§ Order for Committee read.
§ House in Committee.
§ Clause 1 agreed to.
§ Clause 2,
§ MR. EDWIN JAMESsaid, he would move to insert after the words "Judge Ordinary alone," the following:—
Providing always, that such Court does and shall hold a sitting for the disposal of the business of the said Court for not less than two consecutive days, at the least, once in every fortnight from the 2nd of November to the 10th of August in every year, except during the periods allotted for the attendance of the Judges upon their circuits, or for the ordinary vacations.
THE ATTORNEY GENERALsaid, he concurred in the object of the hon. Mover of the proviso, but he doubted whether fixing a minimum would not be to impair rather than increase the stringency of the clause. By such a course they might ensure the attendance of the Judges would not go beyond the minimum fixed.
§ Amendment withdrawn.
§ Clause agreed to, as was alse Clause 3.
§ Clause 4. (Extending the operation of the Act to Ireland.)
1368THE ATTORNEY GENERALsaid, the clause had been inserted by the Lords, and he moved that it be expunged.
§ MR. DARBY GRIFFITHsaid, he objected to legislation which did not apply to the whole empire.
MR. SERJEANT DEASYsaid, that if this clause of the Bill was agreed to, extending as it did the operation of the Act to Ireland, it would be most objectionable, not only to the Roman Catholic but also to the Protestant portion of the population of that country. Another objection to the clause was, that it would be introducing into Ireland the operation of a foreign tribunal, as it would enable parties contracting a marriage in Ireland—where the marriage contract was indissoluble, by transferring their suit to London, to obtain a divorce. The clause, moreover, would be an interference with the regularly constituted tribunals in Ireland.
§ MR. BOWYERsaid, he trusted the Government would throw aside all thoughts of extending the Divorce Court to Ireland, as such legislation would be entirely contrary to the feelings of the people of that country.
§ MR. VINCENT SCULLYsaid, that the feelings of the women ought to be consulted in this matter as well as those of the men. He did not believe the Divorce Court was in conformity with the wishes of the women of England, and he thought the House ought to retrace their steps and abolish the system altogether.
§ Clause struck out.
§ Clause 5, (Authorising the Judges to hold their sittings in private.)
§ MR. EDWIN JAMESsaid, that clause would establish a dangerous precedent. The Judges in these days were incorrupt and incorruptible; but still it would be unwise to remove them from that salutary influence of public opinion and public responsibility to the operation of which publicity was indispensable. In the trial of Horne Tooke, Lord Ellenborough ordered that no evidence should be published de die in diem, and Mr. Perry, of the Morning Chronicle published notwithstanding, and was committed by the Judge. But even that was a different state of things from a Court sitting in private. Such a principle, however, was wholly alien to the spirit of our law, the only approach to it being the practice adopted by the Court of Chancery in certain exceptional cases of holding sittings in camerâ. That departure from the ordinary rule by no means worked so satis- 1369 factory that they were called upon to give it any greater extension. On the trial of Palmer, Lord Campbell expressed a hope that no remark in the shape of editorial comment should be made till the trial was over, and the press acquiesced, and there were no remarks made that could prejudice the case or influence the jury. There were titled defendants and men of property who would give thousands to have their cases heard with closed doors and to the exclusion of the press. To close the Divorce Court would only be to create a prurient curiosity on the part of the public to know the details of the trials; and there would exist this anomaly—that while that Court was closed the police Courts would still publish their disgusting details. He remembered a Committee up-stairs sitting with closed doors; and what was the result? A garbled account of the proceedings appeared in every newspaper in England. If the Divorce Court were closed, the representatives of the press might be excluded, but the attorneys, the attorneys' clerks, and other persons more or less connected with the proceedings, must he present; and it would be impossible that disgusting details should be shrouded in secrecy. The consequence would be that reports would be published in newspapers without the responsibility secured by the presence of the recognized reporter. Besides, it was better to trust to the good sense of the community, and the good taste of the conductors of the public journals, than to arm our Judges with an arbitrary power like that recently exercised in France in the trial of M. de Montalembert. And, at the very worst, it would be wiser to run the risk of some indecent details creeping out than to shake that general confidence in the administration of justice which was engendered by surrounding our Judges with an atmosphere of publicity.
THE ATTORNEY GENERALsaid, the whole principle of this enactment was publicity; and the question simply was, whether a greater amount of public justice would not he attained by the introduction of the exception to that general rule contained in this clause than without it. The hon. and learned Gentleman seemed to think that the object was to prevent the publication of details. He the (Attorney General) was willing to admit at once that the clause had been framed for the sake of public decency; but when he had explained the reasons for its introduction, he was sure the Committee would per- 1370 ceive that it had been brought forward for the purpose of preventing that denial and refusal of justice which arose in many cases in consequence of the present constitution of the Court. He regretted to say that the court was a place of resort—according to the accounts that were given to him—of characters of the worst description. Crowds congregated there for the purpose of hearing details which could only give gratification to depraved and diseased minds. That very court, so attended, was the place to which women suffering under the most cruel wrongs were compelled to have recourse for redress. One might well imagine a lady of sensitive feelings, and under the distressing necessity of seeking the redress of her grievous wrongs, shrinking from having recourse to a tribunal where she would have to relate the story of her husband's cruelty in the presence of a jeering, laughing, and prurient mob, eager to catch at every indecent particular. It was such a painful accompaniment to her appeal to the open Court as that which he had but too feebly described which deterred many injured and deserving persons from applying for its aid, and which therefore operated in certain cases as a practical denial of justice. He had himself heard of cases in which persons, for the purpose of compelling a compromise, or accomplishing some particular end, had refused to assent to a private hearing; and if the counsel had not manifested a better spirit, in many instances the greatest injury would have been inflicted upon innocent individuals in consequence of the necessity for this publicity. Moreover, in some instances, the greatest profligacy—nay, crime—might have to be brought forward in the Court, for the purpose of enabling the parties to a marriage to obtain a divorce, and the publication of those details might involve the most cruel and lifelong injury not only to the parties to the suit, but their innocent and unhappy children. Surely, then, the Committee would hardly say there could by any possibility be the slightest harm in such cases as that of arming the Judge with an authority to determine whether the case should be heard in public or not. It was not that the case was heard in private. There were present in court, the bar, solicitors, and a jury—a sufficient number of persons to prevent the occurrence of those evils the hon. and learned Gentleman seemed to dread. He freely admitted the necessity of publicity of the proceedings of the courts of justice, and he did not 1371 mean to ask for any authority that would in the slightest degree detract from that rule, except it were necessary for the attainment of public justice. But in a great number of the cases that came before this Court, it was impossible to hope the sufferers could ask or obtain justice if they were compelled to seek it in the manner in which only they could now do so. This clause had been suggested by the learned Judge who presided in the court as the result of his experience of its working. The Committee were aware that for a length of time the public had been complaining of the evil influence of the publication of the evidence taken in the Court. He did not mean to put the necessity of the clause entirely on that ground. He himself was much more affected by the fact that in consequence of the present system there was, in many cases, a perfect denial or refusal of justice; and that persons would not seek it if they had to go through the ordeal they had at present to pass. This power was to be entrusted to the discretion of the Judge, whose duty was merely to preside when a jury was present to give their verdict upon the evidence sworn to before them. He thought, therefore, the interests of humanity, the interests of justice, the interests of public decency, all required that in a tribunal of this kind there should be an exception to the general rule, such as that embodied in this clause. He might mention one case in which, on an accusation against the husband, the interests of the children were involved to such an extent that, had the charge been made in public, all their prospects in life would have been for ever blasted. In that case the Judge, with consent, exercised the power of hearing the case in private. All this clause asked was to give that discretionary power to the Judge wherever he thought the interests of justice demanded. He had not the slightest doubt it would be well and wisely exercised, and that it would tend greatly to enhance the usefulness of the Court; and he hoped, therefore, the Committee would accept the clause.
§ MR. AYRTONsaid, the learned Attorney General had made out a very ingenious case of special hardship arising out of the existing practice; but there was no principle of law from the inflexible operation of which the wit or the imagination of man could not conjure up some small modicum of inconvenience to individuals. They were asked to enter upon a course of 1372 legislation, which, if it were sound, could not be confined to this particular tribunal, but must be extended to the whole administration of justice in the country. For if the principle of trial with closed doors was right in the case of the Divorce Court, it would be also right in the rest of the civil and even in the Criminal Courts, whenever evidence of an objectionable nature was to be adduced. The hon. and learned Gentleman said that persons attended the Divorce Court to hear the disclosures merely for amusement, but at present the Judges of our different tribunals could order all females and young persons out of court when cases unfit for them to hear came on, so that only male adults remained; and could it be supposed that many of these were of the depraved frame of mind which had been suggested? Would the Committee then modify a great principle of law to meet a small modicum of inconvenience. The clause was really to enable the Judge to exercise a censorship over the public press, in so far as they chose to report the proceedings of the court. A century and a half ago Parliament and the nation repudiated the idea of a censorship over the public press; and were they prepared on nearly the last day of the Session to reverse that policy, and to take the first step in the opposite direction? He thought that the correction of any abuse in connection with the press might safely be left to the general sense of the community, and of those who conducted the public journals. As far as his own observation extended he saw nothing in the conduct of the public press with regard to the Divorce Court which led him to wish for an alteration of the law; but at any rate, before they took the step proposed, they ought to have a strong body of evidence to show that the press had forgotten its duty to society, and systematically abused the opportunities it possessed for publishing reports. But he saw no trace of misconduct on the part of the public journals; on the contrary, he thought that with regard to all trials of this sort they conducted their publications with great judgment, with great tact, and with great advantage to the community. And what was the result of that publicity? No doubt in particular cases it operated very inconveniently to suitors; but he arrived at a totally different conclusion from that of the hon. and learned Gentleman as to its general effect. The Court undertook to investigate chiefly the conduct of hus-bauds towards their wives, and he could 1373 conceive no more salutary influence than this very publicity must exert when held in terrorem over a tyrannical husband. The conviction that his cruelty, though perpetrated in domestic privacy, might be dragged to light, and made to bring upon him the scorn and reprobation of all rightminded men must have a beneficial effect in promoting the very object for which that Court was instituted, which was not to encourage applications for divorce, but to repress the marital misconduct out of which those applications arose. On the other hand, he thought that secrecy would tend to encourage domestic vice and domestic immorality, and would be of no advantage to the court, because persons would know they could go there without incurring the penalty of having their misconduct exposed to the society in which they lived. Such a clause as the present one might naturally be inserted in the Bill of the House of Lords, because there were certain classes of people who did not like this publicity. He thought that it was a clause which the House of Commons, being the guardian of the morality of the people at large, and caring nothing about the distinction between particular classes, would insist upon striking out of the Bill, and he trusted that the Attorney General would give way to the sense of the country on the subject, and withdraw it from the Bill.
§ MR. BAILLIE COCHRANEsaid, he could not but express his regret that the hon. Member for the Tower Hamlets should have thought fit to conclude his otherwise excellent speech by an unbecoming attack on "another place." The hon. Gentleman had characterized the upper classes as less moral than those below them.
§ MR. HADFIELDsaid, it was impossible that justice could be satisfactorily administered in this country with closed doors, as the strength of our laws was in public opinion, which supported the law. The effect of the proposed clause would be to screen the powerful and rich while it exposed the failings of the poor. There were persons in this country whose names could influence the bench in granting secrecy which a poor man could not obtain. ["Oh, oh!"] He would remind the hon. Gentleman who said oh, that when a man went into a Court of Law in this country, he was on an equality with any man of any class. He hoped the House of Commons would prevent such an enactment as this.
§ MR. BRADYsaid, the hon. and learned Attorney General had not convinced him 1374 that it was necessary to pass the clause. He wished to ask him where the line of demarcation was to be drawn between the persons who should and who should not have extended to them the privilege of secrecy. If they sanctioned the proposed violation of the law they would give rise to great discontent in the country, and at the same time lay the foundation of a system which must ultimately be extended to other Courts, and would have the effect of lowering the standard of justice.
MR. H. BERKELEYsaid, he had often heard a word misapplied in that House and elsewhere—namely, the word un-English. That word, he thought, was peculiarly applicable to this clause, which was opposed to all the principles of English law. He wished to ask the Attorney General how the Judge was to be informed when a case was of such a nature as that it ought to be heard with closed doors or not, unless he were privately informed of the fact, or deferred to the station of the parties. That objection alone was fatal to the clause.
§ MR. BOWYERsaid, he was one of those who strongly opposed the Divorce Bill, on the ground that it would be most injurious to the morality of the country. Now, after it had been in operation a short time, the Attorney General was obliged to come forward, in the name of the Government, and propose the introduction of an entirely new principle in the English law, namely, enabling a Judge to shut up his court and proceed secretly. The fact was that the proceedings in the Divorce Court had become so scandalous, and were so injurious to the public morality, that the hon. and learned Gentleman felt bound to introduce this clause.
THE ATTORNEY GENERALsaid, it must not be supposed that this clause was pointed against the public press. No such thing. It only pointed to the prevention of that denial of justice which the present state of things caused, which he had endeavoured to point out. The hon. Member for Bristol was mistaken in supposing that the Judge could receive information privately. [Mr. BERKELEY: I did not say so.] The only communication made to him would be by counsel of the nature of the evidence, and on that statement the Judge could exercise his discretion on his own responsibility. The clause was the result of the experience of the Judge Ordinary, and at his suggestion it had been inserted in the Bill. If it were passed into law, 1375 cases would not be tried with closed doors in reality, but before the bar, and in the presence of the jury, solicitors, and parties. He was glad the introduction of this clause had been discussed, but he was sorry that some topics had been introduced, and he should have been pleased if the hon. Member for the Tower Hamlets (Mr. Ayrton) had not disfigured his speech by some of the allusions which he had made. He should also have been glad if the hon. Member for Sheffield (Mr. Hadfield) had not said that a distinction would be drawn between rich and poor in such a case. Let the House of Commons decide the question, but not on such grounds. He must give the Committee the trouble of dividing, as he could not withdraw a clause recommended by the Judge for the benefit of the suitors of his court.
§ MR. JOHN LOCKEsaid, there was a discrepancy between the argument of the Attorney General and the wording of the clause. The hon. and learned Gentleman urged it was to spare some females the pain of speaking in an open court, and thus prevent an inconvenience which often resulted in a denial of justice; but the clause gave the Judge the power to close the doors of the court whenever the interests of public decency appeared to him to require it. If the reason given with the clause were to prevail, it was obvious it could not stop at the Divorce Court; for there were many cases tried in other courts where decency appeared to forbid publication.
§ SIR MORTON PETOsaid, he hoped the Attorney General would not press the clause to a division. He had acted in perfect good faith with regard to the suggestion of the Judge of the Divorce Court. It would pain him to have to vote against the hon. and learned Gentleman.
THE ATTORNEY GENERALsaid, that he was in the position of being an advocate for the clause with no one to support him. He agreed with the hon. and learned Member for Southwark, that the clause did not contain words which would carry out the object he had spoken of. The mere words, "preservation of public decency," did not refer to the point to which he had alluded. Under all the circumstances he would bow to the decision of the Committee without putting them to the trouble of a division.
§ Clause struck out.
§ Clause 6 agreed to.
§ Clause 7.
1376§ MR. EDWIN JAMESsaid, he would move that it be omitted. It had been described before by the Attorney General as harmless, and he believed it would prove entirely nugatory. Its object was to provide, that where the Judge suspected collusion or fabrication in a case brought before him, he should have power to refer the petition to the Attorney General, who might examine into the matter and report. Now, he objected to this, that it was merely encouraging indolence in the Judges by transferring to the Attorney General that which the Judge himself had power to do. Whenever the Judge suspected collusion he had power to call the parties before him, and to put them on their oaths. The Attorney General had neither time nor power to do any such thing; and all that he could do would be to hand the case over to some employé, who might call the agents before him, and without putting them on their oaths, ask them whether there was collusion or not. This proceeding would be totally nugatory, except that it would cause additional expense and delay.
THE ATTORNEY GENERALsaid, that the clause should be looked at, not as it stood, but with the power it gave the Court to make rules and regulations for carrying out its provisions. Great difficulty had been felt in cases where a dissolution of marriage was claimed on the ground of adultery, owing to many of these being undefended cases. The petitioner produced only such evidence as he thought proper, and the Court could only know anything about the case from that. It was felt that there was a danger of divorces being obtained on fabricated cases by collusion, even when adultery had not actually occurred. Hence, the proposal that some officer should be appointed to assist the Judge in such cases. The clause was intended to work thus:—Supposing a petition praying for a dissolution of marriage, to which there was no defence or any person offering opposition to the petition, it would be imperative on the Judge to refer it to the Attorney General, and the petitioner would be required to give the Attorney General particulars of the acts relied on by him in support of the allegations of the petition, and the names and residences of all witnesses and persons connected with the case since the alleged adultery was committed. In a great number of such instances, the Attorney General at the first aspect of the case would be able to detect whether it was characterized by good faith 1377 or not. But in others, a species of out-of-doors inquiry would be made by his agents. The Judge could not be properly aided or protected except by the appointment of a person who out of doors should, before the hearing of the petition, make inquiry whether the circumstances alleged by the petitioner were or were not true. This want had been greatly felt in the Divorce Court, and as the suggestion proceeded from that Court it was the result of experience. Many of the practitioners there had owned that collusion was not uncommon, and it was impossible to detect collusion without intrinsic information. In the House of Lords it was found that the communications which were made to judicial persons during the progress of a case tended greatly to elucidate the facts. A similar protection, he believed, would be afforded by this clause, which would frequently prevent the Judge from being imposed upon.
§ MR. MELLORsaid, that no provision was made in the clause for giving the Attorney General power to do that which it had been suggested he ought to do. It did not enable him to hear evidence on oath or to make any other inquiry than the parties chose voluntarily to submit to. Altogether the clause was so crudely framed and seemed so insufficient for the objects desired, that, unless it could be amended, he must vote against it.
§ MR. AYRTONsaid, that he was anxious to observe that the hon. Gentleman opposite (Mr. Baillie Cochrane) seemed to imagine that he had expressed an opinion with regard to peers and other persons of distinction which he did not mean to express. What he meant to say was that peers and other persons of distinction were more sensitive to publicity than other persons. With regard to the clause before the Committee the hon. and learned Member for Marylebone had described it as perfectly harmless but perfectly useless. From the description given by the Attorney General, however, he thought it was hurtful as well as useless; for, if it were adopted, it would be necessary for the future to have, in point of fact, two suits—one before the Attorney General to find out whether there was collusion, and another before the Judge to decide very much the same facts as had been already investigated by the Attorney General. Such a double inquiry, he need hardly say, would add very seriously to the cost of the proceedings. Now, the Attorney General could not institute this inquiry himself; he must ne- 1378 cessarily depute it to some officer, which could equally be done by the Judge. The duty which it was now sought to cast upon the Attorney General could be performed by the Judge, if he applied his mind to it. The Act of Parliament enabled him previous to the hearing of the suit to send for the petitioner and make a searching investigation into the case. When, therefore, the Judge, having exercised this power, found that he was still unable to protect the public, it would be time enough to come to Parliament for fresh powers.
§ Clause struck out.
§
THE ATTORNEY GENERAL moved the insertion of the following clause after Clause 8:—
In any petition presented by a wife praying that her marriage may be dissolved by reason of her husband having been guilty of adultery, coupled with cruelty, or of adultery coupled with desertion, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.
§ Clause agreed to.
§ MR. EDWIN JAMESsaid, he wished to move the insertion of a clause after Clause 6, empowering the Court to inquire into the existence of any ante-nuptial or post-nuptial settlement, in those cases in which a decree of nullity or dissolution of marriage was granted, and to make such order upon it for the benefit of the husband and children as they might think fit. It often happened that a wife had a handsome income settled upon her by her husband at the time of her marriage, and if she were divorced on account of her own adultery, she ought not to be enabled to live with the adulterer upon that income which she had received from the generosity of her husband.
THE ATTORNEY GENERALsaid, he was willing to admit the object of the clause to be a good one, and he should not oppose its introduction into the Bill if the hon. Member for Devizes (Mr. Darby Griffith) would consent not to press the clause of which he had given notice, to the effect that in every case of judicial separation, when the whole of the property which might be the subject of the marriage settlement of the parties might have been settled to the separate use of the wife, it should be lawful for the Court to order such provision by way of alimony to be made to the husband out of the property of the wife, as the Court would, under ordinary circumstances, have given to a wife in a similar case. The principle which the hon. Member had 1379 embodied in those words was no doubt a very laudable one, but then it was a novel principle, and ought not, he thought, to be introduced into a measure which merely sought to amend the procedure of the Court. He should also beg the hon. Member to bear in mind that in every case of judicial separation the possibility of the husband and wife becoming reunited was supposed, and that result might be interfered with if such arrangements as those proposed1 were carried into effect.
§ MR. DARBY GRIFFITHsaid, he had given notice of a clause somewhat different from the one before the Committee, inasmuch as it referred, not to cases of dissolution of marriage, but of judicial separation. It was to enable the Court to make provision for the husband, by way of alimony, out of the property which he had settled upon his wife at the marriage.
§ MR. EDWIN JAMESsaid, he would agree to the words "or a decree of judicial separation" being added to his own clause, with regard to the case of a decree of nullity of marriage.
§ Clause agreed to.
§ MR. CRAWFORDsaid, he wished to move a clause to the effect that a right of appeal to the House of Lords should extend to all sentences and final judgments, or petitions under the Legitimacy Act, 1858.
§ Clause agreed to.
§ The Preamble was then agreed to.
§ House resumed.
§ Bill reported, with Amendments; as amended, considered.
§ Bill read 3°, and passed.