Order read, for resuming Adjourned Debate on Amendment proposed to Question [20th August],
'That the Bill be now read a second time;' and which Amendment was, to leave out the words ' now read a second time,' in order to add the words 'laid aside'
§ Question again proposed, "That the words proposed to be left out stand part of the Question."
§ Debate resumed.
§ Notice taken that the Bill, as brought from the Lords, contained a provision that Her Majesty's Proctor shall be entitled to charge certain costs as part of the expense of his Office; and that, as such expense, by virtue of the Act 20 &c 21 Vict. c. 85, is to be defrayed out of Monies to be provided by Parliament, such provision was an infringement of the Privileges of this House.
§ Whereupon MR. SPEAKER explained, that since 1854 provisions of this character had been admitted in Bills brought from The Lords; but that, as it appeared to him that such a practice was open to serious objections, that it was liable to misconstruction, and that it was calculated to break down the broad line of distinction between the duties, attributes, and powers of the two Houses, he had already intimated that any such provisions would hereafter be objected to by himself, on behalf of the House, and that he should advise the House not to receive them.
§ Mr. SPEAKER
further stated, that this Bill had been brought from The Lords on the 1st day of May last; that the intimation of his opinion had since been attended to, and all similar provisions had been omitted by The Lords from Bills sent to this House; and that, under these circumstances, the House would perhaps not think it necessary to insist upon its Privileges in this particular case.
§ VISCOUNT PALMERSTON
I wish to call the attention of the House to the observations which you, Sir, made on the subject of this Bill, I think on Monday last. I am sure the House must feel 1735 greatly indebted to you for the vigilant attention which you have paid on all occasions to the maintenance of its rights and privileges; and I have no doubt that the House will concur with you, that the 5th Clause of this Bill is an infringement and a violation of rights and privileges which it is essential that we should preserve unimpaired. You then explained, Sir, that this was a practice which had arisen, and been continued for some years past, more with a view, as I imagine, to the mutual convenience of the two Houses than from any deliberate intention on the part of the House of Lords to infringe on the privileges of the Commons, but that, nevertheless, the practice was carried to an extreme in this instance, and that you, therefore, felt it your duty to bring it under the consideration of the House. It seems, however, that you did not confine your watchfulness to this particular Bill, but that, having remarked a practice which appeared to you contrary to the privileges of the House of Commons—namely, the practice of inserting in Bills sent down from the House of Lords money clauses and provisions, so that they appeared as enactments, whereas they ought only to have been suggested for the consideration of this House—having observed this, some six weeks since, you communicated with the House of Lords, and stated that you should feel it your duty to call the attention of this House to the practice, and suggest a course which would effectually prevent its recurrence. In consequence of that communication, the practice to which you referred has been discontinued, and in other Bills which have since come down—for the measure now before us has, from various causes, been in the possession of the House for a considerable time—your suggestions have been attended to, and the forms consistent with our rights and privileges have been duly observed. Under these circumstances, and considering the nature of this Bill, which is designed to improve a highly important court of judicature, I am inclined to think that the House will do well to adopt the recommendations which you suggested in the latter part of your very clear and able remarks—namely, that notwithstanding the informality contained in this Bill, inasmuch as the practice has been observed upon, and the House of Lords have acquiesced in the objection taken, and have abstained from pursuing the same course on recent occasions, we should waive the objection which 1736 might strictly be taken to the measure, and instead of laying it aside, should consent to the second reading. If that is the opinion of the House, I think it will be necessary that a special entry should be made on our Journals, in order to put on record the reasons why, in this case, we have agreed to a Bill containing on the face of it matter which, in a strict enforcement of our rules and rights, we should be bound to reject. Under these circumstances, Sir, I beg to move the second reading of the Bill.
§ SIR JAMES GRAHAM
As an old Member of this House, deeply and sincerely attached to its privileges, which I hold to be indissolubly connected with the rights and liberties of the people, I may perhaps be pardoned if I join my noble Friend in thanking you, Sir, for the clear, deliberate, and admirable opinion pronounced by you from the chair in defence of those undoubted rights and privileges. I must confess that I should be very sorry if an opinion so sound, and at this juncture so necessary, were altogether inoperative; and my first impression, in conformity with the course suggested by the hon. and learned Gentleman (Mr. Hennessy) was that the Bill should be laid aside, and a new measure introduced and advanced at once through the various stages, so that no impediment might he offered to its passing in the present Session. But further deliberation has led me to the same conclusion as that stated by my noble Friend, and I now think with him that, considering the present state of the House, we should be unduly magnifying the step taken by the Lords, that we should be raising a doubt as to our privileges where no doubt ought to exist, and should be pursuing a course hardly consistent with our dignity if we took more serious notice of this matter. I think the course suggested by my noble Friend is by far the most dignified; but I am extremely glad that a special entry is to be made in the Journals. Sir, I do not altogether so much blame the House of Lords for what has happened. We have been somewhat negligent ourselves. For a long portion of the forty-five years I have sat in this House—Bills sent hence to the Lords and from the Lords to this House were engrossed. Any money clause suggested by the other House was afterwards written in black ink, and before the Bill was transmitted to this House the clause so written was struck out by the pen being drawn through it. Subsequently, 1737 printing was substituted for writing; and instead of the clause being written and struck out it was sent down printed in italics in black ink. We afterwards adopted the practice of printing in black ink, and then the House of Lords at the same time printed these money clauses in red ink; but the use of red ink and black ink by the other House became somewhat confused, and in course of time money clauses came down printed in black ink. Until now the vigilance of this House in regard to its privileges has not been aroused; and the result of our inadvertence and of concessions which we have made, in order to facilitate business in the case of private Bills, is that the present race of Peers have been led to believe that they have powers in respect of money Bills greater than the undoubted privileges of this House at all justify. The time has now arrived when we must check any such assumption, and I think that the course which you, Sir, have adopted for the last six weeks, and the objection which you have urged, and which the Lords have recognized, will act as an effectual check upon the practice we complain of. I rejoice that such a step has been taken; I thank you for the attention and the vigilance which you have exhibited. I am sure the defence of our privileges cannot be in safer hands, and I am equally sure that the House will not fail to support you in any steps which may be necessary to secure those privileges unimpaired.
§ MR. EDWIN JAMES
said, that the constitutional judgment which Mr. Speaker had pronounced would hereafter be the landmark for defining the privileges of the House on that great question. The contravention by usage of the broad distinctions between the attributes and powers of the two Houses had been sufficiently established by the speeches of the noble Lord and the right hon. Baronet. But there could not be a question in the mind of any one who calmly reviewed this case, and looked to the great principles which ought to decide the matter, that although it was perfectly true this was a Bill amending a former Bill, yet a new office—that of Her Majesty's Proctor—was created by it, and a new burden cast upon the people. Beyond all question the Bill was strictly within the decision pronounced from the Chair, but if the House was satisfied with a strong protest being entered, he trusted that protest would remain on their Journal and prevent this being made into anything like a precedent, because what was a pre- 1738 cedent to-day, became law to-morrow. Nothing could be more dangerous than to afford any ground for precedent under the circumstances of the collision which had taken place between the two Houses, upon a question beside which this question sank into insignificance. He hoped a strong protest would now be entered, and he felt convinced that under the guardianship of Mr. Speaker, as the depository of that House's honour and privileges, their honour would never be sullied or their privileges encroached.
§ MR. E. P. BOUVERIE
said, he thought that after what had passed, with which all were familiar, and after Mr. Speaker had called attention to the subject, it was impossible not to fully approve the course which was now taken and the endeavour which was made to put a stop to these practices, which had of recent years grown up in the House of Lords. At the same time he wished to point out that in the public convenience the practice had originated, and for the public convenience the practice had gone on. In that was their justification for allowing the practice to grow up and continue. In the discharge of their legislative functions the House of Lords had necessarily to consider the duties which officers appointed by statute would have to perform, and there was scarcely a Bill connected with the administration of justice—a subject which was considered to be the peculiar province of the House of Lords—which did not involve that consideration. The old practice was to say nothing in the Bill which came from the Lords as to the mode in which the officers should be paid. The financial part of the question was not raised, and it was left to the Executive to propose, in Committee in the Commons, the insertion of clauses which involved any charge upon the people. It was not so convenient a practice for the House of Commons as the practice which had grown up of having such clauses printed in Bills from the Lords in black or red ink, and thus submitted at once to the judgment of hon. Members. Although in theory those clauses were not supposed to be contained in the Bill, when there were red ink clauses the practice in Committee of the House of Commons was to take no notice of them, and to leave them to be brought up as new clauses at the end of the Bill. In point of fact the only result of having those red ink clauses printed in the Bill was to give Members of the House of Commons full 1739 notice from the first printing of the Bill what were the charges proposed, and what the mode of dealing with them. He was ready to admit that after what had passed it was necessary to take the course which at the suggestion of Mr. Speaker was now taken; but he ventured to think that the practice now put a stop to was of considerable advantage, and he only lamented that the course which the Lords had thought proper to take this Session on a far more important matter than this had forced on the consideration of the Commons their privileges in other respects, and driven them now and for many years to come to the necessity of a minute observance of those privileges, even where the public convenience suffered by that observance.
§ MR. MALINS
said, it appeared very distinctly that there was no danger of any collision between the two Houses, because upon a communication from Mr. Speaker the House of Lords had readily acquiesced in his suggestion, and upon this point he should not have spoken, as he believed it had been effectually disposed of by the noble Lord, the right hon. Baronet, his hon. and learned Friend, and the right hon. Member for Kilmarnock; but the noble Lord said that this Bill had been very long in possession of the House, and he thought they had great reason to complain that it had been lying on their table ever since the 1st of May, and had not been proposed by his hon. and learned Friend the Attorney General for second reading until the previous Monday or Friday.
§ MR. WHALLEY
said, he considered that the House might expect from him an apology for addressing it on such a topic, in opposition to the opinions which had been expressed by the First Lord of the Treasury and the right hon. Member for Carlisle; but the reasons given were not satisfactory to him, and it was a question upon which, in these times, every Member, however humble, was not only entitled, but bound, to form an opinion for himself. Here was a breach of privilege; and how did the noble Lord propose to meet it? By merely entering a protest on the Journals. Why, such a proceeding was a recognition of the fact, and not a repudiation of it. In all other cases where an offence was committed practical remedies were resorted to, but it seemed that a new rule was to be adopted with respect to that House, and that the only remedy remaining for the defence of the rights and privileges of the House of Commons was a verbal pro- 1740 test. He did not think that was satisfactory. The very fact of accepting the encroachment under protest would itself become a precedent as to the mode in which like encroachments should be dealt with. Apart from that view, which appeared to him to be a substantial objection to the course proposed, he could not but avow an entire want of confidence in those who ought to be the leaders of that House and the protectors of their privileges. Of course, he referred to the great event of the Session—the retention of the Paper Tax against the wish of that House and the pledged faith of the Government. Although the present question was in itself utterly insignificant in comparison with that existing outrage of the constitution of the country, he could not on that account refrain from raising his voice against the toleration even in the smallest degree of an encroachment upon the privileges of the House.
§ VISCOUNT PALMERSTON
said, he would explain that which seemed to be misunderstood. He proposed to read the Bill a second time on the ground that it was sent down to that House a long time ago; that since that the violation of their privileges had been remarked upon, and that in consequence of the representation which Mr. Speaker had made to the House of Lords of the informality of the practice it had been discontinued. The entry on the Journal would not be a protest against the practice, which was discontinued, but simply an explanation of the reason why the Bill was read a second time.
said, he took a deep interest in everything that affected the rights and interests of the House, and he felt constrained to say that, although under other circumstances he might he content with the protest proposed to be made, he could not under those that did exist feel convinced that that protest would suffice to meet the necessities of the case. They lived in very strange times. None of them would have believed, some time since, that an attack would be made by the House of Lords upon the most precious birthright of Englishmen. At that moment they were taxed by the sole authority of the House of Lords, and against the consent of the House of Commons. A tax was levied upon the sole authority of an irresponsible branch of the Legislature, and, with every disposition to be conciliatory, and every desire to agree to the proposition of the noble Lord, he felt that other measures 1741 should be taken to mark the sense of the House in reference to the invasion of their rights on a former occasion. If hon. Members concurred with him, he would be disposed to move the House that the Bill be laid aside independent of its intrinsic merits, not solely on account of the aggression upon the privileges of the House, but in order to show that they viewed with disgust the pusillanimous conduct adopted by a majority of the House on a former occasion.
§ MR. MELLOR
said, he also was deeply sensible of the necessity of their protecting the rights and privileges of the House; but be could not imagine a more insignificant matter upon which to raise the question. The course taken by the other House was not intended as an aggression; and the practice had been discontinued. He approved of the practical result arrived at by the House on a former occasion. If the noble Lord had proposed action on a fiscal question on which the people were divided in opinion, that House would not have been supported by public opinion; and if such step had been taken it would have resulted rather disadvantageously than beneficial to their privileges.
§ MR. JOHN LOCKE
said, that, whatever opinion he might entertain respecting the course that should have been pursued on a former occasion, when an aggression was committed by the Lords on the privileges of the House, and when it was intended to be an aggression, he felt they would be descending very low if they took upon themselves to meet with a strong measure that which was never intended to be an aggression. It was explained that so far from intending an aggression the House of Lords had pursued, in regard to this Bill, the course invariably pursued for a great number of years without objection, because the course had tended to the convenience of the business carried on by both Houses of Parliament. Therefore, he trusted the lion. Member for Brighton (Mr. White) would not take the sense of the House upon a point which was really not one that could settle the great question at issue between the Lords and Commons as to the privileges of the latter.
§ MR. CONINGHAM
said, that after the course adopted by the House in reference to the gigantic encroachment on its rights on a former occasion, it would be like straining at a gnat after swallowing a camel, if they took action on a mere question of detail like the present. He there- 1742 fore concurred in the recommendation of his hon. and learned Friend the Member for Southwark (Mr. John Locke), that the House should not divide on the question before them.
§ MR. HENNESSY
said, he had pointed out the irregularities both to Mr. Speaker and to the Government as early as the month of May last. Her Majesty's Ministers had taken no notice of his suggestions, and if he were to look only to the conduct of the Government he certainly would not withdraw his Motion; but there were more cheering symptoms. He believed the decision of Mr. Speaker would sufficiently guard their privileges, and after the observations of the right lion. Member for Carlisle and the lion, and learned Member for Marylebone, he thought he should best consult the feelings of the House by withdrawing his Motion.
§ MR. SPEAKER
In putting to the House the Motion that this Amendment be withdrawn I wish to correct a misconception of the right bon. Member for Kilmarnock, who imagines that the effect of what has taken place will be to put an end to clauses in red ink coming down from the House of Lords, which he thinks is for general convenience. The result of what has taken place will not be to put an end to the practice, but to confine it within proper limits, and to take care that the creation of expenses, and the appointment of officers with salaries to he defrayed by moneys to be voted by Parliament, should not come down from the House of Lords as enactments, but merely as suggestions. With regard to the observations of the right hon. Member for Carlisle, that the vigilance of the officers of this House had in some degree been laid asleep, it is right to the officer of the House whose duty it is to attend particularly to this point to say, not only that there is no more vigilant officer of this House, but that his vigilance had not been laid asleep in this matter—that he had accurately observed what had taken place, but that he thought that, under the decision of 1854, it was not his duty to bring it especially under attention.
§ Amendment, by leave, withdrawn,
§ MR. MALINS
said, that when the Divorce Court was originally established many lion. Members, and a great majority of the public out of doors, were of opinion that the additional facilities given for the dissolution of marriage, would open the door to loose practice to an alarming extent. The argument which his hon. and learned Friend 1743 the Attorney General opposed to this apprehension, and by which mainly he secured the passing of the Bill, was that the decision of all cases of dissolution of marriage would he confined to the full Court—consisting of three Judges; of whom the Judge Ordinary would be one; the other two being selected from the Lord Chancellor, or the Chiefs of the three Courts of Common Law. It was then understood that, as a safeguard against collusion, the presence of three Judges should be required in all cases of dissolution of marriage. In Committee, however, he (Mr. Malins) suggested that it would be found very difficult in practice to constitute a court within the proposed limits; and, in accordance with his suggestion, the area of the court was enlarged, and three of the senior Puisne Judges were made members of it. He thought that the expectations of his hon. and learned Friend, of the House, and of the country, had been surpassed by the results of the Bill. It was stated, in the debate on the Bill, that from 1715 to 1760 the applications for the dissolution of marriage were, on the average, one in a year. Prom 1760 to 1800 they were three in the year; and from 1800 to 1852, they dropped to two in the year. But it appeared by the returns, that, whereas all the petitions presented for a divorce for twenty-three years, beginning with 1833 and down to 1857, were 238, or about ten in the year, there were, from the 1st of January, 1858, to the 31st of December in the same year, no less than 236 petitions presented for dissolution of marriage; and, in addition, 84 petitions for judicial separation; making a total of 320 applications in one year. It was found before last year very difficult to get two Judges to assist the Judge in Ordinary; it was found almost impossible to get the Lord Chancellor to sit; the only Lord Chancellor who had sat at all was Lord Chelmsford, and that only for two or three days. The Chief Justices had been scarcely able to sit at all; and the consequence was that Government last year made every Common Law Judge a member of the Court. But now it appeared, so overwhelming was the business, that even with the Court so constituted, it was impossible to obtain the necessary attendance. Now, under those circumstances, what was it that common sense pointed out as absolutely necessary? The principle of the original Bill being that no marriage should ever be dissolved, except after the most minute investigation, so that there could be no collusion, no 1744 fraud, what was proposed by the Bill, whoso second reading was then asked, after it had lain on the table from the 1st of May? They were asked to commit all these questions, not to three Judges, but to one; so that Sir Cresswell Cresswell might have all the power which Parliament, in 1857, conferred upon a court consisting of three. Could there be a Bill of higher importance, or raising questions of more grave consideration? They had already read, in the public prints, when a full Court was constituted—and a great scandal it was, which lessened them in their own estimation, and that of other nations—the names of five or six couples, who, in a sitting of a few hours, had their marriages dissolved. Indeed, eight or nine couples had had their marriages dissolved in one sitting: and the hon. and learned Gentleman, the Member for Marylebone (Mr. B. James), had stated that in some six hours eighteen or nineteen marriages had been dissolved. [Mr. E. JAMES; Undefended cases.] Undefended cases? But did not that open the door for collusion and fraud, the very thing which they had to guard against; for, if once they made marriage dissoluble in that way, they would have all persons who wished to get rid of one another coming to the Court. He did not think that any one who took part in the debates on the Bill, ever imagined that ten or twenty marriages would have been dissolved in six hours. In looking over a publication of Mr. M'Queen, containing much valuable information, he was struck by the statement that, upon the average, cases of dissolution of marriage occupied much less time than applications for judicial separation, and that statement he had heard confirmed by gentlemen experienced in the business of the court. And why was that? Because parties were much more willing to have their marriages dissolved, and therefore there was no opposition; but when it came to a question of judicial separation, then, and then only, there was opposition. Now, could it be right that a Bill of this overwhelming importance, which had been on the table nearly four months, should be brought on at such a time? How many cases were pending in the Court for dissolution of marriage? Between 290 and 300. That was an appalling state of facts, and one which made it of the highest importance to take every precaution against an abuse of the law. It was now proposed to leave the Judge Ordinary alone to dispose of the business which Parliament had 1745 hitherto decided should not be dealt with by less than three Judges. He believed the country generally did not approve the law of divorce, and that its operation had been prejudicial to society, and it would be still more injurious if it were not administered with the greatest care and jealousy. He regretted the Chancellor of the Exchequer was not present, because, though he had changed many opinions since 1857, he believed his opinion on this subject remained unchanged. So far from committing the business of this Court to the Judge Ordinary alone, the proper course would be to constitute a Court of three Judges, or two, at all events, so that all cases might be deliberately and minutely examined. The Judges ought to have abundance of time, and be such men as, by their habits and experience, would be fitted to decide such important questions. He would prefer a court of three Judges, including a common law, a civil law, and an equity Judge. It was most impolitic to leave the important business of this Court to be transacted by one Judge only, with nobody to consult on difficult questions. It was the general impression of those who practised in the Divorce Court that divorces were in many instances procured by collusion and fraud; but if it was well known that there was an efficient tribunal to try and sift every case that came before it, fraud and collusion would not be attempted. There was great reason to complain that the Bill had been proposed on what was virtually the last day of the Session. The best course would be to leave matters as they were until next Session. They were now at the end of August; in five months more Parliament would again assemble. September and October would be vacation months, so that only in November, December, and January, could anything be done in the Court. His hon. and learned Friend, by allowing the Bill to remain four months on the table after it had come down from the House of Lords, had given the best proof that he did not consider it of pressing necessity. If the Bill went into Committee, he should move a clause limiting its operation to one year; meanwhile, he moved that it be read a second time that day month.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day month."
§ SIR GEORGE BOWYER
said, that this was a Bill to facilitate the working of 1746 an Act the results of which he held to be most pernicious. He believed that the effect of the Bill that created the Divorce Court had been to shake the morality of the country, and greatly to diminish the sacredness of the tic of marriage. It could not be doubted that there was a fearful amount of collusion in the court, and the Bill which established it ought to be called a Bill for enabling wives to change their husbands and husbands to change their wives, and the court an Encumbered Estates Court for the transfer of women, he was told not long since that a case was about to be brought before the Court which has been so carefully prepared that it was impossible to detect collusion. An agreement had been come to between the parties that the marriage should be dissolved for adultery. A single witness was to be produced who would depose to circumstances which would, it was thought, induce the Court to pronounce for a divorce. The parties were perfectly certain that they would succeed in dissolving the marriage tie, the husband wishing to marry another woman, and the wife wishing to marry another man. He had not been told the names of the parties, so that he was unable to say whether they had succeeded in their object, but he had no doubt they had obtained what they desired. It was said, and with truth, that cases of action for crim. con. used to exercise a bad influence on the public mind and morals. But the Court of Divorce caused ten times more scandal. Hon. Members must have observed on coming down to the House the crowds of persons who blocked up the entrance of the court. It was often difficult to obtain admission for the crowds who went, as to a theatre, to hear the exposures of domestic disgrace. He would admit that the press exercised a sound and proper discretion by not publishing all the details of these cases, but still they must taint the minds of those who went to hear them. People actually went to this court to gain experience, and to learn how to manage their own cases. He had heard of instances in which husbands and wives who wished to dissolve the marriage tie frequented the court to see how it could best be done; so that the court was not only a Court of Divorce, but also a school of divorce. Another objection he had to the Bill was that it gave such enormous power to a single judge. A Court of three, or even two, Judges would be much more salutary. A single Judge might sometimes 1747 be tempted to do arbitrary things, while if he had one or two coadjutors they would check and control him. At first the Legislature directed that divorces should not be granted save by three Judges, two of whom were to be the chiefs of their respective Courts. That provision was afterwards relaxed, but the Legislature still adhered to the principle that three Judges should sit to grant divorces. Parliament was now told that these serious and delicate cases were to be decided upon by a single Judge. As he feared the Amendment of his hon. and learned Friend would be defeated, and as he did not intend to take part in any further proceedings with regard to the Bill, he wished to make a suggestion to the hon. and learned Attorney General. The 5th Clause empowered the Court, in cases where only one party appeared, to require counsel to be appointed to argue on the other side. That was a very good provision, but it did not go far enough. It ought to be applied not only to undefended cases, but to all cases. At Rome there was a permanent officer, a sort of Attorney General, who was called "Defender of Marriages," and whose duty it was, in all cases where application was made for a declaration of nullity of marriage, to defend the marriage. Every point in favour of the marriage was thus brought before the Court, which was spared the necessity of deciding on ex parte evidence, and all risk of collusion was prevented. In the same way, in peerage cases in our own country, the Attorney General had to resist the case of every claimant: so the Divorce Court ought to be empowered in every case to appoint Counsel to oppose the divorce He protested against the Divorce Court altogether, but if it was to be continued steps should be taken to have every application opposed in the way he had mentioned.
§ MR. EDWIN JAMES
said, the hon. and learned Baronet (Sir George Bowyer) had mistaken the question before the House, and his speech was a mere repetition of the arguments he used against the original measure. If there had been a Motion to repeal altogether the original Act, he could have understood his arguments. But the question before them was simply whether they should leave the system as it was, or whether they should adopt a measure to facilitate and expedite the transaction of business in that Court. The hon. and learned Member for Walling-ford (Mr. Malins) had drawn a contrast 1748 unfavourable to the present system, between the year 1760, when only two divorces were granted, and 1860, when there were 290 applications waiting to be disposed of. That argument only showed that in 1760 there was a most scandalous denial of justice to a class of very unfortunate persons. The hon. and learned Member also said he was shocked at the number of undefended cases. The reason why certain cases were undefended was simply because they were indefensible. A wife, perhaps, bad deserted her husband and children, and was living in open adultery with her paramour. The adultery was proved to the satisfaction of the Court, and what more was required? Before the ordinary tribunals of the country, undefended cases were of everyday occurrence. The hon. and learned Member entertained a strong dislike to a single Judge. [Mr. MALINS: Not generally, but in this particular case.] But a single Judge was allowed to sit in equity, in Nisi Prius, and in the criminal courts, and to try cases which affected the property, the character, the liberty, and even the lives of Englishmen. He believed it advantageous to have a single Judge, where he was an able and eminent man, because divided responsibility sometimes tempted a man to be careless. To show the hardship at present inflicted on unfortunate suitors, he would mention one out of a hundred cases. A gentleman of property at Cheltenham had filed a petition for a divorce as far back as July, 1859. His wife had left him, and was now living in open prostitution with her man-servant in the neighbourhood of that town. Four of her eight children were staying with her; and she was able to maintain herself and paramour out of the £3,000 which her husband had settled on her when they were married. That case would probably not be tried till July, 1861, as there were ninety before it on the list. Two years would, therefore, elapse before that gentleman could obtain relief, and during that time his wife would be left in possession of her settlement, and witnesses might be tampered with and got out of the way. He believed the Divorce Court had conferred a great benefit on the public, and relieved a vast amount of domestic misery. The cases of collusion were not half so abundant as his hon. and learned Friend imagined. It was a common mistake to suppose that there had been collusion when the adulterer married the adulteress. It was not collusion when a man, having se- 1749 duced a married woman, made the only amends in his power, and married her after she had been divorced. The collusion to be prevented lay between the husband and the wife. In his opinion one Judge was quite as able to detect collusion as three, and it was absurd to have three Judges sitting to make formal decrees in cases where there was no more ground for defence than for a felon taken in the act. He had heard no arguments against the Bill. The arguments which had been used were arguments against the original Divorce Act. He should vote for the second reading, but in Committee he should propose Amendments. He thought the two clauses in reference to the Queen's Proctor objectionable, and he trusted the Government would insert a clause giving the Judge Ordinary power to call on ex-Chancellors and ex-Judges who were receiving largo pensions from the country to assist him when necessary.
§ MR. SPOONER
said, he had supported the original Divorce Act from the conviction that it was exceedingly hard that a poor man should be prevented by the expense of proceeding from obtaining a divorce while to a rich man the expense was nothing. But strongly as he felt the injustice done to the poor man he would not have supported the original Divorce Act had not the Attorney General's speech convinced him that by the Bill (then under consideration), the court would be so constituted, that they might as safely entrust the power of divorce to that Court as to the House of Lords; but the effect of the present Bill if passed into a law would destroy the safeguards upon which the Attorney General had so powerfully dwelt, and upon which he (Mr. Spooner) had relied. But the results which have followed the passing of that Bill, and the speech of his hon. and learned Friend the Member for Wallingford had convinced him that the alterations proposed by the Bill now before the House would be very dangerous. He should therefore vote against the Bill.
§ MR. HENNESSY
said, he would remind the House that the Commission which sat to inquire into the subject of divorce had reported that it was of vital importance that no single Judge should have the power of dissolving marriage. The Bill which was brought in in 1857 by the hon. and learned Attorney General, and passed, not only contained a provision to secure that object, but it was recommended to the House as being unexceptionable in its procedure. The question 1750 before them was not one merely of procedure, but affected the powers of the court. What was the action of the Divorce Court. Its existence had occasioned so great a pressure of business that the Judge Ordinary had requested the Lord Chancellor to prepare a Bill to afford greater facilities for granting a divorce. That was proposed to be done by enabling a single Judge to dissolve marriage. He asked the attention of the House to the fact that the question of adultery which came before the Divorce Court was not one of law but of fact, and there was this great difference in the constitution of that court from all other courts, that the Judge had, to some extent, to perform the functions of a jury, and to decide upon questions of fact. It was upon that account that Parliament had felt it important to secure the presence of more than one Judge upon the bench. They had seen fully realized the statement which the right hon. Chancellor of the Exchequer made in opposing the Divorce Act, that it would lead to great complications, and to a state of things which they would ultimately regret. The right hon. Gentleman had said very truly that the moment they attempted to dissolve marriage by the judgment of a Court for the purpose of allowing the adulterer to marry, they were attempting to do by Act of Parliament that which they were told they should not do by Holy Writ. The Divorce Act degraded and disgraced the women of the country, and violated the precepts of Holy Writ. He could not consent to anything which would facilitate the action of such a Court, and probably in a future Session a Committee would have to be appointed to inquire into its operation. He could not understand how there should be a great pressure for the Bill in the long vacation, when there seemed to be no hurry about it at the time the Court was sitting. Under the Motion which he had withdrawn he did not desire to lead the House into a discussion of the merits of the Bill; but he was opposed to the clauses to which the decision of Mr. Speaker referred, irrespective of the circumstances under which they appeared in the Bill. He objected to making any charge on the Consolidated Fund for the purpose of facilitating divorce. He objected to spending any more public money on the Court, and he objected to giving powers to the Queen's Proctor which Parliament had refused to give to the Attorney General.
THE ATTORNEY GENERAL
said, it 1751 was due to the House that he should revert to the complaint which had been made of the long delay in bringing forward the Bill. He had felt that delay most acutely, as he had felt it also in regard to other measures. No one could say that the delay was anything but inevitable. Let those hon. Members who had been in the House night after night until two or three o'clock in the morning retrace in their recollections the occupation of the different Government nights, and lay their fingers on any one night when it would have been possible for him to bring the Bill on before twelve o'clock at night. Had he attempted to bring it on after that time it would have been said at once that the subject was of too much importance to be discussed in the small hours of the morning, and he would have been exposed to much indignant remark for attempting to take any such course. The House, however, had been no sufferer, for nothing could have been added to the arguments which had been brought forward against the Bill. It had been unjustly and inaccurately described as a Bill to dispense with the full Court, and to concentrate all its authority in the hands of one Judge. It was undoubtedly to dispense with the necessity of having three Judges on all occasions, and to leave it to the discretion of the Judge Ordinary to call in the assistance of two other Judges whenever he might deem it requisite. The hon. and learned Member for Wallingford (Mr. Malins) said the Court was constituted originally with three Judges in order more effectually to prevent the possibility of collusion and connivance; but he had failed to show how three Judges could better detect collusion or connivance than one? The hon. and learned Gentleman who spoke last seemed to forget entirely that that which dissolved marriage was adultery uncondoned, and unattended by collusion or connivance. The fact of adultery was established by the verdict of a jury presided over by a single Judge, and when the record of trial came before the full Court then dissolution of marriage was either pronounced or refused. This Bill, while it dispensed with the idle obligation of always having a full Court of three Judges in the most ordinary cases, left it to the Judge Ordinary to require the assistance of two other Judges whenever there was any question of doubt or difficulty involved. There were also provisions in the Bill for the detection of collusion and con 1752 nivance which would enable the Judge to direct a preliminary inquiry into the circumstances of a case whenever he deemed it right. The House must recollect that it was the adultery which dissolved the marriage; what was wanted to be ascertained with sufficient certainty was the fact of the actual commission of that crime. There were cases in which for the more effectual attainment of that object there ought to be a preliminary inquiry, and the kind of assistance given to the Court by this Bill was that which experience showed to be most desirable. He hoped hon. Gentlemen would not run away with the idea that there was any foundation for the assertion that the cases of collusion were numerous. he had made it his business to watch the Court from the commencement, and from the best information which he could obtain he did not believe that there had been more than four or five cases in which there was any certainty or even reasonable probability of the existence of collusion. Under the old system there was a great deal more ascertained collusion and connivance than in the new Court. Those hon. Members who lamented over the cases which had come before the Court as if they were a reproach to the Court ought rather to lament over the immorality of the country. It was a remark of Sir William Scott that "it was most essential that every person living in a community should know the real state of that community," and surely hon. Gentlemen did not suppose that because these cases were not brought forward when there was no remedy for them attainable by all there was on that account a greater amount of morality in the country. It was, however, unnecessary to go into the merits of the question, because the House had already pronounced judgment on them, and the general opinion of the country had also been pronounced in favour of the justice, necessity, and propriety of establishing the new tribunal. The Bill had been introduced on the basis of a letter which was addressed to the Lord Chancellor by the Lord Chief Justice of England, pointing out the impossibility of the ordinary Judges discharging these additional duties, and at the same time, pointing out that the experience of the Judges was that in nineteen cases out of twenty it was perfectly unnecessary for them to attend. That letter was confirmed by the experience of the Judge Ordinary. It had been well said in the course of the debate that it was idle to 1753 complain of these powers being continued to a single Judge when the graver issues of life and death were left to a single uncontrolled Judge. The Court of Criminal Appeal which had been established could only be approached at the discretion of the Judge presiding at the trial, who had it in his power to reserve a point or not. Acting on that analogy, the Bill threw on the Judge Ordinary the responsibility of summoning the assistance of two other Judges whenever he might think it necessary, but in ordinary cases, the facts having already been determined before a jury, it would be idle to require their presence merely to play the part of the "mute persons" of the drama. No doubt the procedure of the Court was capable of improvement. It might lead to the easier detection of collusion and connivance if, instead of the petition being a mere allegation of the fact of adultery, it were required that the circumstances and the acts relied on as the ground of complaint should be stated in it. It would be, however, for the wisdom of the presiding Judge and the other authorities to consider that suggestion according to their experience; but he was perfectly certain that the number of Judges would not facilitate the detection of collusion. The provisions of the Bill would do much more to attain that desirable object, and be therefore hoped that the House would now read it a second time.
§ MR. DARBY GRIFFITH
said, the danger of collusion was in cases where the wife had the doubtful boon given to her of obtaining a divorce, and that both the hon. and learned Attorney General and the hon. and learned Gentleman (Mr. James) had left that danger entirely out of their consideration.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day month."
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 43; Noes 11: Majority 32.
§ Main Question put, and agreed to.
§ Bill read 2°.
§ (In the Committee.)
§ Clauses 1 to 4 agreed to.
§ Clause 5 (Court may, where One Party only appears, require Counsel to be appointed to argue on the other Side).1754
THE ATTORNEY GENERAL
proposed Amendments empowering the Court, in every application for a dissolution of marriage, to direct the necessary papers to be sent to the Queen's Proctor, who, under the direction of the Attorney General, should instruct counsel to argue any question which arose in relation to such divorce.
§ MR. M'MAHON
remarked, that the Court would be involved in difficulty by the proposition. If decisions were given when only one side was heard, the judgment was taken to be ex parte; but if the Attorney General directed a question to be argued the decision would be regarded as an authoritative judgment.
§ Clause, as amended, agreed to; as were the remaining clauses.
§ MR. MALINS
said, he thought the subject was of too much importance to settle finally at the end of a Session and in so thin a House. In order, therefore, that there might be an opportunity afforded for further consideration of the question, he proposed a clause declaring that the Act should continue in force until the 31st July, 1861, and no longer.
THE ATTORNEY GENERAL
said, he could not for a moment admit that the House, as at that moment constituted, was inadequate to the proper consideration of the measure. He thought, however, it would be right to have the results of the altered arrangements with respect to the Court before Parliament. It would be twelve months before they could ascertain the effects of the measure. If, then, the hon. and learned Gentleman would alter his clause so as to make the period for the existence of the Act the 31st July, 1862, he should assent to it.
§ Clause, as amended, agreed to.
§ MR. AYRTON
said, he had been taken by surprise by the Bill being brought into Committee so soon after it had been read a second time, and he, therefore, was not prepared with a clause he had intended to propose. Before the constitution of the Divorce Court all questions of divorce were disposed of in the House of Lords, and gave employment to the ex-Lord Chancellors. As they were now receiving pensions without giving any adequate return, he thought they ought to sit in the Divorce 1755 Court and give assistance when required, in the same way as they used to do in the House of Lords. By that means the present large arrears of business would soon be disposed of, and the recurrence of a similar state of things would he prevented. Such would have been the effect of the clause he had intended to propose; but he trusted, as he was unable now to pursue that course, the hon. and learned Attorney General himself would add such a clause.
THE ATTORNEY GENERAL
said, he thought it was only necessary to state, in reply to the hon. Gentleman's suggestion, that with the exception of that venerable Peer, Lord Lyndhurst, whose advanced age would afford ample reason for the exception, every ex-Lord Chancellor had sat in the House of Lords deciding appeals five days out of every week since the 1st February last. He thought this would be admitted by the House to be an adequate return for the pensions they received.
§ MR. MALINS
said, considering the number of eases, and the difficult questions dealt with by the ex-Lord Chancellors in the House of Lords, it must be admitted that they not only did plenty of work, but they worked like slaves.
§ House resumed.
§ Bill reported; with Amendments; as amended, to be considered To-morrow.