report, and I will only touch lightly upon what has been said by the right hon. Gentleman. Now, with regard to the formation of the Court, can the alteration which was made in Committee be considered an important Amendment? Why, what are the facts of the case? As the Bill came down to us from the House of Lords it provided that the new Court should consist of the Lord Chancellor, the Chief Justices of the Superior Courts at Westminster, and the Judge Ordinary. Well, it was stated in Committee that from the duties which devolved upon these learned personages it would be difficult to ensure a full court, and the Government, feeling the force of that objection, said that they would take into consideration the question of enlarging the materials for the construction of the Court; and they made a proposal, which met with the general assent of the House, that the senior Puisne Judge of each of the Courts at Westminster should be added to the Court. Now, surely that was not an important alteration. It was only a matter of detail, and we were obliged to the hon. and learned Member for Wallingford (Mr. Malins), for the suggestion. Then, again, with regard to the action for crim. con., I am only repeating the opinions which have been expressed by the highest authorities upon the bench when I say that that action is a scandal and disgrace to the legal system of the country. Now, the important distinction between the law as it at present stands and as it will be if this Bill passes is this:—At present the action for crim. con. is absolutely necessary for procuring a divorce, because the House of Lords will not read a Bill for a divorce unless damages shall have been obtained in an action of that nature, while under this Bill it will no longer be necessary, in order to obtain a divorce, to commence and carry on such an action. Well, then, the right hon. Gentleman says that in abolishing the action for crim. con. we are doing away with one of the securities against collusion. Now, I cannot agree with the right hon. Gentleman. Why, there never was a worse security against collusion than the action for crim. con. It is notorious that in many cases the fact was not contested, and judgment was allowed to go by default, in order that damages might be assessed in the Sheriffs' Court as a necessary preliminary to proceedings in the House of Lords. It is equally notorious, or at least it has been often stated by persons eminently qualified to speak upon the subject, that those damages are often paid with one hand and received back with the other, the only object of the action being to enable a man to comply with the Standing Order of the House of Lords. The action for crim. con., therefore, does not effect the object for which the regulation of the House of Lords was drawn up—namely, to prevent collusion, and I think that we must all rejoice that it will be no longer necessary in order to obtain a divorce that that action should be brought. Under the new system the whole question will be tried in one court, and we shall get rid of the repetition of those disgusting details which at present are necessary to prove the case before three tribunals. That will, I think, be of immense advantage. Well, then, the right hon. Gentleman has touched upon the question of local jurisdiction. Now, that no doubt was forced upon the Government, because we were not at the time prepared to establish a local jurisdiction for judicial separations, and we tested the sense of the Committee upon that question by a division. From that division we found that the opinion of the Committee was in favour of establishing local jurisdiction, and, in accordance with what appeared to be the wish of the Committee, my hon. and learned Friend the Attorney General placed upon the notice paper a proposal with the view of carrying out the opinion which had been expressed by the Committee. Now, the right hon. Gentleman says that that proposal was hastily considered and hastily adopted; but the fact is that the notice of that Amendment was placed upon the paper upon the 10th of August, and the Amendment was not agreed to until the 20th, so that the right hon. Gentleman or any other hon. Member of this House had ample time for offering any suggestion upon the subject. They did not do so, however, and substantially that Amendment was agreed to by the Committee as the best mode of carrying into effect the opinion which they had expressed. I do not think, therefore, that there is any reason for regretting that this Bill has not been postponed in order to give time for the consideration of the question of local jurisdiction. I do not pretend to defend this Bill as a perfect Bill. It would be presumptuous in me to do so, because the details of every important measure must to a certain extent be experimental, and experience may teach us how to improve some of the details of the present Bill; but while I make that admission I wish it to be distinctly understood that I do not imply that the Bill is an instalment of further legislation with respect to the law of divorce. I consider that substantially this Bill settles the question, but it may be necessary to come to Parliament at some future period and propose Amendments to some of its details, but that leaves us in a position very different to that which we should have occupied if we had postponed the measure with the view of beginning the whole subject de novo. With regard to another topic which has been referred to by the right hon. Gentleman, I can only say that I think that it will be admitted on all sides that the Government have shown every disposition, as far as they reasonably could, to consider the conscientious scruples of the clergy; and when I am told by the right hon. Gentleman that we have not gone far enough, let me remind him of what took place upon the second reading of the Bill. Upon that occasion I said that the claims of the clergy had not been fairly stated to the House. It bad been put to the House that the sole claim of the clergy was to be exempted from performing the marriage service over persons who had been divorced upon the ground of adultery, and I said that that was not the question which had been raised in another place, and that I understood the claim of the clergy to go to a far greater length. I understood it to be that, as they believed marriage to be indissoluble, they ought to be exempted from performing it in any case where a marriage had been dissolved, whether of a guilty or innocent person; and I believe that the hon. and learned Member for the University of Cambridge (Mr. Wigram), understood the claim of the clergy in the same way. Well, Sir, on that occasion the right hon. Gentleman got up and expressed astonishment that I should have attributed any such view to the clergy, and that I was not justified in doing so. Well, Sir, I took the right hon. Gentleman to be a better exponent of the views of the clergy than myself, and the Government conceded the question to the extent which the right hon. Gentleman said was asked for, and yet he now turns upon us and says, "you have not done that which the clergy wished you to do." We have, as far as we could, assented to the claim of the clergy, and I trust that the cases will be so few in which conscientious objections may arise, that we shall never hear anything more of these claims. The course which we have adopted is, I think, a course well adapted to remove all causes of complaint, for, while we give to the layman the right of being married in his parish church, we do not compel any clergyman to perform the marriage service over persons who have been divorced upon the ground of their adultery. I will not follow the right hon. Gentleman through the other alterations in the Bill to which he has referred, but I will only say that I am glad to hear the admission, that the Bill and the suggestions which have been made with regard to it have received the careful consideration of the Government, and that we have been willing to accede to Amendments when we have been satisfied, after hearing the arguments in favour of them, that they would be likely to prove of advantage. I myself think that the Amendments which have been made have much improved the Bill; and I trust that it will very soon become law, and remove those scandals which have hitherto shocked the feelings of the right-minded portion of society, and which have been an opprobrium to that branch of our law which relates to marriage and divorce.


said, the right hon. Gentleman who had just spoken was not quite justified in assuming that, because hon. Members upon his (Sir W. Heathcote's) side of the House were not prepared to insist upon a division, they were perfectly satisfied with all the provisions of the Bill as it stood. The fact was that, so far as he himself was concerned—and he might make a similar statement on behalf of many of his hon. Friends near him—he was by no means disposed to regard the measure with satisfaction; and if he refrained from calling for a division with respect to it upon that occasion it was simply because he did not wish to put the House, which was reduced to a mere skeleton, to the trouble of going through a ceremony, the result of which—owing to the fact that the greater number of hon. Members present were in some way connected with the Administration—he was well aware must be favourable to the Government. They deserved no other credit from the promoters of the Bill than that of not being anxious to give them more trouble than necessary. Having said thus much in reference to the reasons which induced him to abstain from calling for a division, he might be allowed to observe, with respect to what had fallen from his right hon. Friend the Secretary of State for the Home Department upon the subject of the action for criminal conversation, that his right hon. Friend was not warranted in saying that the operation of the Bill, as it stood, would be to get rid of that scandal. Under the existing law there was one circumstance which protected a man against being subjected to any unkind remark because of his having brought an action of that description, and that circumstance was that the action constituted a necessary preliminary to the obtaining of a divorce. If the Bill before the House were to receive the sanction of the Legislature, however, the husband, in resorting to any proceeding against the adulterer for damages, would take that course voluntarily which now he was compelled to adopt; and how, under these circumstances, the scandal to which his right hon. Friend had alluded would be done away with he, for one, was at a loss to apprehend. In regard to another observation which had fallen from his right hon. Friend, to the effect that Members upon his (Sir W. Heathcote's) side of the House had acquiesced in the suggestion of the hon. and learned Gentleman the Attorney General in connection with the subject of local jurisdiction, he could only say that if they had not commented upon it more freely than they had done, it was because it was impossible, sitting as they had been so continuously, morning and night, to consider, as it ought to have been considered, a clause so important as that in which the suggestion of the hon. and learned Gentleman had been embodied. There was also another provision of the Bill—that which related to the clergy—to which he was anxious briefly to advert. From the operation of that provision, he, for one, did not expect those happy results which his right hon. Friend seemed to anticipate. He was of opinion that the concession which had been made to the conscientious scruples of the clergy had not been conceived in a proper spirit. It had been clogged by a very objectionable condition, and, while it was not his intention at that stage of the Bill to re-enter upon the discussion of its principle, he could not refrain from observing that marriage, which was in almost all countries a civil contract, was a ceremonial which in this country received in addition, in almost every case, a religious sanction, and that while he did not dispute the right of the State to say, "those parties are to be considered as unmarried," he felt bound to protest against its stepping in and telling the members of any religious community, "You must consider that religious sanction which you deem to be necessary as destroyed by our civil proceeding, and give a religious sanction to a new union, although you do not think the old one has been severed." To adopt that course was to act in a spirit which was not, he must contend, in accordance with the principles of religious toleration. The exemption ought to have been extended to all clergymen whatever their views, and irrespective of the guilt of the parties. The question did not turn on their guilt or innocence, but on the opinion of the clergy as to a religious duty; and the Bill did not remove the difficulty. It was clear, therefore, that they had not got at the end of these discussions, and that questions would in the future be re-opened which otherwise would have slumbered. He would not hastily commit himself to what he would do in another Session of Parliament; but he thought it was probable that some hon. Member or other would apply his mind to the state of the law which would grow out of the Bill, with the view of seeing by what mode more freedom of action could be given to the Church. The expectations which the right hon. Gentleman entertained as to the contentment to be produced by this ill-advised and ill-digested measure would be grievously disappointed. It was fraught with great social evils, and would tend to increase these offences to a most frightful extent; and viewing it in every aspect he conceived it would be attended with great danger and difficulty to the country.


said, it could not be expected that this Bill would be regarded with favour by hon. Gentlemen opposite, but that it was some consolation to think that, so far as it went, it was a measure, notwithstanding the difficulty of dealing with its very complicated details, which was calculated to give considerable satisfaction to hon. Members on his side of the House and to the country. He was glad that the Government had not pertinaciously adhered to the Bill as it came down from the other House, because he felt that elsewhere the interests of the poorer classes had not received the consideration to which they were entitled, and which they would expect to receive from this branch of the Legislature. He rejoiced to find that clauses had been introduced which gave to every portion of the community legal sanction for a position hitherto the subject of imperfect private arrangements, and which protected wives in the pitiful condition in which they were placed when their husbands failed in their duty, and did not respect the responsibility which they had undertaken. He was afraid that many hon. Members had not brought their minds to the full conviction that facility to dissolve marriage was quite as advantageous for the poorer as for the higher classes. There was a passage in the blue-book which explained the reason of the Scotch being more moral than the English—that in Scotland the law of divorce was temperately administered according to the precepts of the Gospel, while in England there was no relief for the poor man, no punishment for his guilty wife, in consequence of which the husband submitted to his fate, found a new companion, and often committed bigamy. A friend of his, a large employer of labour, to whom complaint was made of a workman having been guilty of that offence, inquired more particularly into the morals of the community, and was astonished to find that, not being rich enough to go to the House of Lords, the poor took the law into their own hands, and ceased to regard bigamy as an offence even against the law of propriety. He gave a remarkable reason for the result—namely, that it was not so much for the satisfaction of the man as of the woman that bigamy was frequently committed, as she was enabled whenever there was occasion to fulfil the conditions of charitable institutions, to produce her marriage lines, and she considered that if she obtained the sanction of the Church she was duly married, and it was no affair of hers that her husband was not able to obtain a divorce from his first wife. He regretted that the provisions which had been introduced to facilitate separation between the poor were not extended so as to afford equal facilities for dissolution of marriage, and he hoped the noble Lord would use his influence to have the rules, under the powers given to the Judges, so framed as to enable suitors to avail themselves of the Act by the most cheap and simple procedure possible. He doubted whether it could be effected to the same extent as if clauses had been introduced, but he thought it important to have such a code of procedure as would enable the largest possible number of persons to avail themselves of the door now open for obtaining the dissolution of marriage. Judging by the returns of income-tax, there could not be more than 30,000 families in a position to avail themselves of the present state of the law, and when they considered the small proportion that number must bear to the whole population they would easily understand why the divorces in the House of Lords had not exceeded six a year. The criticism that the Bill did not apply to India was almost ridiculous. The title of the Bill declared that it was intended to alter the law of divorce in England and Wales, and it seemed to him naturally to follow that it was not intended to extend the Bill to Ireland or India, or any other part of Her Majesty's dominions. Though it might be said to be a great boon, this must be regarded as only the first step. [Lord J. MANNERS: Hear, hear!] They were proceeding to legislate upon this as upon many other matters; first making a law applicable to England, and then, if it worked well, it could be made applicable to Ireland and other parts of the empire. It was quite obvious that it would not have been very wise or expedient to make it applicable at once to every part of Her Majesty's dominions; nor could it be so extended whilst it only dealt with the Ecclesiastical Courts of England. When a similar Bill was brought in for Ireland, it would, no doubt, deal with the Ecclesiastical Courts of that country. The Government had very wisely adopted the same course with respect to this Bill as with respect to the Probates Bill, which was of precisely an analogous character; and considering the discussion which had arisen from hon. Gentlemen representing places in England, it would have been scarcely desirable to import the much larger amount of discussion which would have resulted from the Members for Ireland thinking it their duty to address the House. If the Bill conferred the advantages which those who strenuously supported it hoped it would, Irish Members in a future Session might be satisfied with the experience gained, rather than reproduce the speculative debates which, upon this subject, had occupied so much time. With respect to such of the Colonies as enjoyed the advantages of representative Government, the question must be left to be dealt with by their local legislatures. With regard to the action of crim. con., there was no doubt that it often exercised a deterring influence, and all its objectionable features, and the scandal which arose from it were, in his opinion, removed by the substitution which had been made for it, because it was no longer an action of the husband for his own advantage, but an action against the delinquent, the penalty which he was to pay to be appropriated at the discretion of the Judge. He could not conceive how the clergy could be dissatisfied with the provision which affected them, because it respected their conscientious scruples, and they were not entitled to ask more. He did not think that the time which had been spent upon the Bill had been unprofitably employed. The result was, upon the whole satisfactory, and, although it might be necessary to alter some of the details of the Bill in another Session, especially to give further facilities to the great mass of the people to enable them to obtain the full benefit of its provisions, yet he was convinced it would in the end place the law of marriage and divorce upon a sure and proper foundation, calculated to promote the real happiness of the people.


said, he wished to explain that when, upon the Second Reading, he referred to the wishes of the clergy, he confined his remarks to the statements contained in the printed memorial.


said, he was anxious to express his deep sense of the eminent services rendered to the House during these debates by the right hon. Gentleman the Member for Oxfordshire Mr. Henley). If it had not been for his perseverance, ability, firmness, and moderation, the Bill would not have been so well guarded as it appeared to be now. There was too much reason to fear that the advantages to be derived from the measure would be counterbalanced by its evils; the House was none the less deeply indebted to the right hon. Gentleman for the great sagacity and legal acumen which had enabled him, while leading a minority at the close of a protracted Session, by pure force of reasoning, to introduce important alterations and Amendments. The legal Members of the House were also entitled to thanks of the Community for the manner in which they had lent their valuable aid in removing some of the objectionable portions of the measure. It was to be regretted that the Government had qualified their concession to the clergy by that unhappy provision with respect to the use of the parish church—a provision which would create a great deal of discontent among the clergy, and which was directly contrary to the constitution of the Church re-established at the Reformation. According to that constitution each parish was a Church in itself, the constitution of the Church was federal. He feared that the infraction of that principle, which the Bill established, would prove deeply inimical to the freedom of the Church. The measure as at first introduced, was a most immature one, but he admitted that it had been improved by the untiring exertions of hon. Friends on his side of the House. If undue warmth had been exhibited during a portion of the discussion, allowance ought to be made for the difficulties of a minority, and on account of the character of the measure, which, as introduced to the House, was opposed to the feelings of a large section of its Members, and he believed to those of a large mass of the people out of doors.


said, he wished before the question was put to the House, to enter a last protest against the principle on which the measure was founded, many of the provisions it contained, and the manner in which it had been submitted—he could not say to the consideration, but to the acceptance of the House. He objected to the principle of the Bill, inasmuch as it imported for the first time into the statute law of England the dissolubility of marriage by human laws, gave a fresh sanction to the inequality of the sexes in the eye of the law, and not only encouraged the idea that adultery was a venial offence to be condoned by the payment of a pecuniary fine, but actually authorized the notion that it was almost a virtue to be rewarded at the expense of the settled ecclesiastical law, custom, and usage of the country. He objected to many of the provisions of the Bill, inasmuch as they failed to carry out the two leading principles for the sake of which the measure had been recommended to the favourable consideration of the House, because, as far as Ireland, India, and the Colonies were concerned, those who wished to be divorced must still have recourse to the Legislature for special Acts, and because the action of crim. con. had been abolished not in reality but in name merely. He objected to the Bill because it broke up the old settled ecclesiastical polity of the country, and because in the thinnest of Houses, by a bare majority of Members independent of the Government, a provision had been inserted giving encouragement to the idea that, in the opinion of the Legislature, adultery was so respectable an offence, if an offence at all, that the rights of conscience must be violated in order to save the delicate susceptibilities of adulterers and adultresses. He objected further to the mode and manner in which the Bill, so anomalous and inconsistent in its provisions and so objectionable in its principle, had been forced through a jaded House of Commons. The provision which violated the ecclesiastical polity of the country, and worked a complete revolution in the relations between Church and State, was carried by a majority numbering less than one-eighth of the whole assembled House, and of that one-eighth nearly a half consisted of Members of the Government. He maintained, therefore, that the manner in which the Bill had been forced through the House was in itself a source of deep regret to all who wished grave, delicate, and important questions to be fairly and deliberately discussed. He would make no reference to anything of a personal nature which might have occurred during these debates. They were all liable to err in that respect, and no one could be more conscious than himself that in these matters. Veniam petimusque damusque vicissim. He could not, however, permit the present opportunity to pass without uttering his protest against the conduct of business by the noble Lord at the head of the Government, under which they were all suffering and against which they had all a right to complain. He did not remember to have heard, during the time he had occupied a scat in that House, from gentlemen of mark and weight, and unconnected with the political party to which he himself belonged, such complaints against the conduct of public business as he had heard within the last three years against the conduct of business by the noble Viscount. No such complaints were made against the conduct of business by the late Sir Robert Peel, the noble Lord the Member for the City of London (Lord John Russell), or the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli). It should not not be forgotten that the noble Viscount was not merely the leader of a great political party and the head of Her Majesty's Government, but that by his position he was emphatically the leader and conductor of the debates and proceedings in that House. It was therefore a matter of public concern that every hon. Member, if he saw in the conduct of business elements which were fatal to the due consideration of important public measures, and which tended to narrow and impair the freedom of discussion, should make his opinion known. For his own part, he could not refrain from giving utterance to his opinion that the way in which this Bill had been forced through, at a time when it was physically and morally impossible for its great principles and its numerous and important details to be fairly and fully discussed, had a tendency to shake that confidence in the conduct of public business by the noble Viscount which it was of the utmost importance should be entertained by every section in that House. He made these observations with regret and pain, but he made them because he thought it was a solemn duty that those who remembered how important debates in stormy and tumultuous times had heretofore been conducted, and how measures of not greater interest than the present had been submitted to the consideration of the House by former leaders, should express their opinion upon the course pursued by the noble Viscount. His hon. Friend the Member for Oxford University (Sir William Heathcote) had already given an adequate reply to the observation of the Home Secretary, that when this Bill received the Royal assent it would settle and conclude all the important questions with which it dealt. Let not the right hon. Baronet or the noble Viscount believe that those great questions would be settled by this anomalous and inconsistent measure, but let them be prepared to see that important question which affected the consciences of the clergy re-opened in another Session, and let them then endeavour to conclude it upon a basis which should be at once just and consistent. The settlement, as it was called, which was now arrived at could not be regarded as a settlement based upon reason or justice, and when he reflected that it was agreed to in a House numbering some hundred Members, and carried by a majority,—if there was a majority—the barest that could be imagined, of Gentlemen unconnected with the Government—considering, likewise, the excitement which it had created, and the direct violation which it involved of the settled law of the country—he thought that everybody must expect the question to be reopened in another Session. He took leave of this ill-omened, this anomalous, this inconsistent Bill, with again raising what he knew was a vain, but what was, at any rate, a most earnest and sincere protest against it, on account of the principles which it embodied, on account of the provisions by which those principles were to be carried into operation, and on account of the mode and manner in which it had been forced through a jaded and reluctant House of Commons.


Sir, I shall detain the House for but a very few minutes while I make sonic observations on the course which has been adopted with regard to this Bill. I must say, then, that I think the course which hon. Gentlemen opposite intend to take upon the present occasion is creditable to themselves and respectful to the House. The matter has been fully discussed, and while they maintain their own opinions and have taken advantage of this opportunity to repeat many of their arguments which, in its progress, they have used against the Bill, they feel that it is neither necessary nor desirable for them to take the more formal step of dividing the House. The noble Lord who has just sat down began with a bill of indictment against me, saying that the manner in which, as the leader of the House, I have conducted public business has called down upon me not only his censure but also that of all the most experienced and respectable Members of the House. I waited with some curiosity and considerable anxiety for the explanation which the noble Lord proposed to make of this very criminal proceeding on my part, dating, as the noble Lord stated, from the moment I occupied the position which I have now the honour to hold; but greatly to my relief, and somewhat to my surprise, I found that the whole of his charge reduced itself to the course pursued by the Government with regard to this particular Bill. The noble Lord thinks that the Government have pressed the Bill with undue and improper haste. Now, with respect to that assertion, as well as to some observations made by other hon. Gentlemen on the same side of the House, I beg leave to say that neither I nor any of my colleagues ever held the doctrine that this Bill was to be hurried through the House without full discussion, or that the House ought to adopt it just as it came down from the House of Lords without amendment or alteration. We have never said anything approaching to such a declaration. What was the state of the case? When this Bill came down from the House of Lords the town ran with declarations and announcements that those who were opposed to it would never allow it to pass, that by prolonging the discussion day after day, and night after night, they would render it impossible for us to carry the Bill through this Session. I am one who do not like to quote private or casual conversations which may pass between hon. Members of this House, but perhaps I may be allowed to state that one prominent opposer of the Bill said to me on one occasion, "You never shall pass this Bill." I replied, "Won't we!" Again, the right hon. Gentleman the Member for the University of Oxford (Mr. Gladstone) said something about the Greek Kalends, which he afterwards explained, but which undoubtedly at the moment I thought had more reference to the passing of this Bill than to the Motion of the right hon. Baronet the Member for Droitwich (Sir John Pakington) on the subject of education. What was the language we held with reference to those threats of impeding and thwarting the Bill, not by argument and fair discussion, but by seizing every pretext for delay? My answer was, "We are able and ready to discuss the measure as long as anybody chooses to sit here; we will sit till September if it be necessary; we are in no hurry, and will with pleasure hear anything that any hon. Member has to say in favour of any alteration he may have to propose in the Bill." Therefore it is an unjust and unfounded accusation which the noble Lord brings against myself and my colleagues, when he says that we are open to the censure of departing from the ordinary and proper practice which is usually adopted with respect to passing measures of this description. I maintain the opinion which I have always entertained, that this measure is a great improvement in the state of the law with regard to divorce. When we were asked what the intentions of the Government were regarding this question, our reply was that our intentions were in the Bill; but it did not at all follow that those intentions might not be improved by argument and discussion. No set of men can so frame a measure as that the first draught of it shall be perfect. All measures introduced to Parliament are necessarily liable to improvement by discussion, and the intention of those who introduce them must always be to listen favourably to the objections and opinions which they may hear urged in debate. There are two or three points in the Bill now before the House that have been particularly adverted to. The principal one regards the exemption given to clergymen who may object to celebrate the remarriage of persons whose marriage has been dissolved by reason of their own offence. The noble Lord opposite (Lord John Manners) argues that that exemption is not sufficient, and I understand the hon. Baronet the Member for the University of Oxford (Sir William Heathcote) to say that we did not go far enough because we have not admitted the objection founded on the indissolubility of marriage. Now, I can truly say I never gave a more reluctant consent to anything than I did to the concession made in this matter. I did it solely in deference to the feelings of a large body of clergymen, whose feelings, even though wrong, were in my opinion entitled to respect. With regard to the question of the indissolubility of marriage, it was impossible for the Government to admit that plea. I deny that there is anything in the teaching of the Church of England to justify the opinion that marriage is indissoluble. If we look to the 25th article of the Church, which every clergyman is bound to subscribe, we find that the contrary is distinctly affirmed. It is there affirmed that matrimony is a state of life allowed in the Scriptures, but having nothing in common with the nature of a sacrament "for that they have not any visible sign or ceremony ordained of God." It is therefore impossible that any man who subscribes to this article can maintain that marriage, is on religious grounds, a tie that cannot be dissolved. It was simply, then, on the ground of their conscientious objection to marry persons who had been guilty of a great moral offence, that I consented to the concession on behalf of the clergy. I concur in every argument which my hon. and learned Friend the Attorney General used against the principle on which their objection is founded. I trust the clergy will understand the views and feelings that have induced the Government to agree to that concession, and that they will not look upon it as an admission of a principle which, if carried into practice, would, I fear, be highly detrimental to the interests of the Church of England. The Church of England has stood hitherto on ground very different in some respects from that of Churches in other countries. It has never assumed to itself the right of being an ecclesiastical inquisition. The clergymen of that Church have contented themselves with being the guides, the instructors, and the friends of the laity. They have set an example of purity of life which has recommended to the laity the precepts that have come from their lips; but if they should think that this concession entitles them to assume to themselves that authoritative interference in the affairs of private life which is too frequently assumed by the clergymen of other countries, I am afraid they will do the greatest possible injury to the Church by creating in the minds of the laity feelings towards that Church very different from those which hitherto have prevailed. A few years ago I was talking to a very distinguished person belonging to one of the central States of Italy, and I was urging upon him the absurdity and wrongfulness of the interference of Government to prevent converts from the Catholic to the Protestant faith, when his reply was that if they did not make it a punishable offence the whole people would become Protestants. "What!" I said, "do you mean to say that their religious opinions hang so loosely about them, and that their minds are so predisposed to Protestantism, that, they would immediately, if let alone, alter their religion?" "Oh," said he, "you misunderstand me; it is not from religious conviction that they would become Protestants, but they would become Protestants to withdraw themselves from the tyranny and oppression of the priests." I say, then, that if the clergy of the Church of England were to depart from that course they have hitherto pursued, they would inspire in the minds of the laity very different feelings from those which happily now prevail. Coming to the provisions of the Bill, I think it is unnecessary to enter any further into a consideration of those provisions. I think the Bill has been improved in its progress through this House, and I trust that, when it goes back to the other House of Parliament, those learned persons who have already discussed it at great length will see reason to adopt the Amendments that have been introduced, many of which have been made with the full consent even of those who opposed the Bill on principle. It cannot be said that this Bill has been discussed by insufficient numbers. The first Motion made was for delaying the Bill for a month, and that was done in a House of 347 Members—a very considerable and sufficient number of Members to discuss a measure of any importance whatever; and in every subsequent stage of the Bill the attendance has been considerable. This I may also add, that on every division those who affirmed the principle of the Bill were at least two to one. I should hardly have thought it necessary to make these remarks had I not wished to take this opportunity, perhaps the last that may present itself, to direct the attention of the House, and, through the House, the attention of the country, to the course that this House of Commons has pursued since the last general election, because I think that course has been highly creditable to Parliament, and calculated to inspire the country with confidence in those who have been sent here by the various constituencies to represent them. First of all I should say that which is well known, that though the present House of Commons was elected in a period of great political excitement, and when questions were discussed that greatly agitated the public mind, there never was a general election in regard to which there were so few acts of irregularity, none in which so few cases either of bribery or intimidation were alleged or proved. Therefore, I think the House may justly feel that in its constitution it has a right to stand well in public favour. Then as regards the Session, it has been very short—but three months; but I believe there never was a Session in which the Members of the House devoted themselves so actively, so perseveringly, and so successfully to the consideration of the business before it. The House has transacted a large amount of private business, involving close personal attendance on the part of hon. Members, and it has disposed of all the election petitions brought before it, many of them embracing questions of great difficulty and delicacy. When first these election petitions were presented, many of the Members thought it would be impossible to get through them during the present Session; but, nevertheless, they have been all disposed of, though they and the private business of the House have made necessary many morning sittings in Committee. Then in regard to public business, this House has never grudged its time and attention to the Measures proposed by the Government or by private Members. We have often sat to a late hour in the morning, and frequently we have also passed several hours here in the forenoon and afternoon, and I must say the patience, with which the discussions have been listened to, has been exceedingly creditable to the Members of this House. These are things that perhaps do not strike the public out of doors as they may strike us, but I am sure the House will excuse me for having taken this opportunity of drawing attention to its own good conduct, and of having in this way recorded before the country my belief that the Members sent to represent them in Parliament have not been inefficient representatives, and that they have not been neglectful of the duties intrusted to them by their constituents.

Bill read 3°, and passed.