HC Deb 27 January 1860 vol 156 cc232-7

said, he rose to ask the Secretary of State for the Home Department, Whether it was the intention of Her Majesty's Government to propose any alteration in the constitution of the Courts of Probate and Divorce? The subject was of importance, no so much to the legal profession as to the public at large. In the last Session of Parliament, in order to facilitate the operations of the Court, an Act was passed authorizing two Puisne Judges to make with the Judge Ordinary a full Court for Divorce, in substitution of the previous provision, which required the Judge Ordinary, a Chief Justice or Chief Baron, and one senior Puisne Judge to constitute a full Court. The consequence of the withdrawal of two Puisne Judges to sit frequently in the Divorce Court had been seriously felt, and the suitors in the Courts of common law had during the last term suffered great inconvenience. In the Court of Error, where there should be a large attendance of Judges to decide appeals from the Courts in which they were not Judges, there were very seldom more than five or six Judges; so that in the case of a division of opinion they might have had three Judges, or a majority, overruling the unanimous decision of five Judges in either of the three common law Courts. The inevitable result must be to increase the number of appeals to the House of Lords. But there was the further difficulty that, as the Court of Error was prevented from disposing of the business before it in December, and the Judges would be summoned to the House of Lords now that Parliament was sitting, it would take many months to clear off the arrears which had been created. Amongst other cases which were in consequence postponed, was the important case respecting the Shrewsbury estates. Unless some remedy were speedily applied arrears would increase, and the greatest inconvenience be caused. Considerable inconvenience also arose from the constant changes of Judges in the Divorce Court. It was not possible to have any settled practice, and two Judges coming fresh into the court might overrule the decisions of the Judge Ordinary, who sat there regularly. In consequence of the great increase of business in the common law Courts of late years the demands on the time of the Judges had greatly increased; and though it was immaterial to them where they sat, the interests of the public necessarily suffered. It was not for him to point out what was the proper remedy for the evil; but it was clear that the subject was one which called for the consideration of the Government, in order that they might effect some improvement in the existing system.


said, before the right hon. Gentleman announced the question he wished to make one or two observations on another great evil attending the Divorce Court. The operation of this Court had justified all the apprehensions expressed at the time of its creation. The reports of the proceedings were a standing scandal to the country. They polluted the columns of the newspapers to such an extent that it was really difficult to allow a newspaper to lie on the table in any decent house. If the principle on which the Court was formed were persevered in, and the business went on increasing at its present ratio, it would very shortly be necessary to give the County Court Judges power to grant divorces, a result which would be most deplorable in its effect on the morality of the country. But what he wished more particularly to direct the attention of the Government to was, the system of gross collusion which went on in that court. Proceedings were taken there which had been arranged beforehand, and the Judge had neither power nor machinery to prevent them. Unless some remedy were applied the court would become in a short time a sort of Encumbered Estates Court for the transfer of women. The name originally intended to be applied to it was the "Court of Marriage," but really a far more applicable title would be the "Court of Adultery," Some steps ought certainly to be taken for the prevention of this collusion. In his opinion, the only way of meeting the evil was by the appointment of an officer with a competent staff, whoso duties it would be to see that all suits were properly defended—to support the validity of marriages, and to prevent divorces being improperly granted. In every other country where there were courts for the dissolution or voiding of marriages there was an officer of the sort, whose duty it was to prevent collusion. Without some such official the Judge of the court might he made the instrument of doing much that was unjust and improper. His objections to the court and to divorces à vinculo matrimonii, which he considered contrary to the law of God, still continued unchanged; but if the court was to exist some steps ought to be taken to render it as little injurious to the morality of the country as its nature would permit.


The House is no doubt aware that by the constitution of this Court a portion of the business is transacted by the Judge Ordinary alone, and for the other portion, the presence of two Judges from the common law Courts is necessary. On the establishment of the Court a new official was created—namely, the Judge Ordinary—but with regard to the associated Judges, reliance was had upon the attendance to be obtained from the Courts of common law. The business of that Court has been considerable—probably greater than was anticipated at the period of its formation, and demands have been made upon the common law Judges to a greater extent than is altogether consistent with (he convenient despatch of business at certain times, more particularly when it is desired to form a Court of Error, where the presence of a number of Judges is necessary. To a certain extent, therefore, there is doubtless ground for the complaint made by the hon. and learned Member for Guildford. The matter has been under the consideration of the Lord Chancellor, but acting on his advice, the Government are not prepared to recommend an increase in the number of the common law Judges, or the appointment of a now Judge for the Divorce Court. They think that it may be practicable to enlarge the class of business to be disposed of by the Judge Ordinary alone, and to render unnecessary the presence of other Judges except in cases of peculiar difficulty and importance. With regard to what has fallen from the hon. and learned Member for Dundalk (Mr. Bowyer) respecting the ex- pediency of enabling the Judge to exclude the public from the Court in certain cases, a noble Lord opposite (Lord John Manners) has given notice of his intention to introduce a Bill for this purpose, and it would therefore be prematurely taking up the time of the House in the miscellaneous Friday evening's debate to enter into the subject. I must decline, also, to enter into the general policy of the Divorce Act, unless some specific Motion be made on the subject. With regard to what fell from the hon. Member for Pontefract (Mr. M. Milnes), I hope it will be distinctly understood, both in the House and in the country, that the Courts of England have no jurisdiction in regard to offences committed in a foreign ship on the high seas, however grave that offence may be, or however excited may be the feelings of the people of this country when the persons who have committed the offence land here. Our tribunals are utterly powerless in such cases, and I do not believe there is a single case in which any criminal Court here can take cognizance of such offences—except the case of treason may be considered an exception. The only way, therefore, in which an English magistrate or policeman can deal with such offences is under an extradition treaty. We have such treaties only with France and the United States, and I am happy to be able to inform my hon. Friend and the House, that this very day I have signed an order under the extradition treaty for the delivery to the proper authorities of the two mates of the ship Anna, in order that they may be sent to the United States, to take their trials before the tribunal of the country, which alone has jurisdiction over them. Turning now to the question of the hon. and learned Member for Marylebone (Mr. E. James), I will just remark that a Bill was the other day introduced into this House with reference to criminal appeals. I believe that Bill has not yet been circulated, but an early day has been fixed for its second reading. When it comes on for discussion, I shall he ready to express my opinion upon the whole subject. With regard to the particular case of Thomas Smethurst, the hon. and learned Member admits that he does not wish the prerogative of pardon to be abolished, but he speaks of the anomalous proceeding of pardoning a criminal without the knowledge of the jury who found him guilty, and upon a private and ex parte examination. The course which I followed in this case was precisely that which has been taken, time out of mind, I may say, by the Secretaries of State for the Home Department who have preceded me'; therefore the term "anomalous" can only be applied with reference to some new system of practice which the hon. and learned Gentleman wishes to introduce. The course which I adopted was to call for the shorthand writer's notes of the trial, to hear everything which could be alleged on the part of the prisoner by his friends or legal advisers, and to refer all the papers which were brought before me to the learned Judge who tried the case, and it was not until the learned Chief Baron, after long consideration of the subject, made a very full report that I took any steps in the matter. In that report the Judge recommended that the matter should be referred to some eminent medical practitioner; and I accordingly placed his report in the hands of Sir Benjamin Brodie, whose eminence and fitness will, I think, be universally admitted. In a conversation which I had with him, in order to obtain his permission to the reference, he assured me that he had but a superficial knowledge of the subject, and had formed no opinion whatever with regard to the case; and therefore I believe that it would be impossible for me to find a more impartial referee. After full consideration, given, I can assure the House, with the utmost attention of which I was master, and after hearing an infinite variety of opinions from different persons, I came to the conclusion that the proper course for me to adopt was to advise the Crown to grant a free pardon; and I can only say that nothing which has occurred since I gave that advice has made me entertain any doubt as to its rectitude. I think it right to state that the Chief Baron expressed an opinion that the prisoner ought not to be executed, and he subsequently made the suggestion that Smethurst did not administer drugs to Miss Isabella Banks with a view of taking her life, but possibly with a view of procuring abortion. That was the hypothesis which a consideration of all the evidence had suggested to him, but it was a hypothesis wholly different from that which was adopted by the prosecution at the trial, or from that which was submitted by the Judge to the jury, and it is impossible for me to say whether, if that view of the evidence had been submitted to them, they would have found a verdict of guilty. I think the House will be of opinion that, consistently with the opinion of the learned Judge which was formed after the maturest consideration, this was not a case in which Her Majesty could have been advised to commute the capital sentence into one of penal servitude. The hon. and learned Gentleman succinctly stated the course which was taken with regard to the published letter; and I am glad that he does not propose to move for any document on that subject. I shall be ready to give, in general terms, any information which the House may desire, but, with reference to the Royal prerogative of mercy, I must be allowed to express my opinion that great inconvenience and great embarrassment would arise in the exercise of an extremely (delicate and painful duty if confidential I papers of this kind were called for.


observed, with regard to the question which the right hon. Gentleman had previously answered, that he had lately seen an extract from The New York Times from which it appeared that during the last year there had been no less than forty-nine complaints by seamen against captains and officers brought in the American courts, and only in one instance had there been a conviction. The great majority of these cases had broken down for want of evidence. He begged to remind the House and the right hon. Gentleman that, by one of the provisions of the Merchant Shipping Act of 1854, any captain of a vessel was competent to call upon the captain of another vessel to take on board a person accused of an offence of this description, and to carry him to a port where he might be tried, under a penalty of £50. He would suggest that, under the extradition treaty, this provision might be extended to American ships. It was a provision which might well be adopted by the American Legislature. At the same time he might add that the same Act contained provisions for taking the depositions of witnesses who could not attend at the place of trial.

Motion agreed to.

House at its rising to adjourn to Monday next.