The Earl of Radnorrose for the purpose of explaining to their Lordships the reasons why he was obliged, but with feelings of pain and regret, to dissent from the Motion. Perhaps he owed some apology to their Lordships for having taken up this business at so late a period, and he should be extremely sorry if inconvenience resulted to any of their Lordships by the course he had felt it his duty to adopt. 432 The fact was this: he was accidentally present at the second reading of the Bill. At that time the thought of offering any opposition to the measure had not entered his mind; as, indeed, it could not, for he repeated that accident alone had led him to the House on the evening to which he had alluded. When he came into the House, witnesses were being examined at the bar preparatory to the second reading of the Bill, and the examination was conducted in a manner which forced itself upon his notice, and he must say, in a manner which surprised him. Still, however, he had no thought of obstructing the progress of the Bill; and when he was asked on that occasion if he wished the evidence to be printed, he answered "No." But, as he before observed, his attention had been attracted by the mode in which the examination was conducted; and, after reflecting on the subject, he came down to the House the next day, and asked to look at the manuscript evidence. The manuscript, he was told, was not ready, and could not be seen till the following day. On the following day he saw it, and the third reading of the Bill was put off until this day. He therefore had been the cause of the delay, and he begged to assure their Lordships that he deeply regretted the accident which brought him to the House on the second reading of the bill; because it had forced upon him the discharge of an extremely painful duty. Still, however, he felt that it was a duty, and ought to be performed. There were many considerations which ought to induce their lordships to make their proceedings in this, and in all similar cases, open, clear, and free from all objection. Disagreeable as it was, in all cases, to interfere between an applicant for divorce and the remedy he sought, that interference became still more disagreeable in the present case where the applicant was a member of that House, and a member of the Government. But if the discharge of the duty were thus rendered more painful, it was at the same time rendered the more imperative from the very same reasons. When the applicant for divorce was a peer of the realm, and high in his Majesty's councils, it became incumbent on the House to see that the proceedings were conducted with the strictest regularity and formality, lest men should suspect it to be possible that the dissolution of the most solemn of all en- 433 gagements was more easy to those in high stations than to those whose condition was less elevated. It was incumbent upon their Lordships to guard against such a suspicion, and much more incumbent upon them was it to see that there should be no ground for the imputation that their Lordships could be influenced by any other considerations than those of even-handed justice. No one would suppose he meant to insinuate that any of their lordships could be so influenced; but in such a case as this, it was of the highest importance that no objection should be fairly taken to their proceedings, because if those proceedings were in any respect liable to objection, no one could tell to what suspicions that fact might give rise. Now it did appear to him that the proceedings in the present case were liable to objections. There were many parts of the case which required a more rigorous examination than they had yet received. In the present case the alleged adulterer was a foreigner. This, of course, was a misfortune which attached to the case, and not a matter of blame to those who had conducted it; but it ought to be to their Lordships a reason for more careful examination, because it had deprived the proceedings of that important feature which was generally requisite in such cases,—namely, a trial at law. There was another circumstance, too, which made it incumbent upon their Lordships that the evidence in this case should be carefully examined. A counsel had appeared on behalf of Lady Ellenborough in opposition to the Bill; but what had been the conduct of that counsel, who must be supposed to have acted, as all counsel did act, according to the instructions he had received from his client? Why, he firmly believed, and every one of their Lordships who had observed the conduct of Lady Ellenborough's counsel must also believe, that he had been instructed not to offer any bonâ fide opposition to the bill. Why, then, had counsel appeared? Why, as he believed, merely as a blind, and to prevent any noble Lords from asking questions of the witnesses, or taking objections, when they saw that the counsel, who should have done this, refrained. He hoped that he was not doing injustice in making these observations, but such was his impression from what he had seen and heard. Counsel was in attendance nominally for Lady Ellenborough; but 434 that counsel did not avail himself of objections that were palpable, and he neglected to sift, by cross-examination, evidence the most loose and unsatisfactory. Could he, then, help believing that Lady Ellenborough did not intend to make a bonâ fide opposition? And if she did not, why did counsel appear for her, instead of leaving the case undefended, which was the ordinary course, unless the appearance of counsel were intended, as he believed it to be, as a blind to their Lordships. There were other circumstances connected with the conduct of the case, which, he must say, he thought deserving the serious attention of their lordships. It appeared to him, also, that many parts of the evidence were too vague, too loose, and too unsatisfactory for their Lordships to act upon. The case, their Lordships would recollect, appeared to fail in that part of the evidence which related to the identity of the parties; and in consequence, additional evidence was brought forward on that point. Looking at the whole of the evidence upon this part of the case, he assured their Lordships that, as an honest man, he could not lay his hand upon his heart and say, upon his honour, that he was satisfied with it. Any counsel, he was sure, might have destroyed the case of the applicant on this point, if he had been instructed to make a bonâ fide opposition to the Bill. He would not, however, insist upon this point, for it was, in his view of the case, altogether insignificant when compared with another, upon which alone he should be inclined to rest the propriety of his opposition to the further progress of the Bill. The point to which he referred was the conduct of Lord Ellenborough, and he would state at once that he did not think the conduct of his lordship had been such as entitled him to the relief which he sought from that House. He had heard it stated, but not without astonishment, that if two parties were willing to separate, it was unfair and ungenerous in any one to oppose a divorce prayed for by the one and not objected to by the other. It was said to be for the happiness of both parties that, under such circumstances, a separation should take place. It was said, that it was harsh and even cruel, to bind two persons together by indissoluble bonds, when each of them was inclined for separation. Let him, however, remind their lordships, 435 that there were other considerations besides the wishes of the parties, which their lordships were bound not to lose sight of. If a proposition were brought forward to this effect,—namely, that un-happiness of temper, dissimilarity of taste, increasing dislike, from whatever cause, and the like circumstances, should be sufficient ground for divorce between two parties who were mutually inclined to separate,—the introduction of such a proposition would form the proper occasion of discussing and deciding upon its merits. He might have his own opinion upon such a proposition; but whether he had or had not, certainly this was not the time to say one word upon it, for no lawyer would peril his reputation by contending that, as the law now stood, the wish of the parties could be any ground for a divorce. He might, then, dismiss this proposition, since, with its merits or its demerits, their lordships, as judges and as legislators, had nothing to do. To return, then, to the evidence taken in the case before them:—let him recall to the recollection of their lordships the nature of the evidence with respect to the terms of mutual happiness on which Lord and Lady Ellenborough lived together. In his opinion, this part of the evidence again, was most unsatisfactory. Only two witnesses had been called to give evidence on this point. One of them was Mr. Law, the brother of the noble applicant, the other a lady who had been governess to Lady Ellen-borough. No doubt it would have been extremely desirable to go out of Lord Ellen-borough's family for evidence as to the terms on which the noble Lord and his Lady had lived; but if it were absolutely necessary to go into his Lordship's family for evidence on this point, surely the witness should have been a person who was in the habit of seeing them constantly. But how did the fact stand? Why Mr. Law spoke only of the terms on which they had lived for two years after their marriage; Mr. Law then went abroad, and did not return until the adulterous intercourse had been going on for twelve months. How did Mr. Law find them on his return? Why, Mr. Law said, he found them in the same state of connubial happiness. Then, as to Miss Margaret Steele, the governess, who was the only other witness on this point; she merely said that they lived happily at the period of their union, and that she saw 436 very little of them afterwards. But connected with the evidence of this witness, there was a very remarkable circumstance, which ought by itself to have attracted the attention of their Lordships to the manner in which the case had been conducted. In the proceedings in the Ecclesiastical Courts, this lady stated in her evidence, that Lord and Lady Ellenborough had not cohabited together for some months previous to their separation. Now this fact was not brought out at the bar of their Lordships, although counsel appeared in opposition to the Bill. But was this fact not important? If the conduct of Lord Ellenborough towards his lady were to have any weight with their Lordships, he could hardly conceive a more important fact than this, especially when coupled with other circumstances which bore upon the same point. Let their Lordships consider what the conduct of Lord Ellenborough had been. For twelve months Lady Ellenborough went, in broad day-light, four or rive times a-week, into a public street, at an hour when the streets were most frequented,—and that street being in the immediate neighbourhood of her father's house. She went thus openly, without disguise or attempt at concealment, to the house of Prince Schwartzenberg, where she undressed, went to bed, stayed there two or three hours, and then returned home. What was Lord Ellenborough about all that time? Could their Lordships conceive it possible that any man who had the least regard for the honour of his wife,—who placed the slightest value upon the affection of his wife,—could have failed to arrive at the knowledge of such proceedings? Should a man be never with his wife,—should he never trouble himself to inquire where she went,—how she was spending the many hours of the day during which she absented herself from home? If this conduct of Lady Ellenborough did come to the knowledge of his Lordship, there was an end of the case; if it did not, Lord Ellenborough was guilty of the most culpable want of attention towards his lady. He begged their Lordships to recollect what kind of lady this was: she was very young,—only one-and-twenty years of age,—and said to have been extremely beautiful. He had not the honour of being acquainted with the unhappy lady before her fall, and could not, therefore, say how correctly her personal 437 charms had been described, but it was in evidence that she was only twenty-one years of age, and those who had known her described her as a very beautiful woman. Now he would put it to their Lordships whether any man, with that knowledge of the world which Lord Ellen-borough must be supposed to possess, ought not to have recollected that, if a young and beautiful woman like this were allowed to go about the town, not only without his protection, but totally unheeded by him, there were thousands who would be ready to take advantage of such negligence on the part of a husband. Surely, then, he was not characterizing his Lordship's conduct too strongly, when he called it gross negligence: but when, in addition to this, it was recollected that for some months Lord Ellenborough had not cohabited with the lady, he must say that he thought his Lordship had been guilty of something worse than negligence. He could not apprehend that any noble Lord would differ from him when he said that such treatment, exercised by a husband towards a beautiful woman of one-and-twenty years of age, was cruel as well as negligent. As he before observed, the conduct of Lord Ellenborough towards his lady was the point upon which he was inclined to rest, though there were many other parts of the case which deserved the attention of their Lordships. If his opinion of Lord Ellenborough's conduct were correct, then he apprehended that he had made out a sufficient justification for the opposition which he had felt it his duty to make to this Bill. In all similar cases, the manner in which the husband had treated his wife had been considered by their Lordships as a material point. Their Lordships had been in the habit of considering it very important to have it proved that the husband's conduct towards his wife had been proper, before they granted him the relief he prayed for. Let him refer, as to an historical fact, to the discussions which took place upon the Bill of Pains and Penalties against the late Queen. This would relieve him from the necessity of referring to private cases. In one of these discussions a right reverend Prelate* had thought that the proof of adultery was the essential point. The right reverend Prelate said,—"There were many instances of bills of divorce having
* Bishop of London (Howley) see Hansard's parl. Deb. 1820, vol. iii. p. 1711.438 passed that House, though the conduct of the husband was notoriously reprehensible. The essential point was, the proof of adultery, which he considered to be established, and therefore, in a moral, constitutional, and religious point of view, he felt it his duty to support the (divorce) clause." Now, Lord Lauderdale, who followed the reverend prelate in the debate, said* "The reverend prelate who spoke last seemed to think, that, in ordinary cases, if the fact of adultery were proved, they proceeded to grant a divorce without further ceremony. But that House took especial care, in all cases of divorce, that the husband should be liable to examination with respect to his conduct, in order that it might be ascertained whether or not that conduct had been such as to affect his claim. He thought the bill, with the divorce clause in it, highly absurd and inconsistent. It would certainly be injurious to public morals to allow a person guilty of such conduct as had been proved against her Majesty, to remain as Queen,—to be looked up to as the head of society in the country; but was he, by passing the divorce clause, to declare that the King might conduct himself as he pleased, without having the same check on his conduct as a subject?" Here, then, was clearly laid down the doctrine,—and a very fair doctrine he considered it,—that the conduct of the husband was a material point for consideration before their Lordships granted such relief as a Divorce Bill. Upon the propriety or the impropriety of a husband's conduct depended the success or the failure of his claim to such relief. Again, in the same discussion, when another right rev. prelate † quoted that passage from the Gospel of St. Matthew—"He who putteth away his wife for any other cause than adultery, causeth her to commit adultery."—Lord Darnley asked‡whether the husband, in the case before them, had not actually put away his wife for another cause, and so made her commit adultery, if she were really guilty of that crime? He might be allowed, he hoped, to ask the same question in this case. Allow him to ask whether, in effect, such had not been the conduct of Lord Ellenborough. He did not mean to say, that the conduct of Lord* See Hansard's Parl. Deb. vol. iii. p. 1712.† Archbishop of Canterbury, (Sutton) ibid. p. 1710.‡ Ibid. p. 1712.439 Ellenborough might not be explained. It was possible it might,—but his complaint was, that such explanation had not been given to their Lordships. It was neither accounted for why this unfortunate lady had been allowed to run about the town without a protector, nor why Lord Ellen-borough had not cohabited with her for some months previous to their separation. There was another point of view in which he thought their Lordships ought to consider this case. He did not mean to say, or to insinuate, that there had been connivance between the parties in the present case: but he was quite sure that if there had been, the parties could not have acted more judiciously, or in a manner more likely to attain the common object they had in view. Suppose two profligate persons—their Lordships would see that his hypothesis required they should be profligate—were to make this agreement between themselves,—"You go your way, and I will go mine: please yourself, and I will please myself;" suppose two such persons agreed to shut their eyes to each other's conduct, and to remain silent, the husband reserving to himself the right of coming here for a divorce, if the lady should happen to prove with child. Did not this supposed case come up precisely to that now before them? He could say nothing about what Lord Ellenborough had done, because he knew nothing of the noble Lord's proceedings; but the history of his lady's transactions was in evidence. She pursued her criminal career for twelve months, and it was not until she proved with child that her husband came forward. Then, again, if such an agreement as he had supposed between two bad people had really been made, who would be selected as the favoured lover? Why a foreigner, of course, for obvious reasons. So the choice had fallen in this case; and the very day after the separation between Lord and Lady Ellenborough took place, which was on the twenty-second of May, Prince Schwartzenberg went out of the country. The prince had not since returned to England, so that it had been impossible to serve him with the regular process, and consequently no trial at law had taken place. There was likewise another very curious fact connected with this part of the case. Though Lord Ellenborough had discovered enough of indiscretion, if not of criminality, in the conduct of Lady Ellenborough, to induce 440 him to insist on a separation, yet it was not until a month after that separation had taken place that he instituted an investigation into the conduct of his lady. Mr. Freshfield had told their Lordships at the bar that it was not until the twentieth of June that he received instructions from Lord Ellenborough, and the separation took place on the twenty-second of May. Now he contended that if any two parties had wished to obtain, by collusion, a divorce a vinculo matrimonii, they could not have taken a more effectual course than that which had been adopted in the present case. It did therefore appear to him, that if their Lordships passed this Bill on the evidence before them, they would furnish a precedent in favour of its being a proper rule of action to grant a divorce simply on the ground that proof of adultery on the part of the wife had been brought, and without any reference to what had been the conduct of the husband. Against this he dissented, because the doctrine of that House had hitherto been different. It had always been held by their Lordships, that the conduct of the husband was a material point for consideration, and wisely had it been so held, because every body knew that the conduct of the husband might have amounted to the grossest provocation to infidelity on the part of the wife. That, it was true, was no excuse for the wife; but it was equally true that it materially affected the value of the husband's claim to a divorce. Such was the doctrine of that House; and, taking it to be correct, he rested the justification of his opposition upon the conduct of Lord Ellenborough towards his lady. That conduct had, in his opinion, been highly improper; and unless their Lordships could say that Lord Ellenborough's lady had received at the hands of her husband such treatment as a young and beautiful wife had a right to expect, he confessed he did not see how their Lordships could take any other course than that which he proposed to himself. He had now discharged what he felt to be his duty. It was with unfeigned regret, with deep sorrow, and with the most painful feelings, that he had offered himself to their Lordships' notice in the character of an opponent to this Bill; but it was a bill which he believed in conscience and in justice ought not to pass, and he should feel himself reluctantly compelled to say, "Not Content,"
The Earl of Malmesburysaid, that he rose, with the utmost reluctance, to support the view which his noble friend, if he would allow him to call him so, had taken of this subject. He felt, however, as he trusted all their Lordships felt, that in the discharge of a public duty they must lay aside all feelings of personal consideration, and take with firmness and with impartiality that course which was consistent with equity and justice. He had attended personally during the examination of the witnesses called in support of this Bill, but all their Lordships might be as well acquainted with the evidence as he was, as it had since been printed. With the manner, however, in which the case had been conducted, none but those who had been present could be acquainted. It was true, as the noble Lord had stated, that the case failing as to the identity of the parties, new evidence had been adduced on that point. That new evidence had, he confessed, made a very strong impression on his mind. Let him remind their Lordships that the Bill before them was something more than a divorce, and that, in passing such a bill, their Lordships exercised a dispensing power, placing the applicant in the same state in which he had been before marriage, and absolving parties from the most solemn engagement into which mankind could enter. Deeply impressed with the importance of such measures as these, he had made it his business to inquire how many such Divorce Bills had been passed by their Lordships during the last ten years. And allow him here to observe, that he could not help feeling that nothing was more calculated to injure the morals of that class to which he had the honour to belong, than the belief that Divorce bills were to be procured with anything like facility. Let him beg of their Lordships to recollect that the middle and lower classes were excluded from this species of relief from matrimonial engagements. The expense consequent on the proceeding in such cases shut out all but persons of fortune from the means of instituting them. This of itself formed a distinction not very desirable, between the rich man and the man of no fortune. It was a distinction which ought not to exist. If certain grounds were sufficient for separation a vinculo matrimonii, this relief ought to be within the reach of one man as well as of another. The existence of 442 this distinction, however, was of itself a strong and sufficient reason for their Lordships looking at every application like the present with the greatest care and caution. It was from these considerations, and from it having often struck him that Divorce bills had of late largely increased in number, that he had been induced to call for a return of the number of such bills which had passed during the last ten years, from 1820 to 1830. In the first five of those years there had passed six Divorce bills; in the last five years there had passed twenty Divorce bills. In 1820 there was one; 1821 one; 1822 two; 1823 one; 1824 one: total six. In 1825 six; 1826 three; 1827 three; 1828 one; 1829 seven: total twenty. Now, with this increase before them, he must entreat their Lordships to recollect how necessary it was that they should proceed more strictly and more rigidly than ever in examining the claims of parties who came to that House for Divorce bills. The return he had mentioned must prove one of two things; it must mark either increase of profligacy in the higher classes, or it must prove that their Lordships had afforded greater facilities to parties applying for divorces. Their Lordships might not be able to prevent the former evil, but he must be allowed to say, that a heavy responsibility rested with the House if the latter were the cause of the large increase of Divorce bills during the last five years; because profligacy in the upper classes must increase in proportion as their Lordships made divorces more easy of attainment. After the speech of the noble Lord who had just sat down, it would be unnecessary that he should detain their Lordships by again calling their attention to those points of the case which he, as well as the noble Lord, was anxious should not be lost sight of. He was one of those who thought that the evidence, with respect to the terms on which Lord and Lady Ellenborough lived, was extremely unsatisfactory. He thought that Lord Ellenborough might, could, and ought to have shown that he lived happily with his wife during a certain period. The extensive acquaintance which all who moved in such a sphere as that in which Lord and Lady Ellenborongh moved must possess, could surely have furnished satisfactory evidence of this point, if such evidence were to be obtained at all. But the only witnesses 443 examined to prove the domestic happiness of the parties were a brother of Lord Ellenborough and Miss Steele, Lady Ellen-borough's governess. With respect to Miss Steele, allow him to say that he did not think that a person who had been governess to Lady Ellenborough was the best kind of witness to bring forward in order to prove that Lord and Lady Ellenborough lived happily together. But what else had the governess been called to prove? Why, that Lady Ellenborough admitted to her that Prince Schwartzenberg was the father of the child with which she was then pregnant. He had heard this evidence with disgust; for when the criminality of this unhappy lady might have been, as it was, proved from so many different quarters, why should she be brought here, and be made, through the intervention of her governess, to put in an admission of her crime? He thought this as ill-advised as it was wanton and disgusting. Let him be understood as not meaning to assert that there had been collusion in the present case; but he must observe, that if there had been, the manner in which the case had been conducted, the nature of the evidence, and the want of opposition, where opposition might have so easily been made, were just what one would have suspected to have found in such a concerted affair. Let their Lordships consider for a moment. A husband might say to his wife—"You go and confess all to your governess: she will be examined as a witness, and thus your guilt will be proved beyond the possibility of a doubt." Now, he confessed that he had great objections to this style of evidence; and when the proof of her guilt was established by other means, he did not like to see a person brought forward to increase the strength of evidence, already more than strong enough, by the avowal of the unhappy lady herself. He repeated, that he did not mean to say there had been collusion in this case; but as he always had been, and always should be, on his guard against concert between parties in such matters, he had thought it right to make these observations. Well, then, with the absence of every thing like satisfactory evidence that Lord and Lady Ellenborough lived happily together, there was to be taken into consideration the gross want of attention, for so he must call it, on the part of his Lord- 444 ship towards his lady. She was allowed to go about the town four or five times a week for a twelvemonth—being absent from home many hours a day, and yet never once attended by her husband. She used no disguise; she carried on her intrigue publicly and openly; and in pursuing such conduct she had almost a right to suppose that her husband must and would know of it if he cared anything about the matter. Was this conduct befitting a husband? What, he would ask, were the cases in which their Lordships were accustomed to grant this relief? Why, cases in which a seducer had clandestinely robbed the husband of his wife's affections, and insidiously led her from the path of virtue into the paths of vice. In such cases their Lordships had thought the husband had a fair claim to be relieved from his engagements with an abandoned woman; but such were almost the only cases in which their Lordships had granted relief. Never, that he knew of, had their Lordships entertained the claim of the husband who, through vice or negligence, had delivered over his wife, unprotected, to the dangers of temptation and seduction. He really could not express to their Lordships the sorrow he felt in coming forward on this occasion; but he conscientiously believed that this was a Bill which ought not to pass, and that he should have been wanting in his duty if he had not risen in his place and said so. It was obvious that the defects which he complained of in the evidence might be supplied, and he thought it the duly of their Lordships to insist upon it being supplied, as they had insisted in a similar case which he recollected the Session before last. Before he sat down, he must advert, for a moment, to the conduct of the parties who had appeared at the bar during the proceedings on this Bill. He must say, that he thought the way in which the defence had been conducted was almost an insult to the House. Far better, far more decent, would it have been if no counsel had appeared for Lady Ellenborough. A counsel of ability might have successfully opposed a bill supported only by such evidence as that which had been adduced, but Lady Ellenborough's counsel attempted no opposition: and it was clear, therefore, what his instructions were. He would detain their Lordships no longer than to say, that he should feel it his duty to say "Not Content."
The Earl of Rosslynsaid, that he begged leave, in the first place, to say, that if any one insinuated that there had been collusion in the present case, he should most unequivocally repel such insinuation. The principal objection of the two noble Lords was, that the evidence was insufficient with respect to the terms on which Lord and Lady Ellen-borough lived. Upon that point he was totally at issue with the noble Lords; and when they objected that a relative of Lord Ellenborough was called, they seemed to forget that the relatives of the parties were almost always called, both in cases there and in cases before juries, to prove the terms on which the parties lived. But the noble Lords had also very strangely forgotten, that besides the evidence of Mr. Law and of Miss Steele, there were the letters of Lady Ellenborough herself, which were worth a hundred witnesses upon such a point. He would beg leave to read them to their Lordships; they were sent by Lady Ellenborough to Lord Ellenborough after the separation:—
R—[Roehampton], Saturday night.Forgive me if I do wrong in writing to you. A note just received from Lady Anson seems to imply that you have expected it. I had begun a letter to yon this morning, thanking you from the bottom of my soul for your unbounded kindness in act and manner: it was far more than I deserved, and I am deeply grateful. I again renew all the assurances I gave you last night, that in act I am innocent. I hardly know what or how to write to you. I dare not use the language of affection: you would think it hypocrisy. But though my family naturally wish all should be again as it once was between us, those feelings of honour which I still retain towards you make me still acquiesce in your decision. I continue to think it just and right. I have not been able to speak to them on the subject I confessed to you last night. I have spoken little to-day, but have never for an instant swerved from my own original opinion. I write this to you. If it is possible, for you to keep what I have said from them, do; as they would only set it down as another proof of unkindness on my part. Could you write me a line, through Henry, were it only to tell me your opinion, be assured I should think it right. But, oh! Edward, dear, dear Edward! ought not time, solitude, and change of scene, to be tried by me, to conquer or obliterate sentiments so inimical to our mutual peace? Pray write to me all you think upon the subject—all you wish me to do. I will now answer you candidly, and without a shade of deception. God bless you, dearest Edward. JANET.If my aunt has misunderstood any expres- 446 sion, and you did not expect or wish to hear from me personally, forgive me; although I long to tell you how gratefully I feel towards you, yet I confess I should never have ventured to write. Ever yours.[Envelop subscribed.]To the Lord Ellenborough, &c., Connaught Place.My dearest Edward,—I know you will believe me when I say I feel myself utterly unequal in writing to you to-day. I cannot thank you for your kindness, but entreat you will not think of making me such an allowance; indeed it is more than I can possibly want. I will send back the green box to-morrow morning.—Ever, ever yours, JANET.In addition to this there was the evidence of Mr. Law, which, he conceived, was sufficient to bear out that part of the case. If they looked to the other parts of the case, as brought forward at their Lordships' bar, he thought that no negligence could be imputed to the learned counsel who had opened it, and who had called as much evidence as he conceived the case required. It was proved by that evidence that a foreign gentleman went in the middle of the night from his room to the room of Lady Ellenborough, at Brighton, and remained there three hours; so that no doubt could be entertained of the adultery. Then, as to the question of identity, it appeared to him that that identity was sufficiently made out, even if they had not the confession of the lady. It was not to be inferred, because the carriage in which Prince Schwartzenberg went to Croydon was a plain one, that therefore there was a great difficulty in identifying it. Their Lordships had it in proof at least, that it was a yellow carriage,—that it was hired from a particular coachmaster,—that it was driven by a certain post-boy—that it left town on the 6th, and came back on the 7th, of May,—that it carried Prince Schwartzenberg as far as Croydon,—and that the prince directed the driver not to tell his name to the other post-boy. All these circumstances raised the presumption of identity. But then came the subsequent acknowledgment of the lady herself, when in a state of pregnancy, to her governess, which placed the matter beyond all doubt. But the noble Earl, it seemed, would not admit that confession as evidence.
The Earl of Rosslyn,in continuation, contended that there were innumerable 447 precedents of the kind in every court in the kingdom. The demeanour of an individual when questioned on any subject that afterwards underwent legal investigation, was always admitted as evidence. As to the fact of the adultery there could be no doubt about it. The groom proved where he was in the habit of driving her ladyship; and the proceedings which took place in Harley-street were watched and described, thus placing the matter beyond question. Then the case resolved itself into a question of collusion. With respect to that, certainly, so far as he attended to the evidence, and he did so from beginning to end, he thought there never was a case in that House which had less appearances that could give rise to the suspicion of collusion than this case had. And, in his opinion, no man who looked fairly at the evidence, could come to any other conclusion. How was Lord Ellenborough situated? When the lady went to her mother's at Roehampton, Lord Ellenbornugh did not believe her to be guilty. She went from that to Ilfracombe, with Miss Steele, and it was then the belief of her family that the parties would come together again, Lord Ellenborough at that time believing in her innocence, which was a very important fact in the case. Before their Lordships proceeded, on general principles, to refuse the relief that was sought for, they ought to weigh well the consequences of such a step. Because, in the first five years to which the noble Earl alluded, there had been six Divorce bills, and in the last five years twenty Divorce bills, were they to come to the conclusion that such facilities were afforded for procuring this species of relief, that people had nothing to do but to come to that House, and, by connivance and collusion, effect a separation? Were they to act upon such a principle, merely because it was just possible that corrupt and fraudulent means might be resorted to? They might as well declare that they would not believe direct evidence on any subject, because perjury had been sometimes committed. Except noble Lords were prepared to state specific facts, on which they could fairly ground a charge of collusion, he conceived it was not fair nor right to assume, or rather to insinuate, its existence. They then came to the allegation of the negligence or ignorance of Lord Ellenborough with respect to the conduct of his wife. Now any person living in this great town must know that it would be absolutely impossible for 448 Lord Ellenborough, situated as he was, to go to the different places which his lady might have frequented. It was made a matter of charge against Lord Ellenborough that he did not go out with his lady. But it ought to be recollected that his Lordship was engaged in public duties which took up the greater part of the morning. He had no reason to distrust her; and was it to be expected that he would abandon his public avocations to watch his young wife, whose conduct was at the time unimpeached? Did not the noble Earl think it possible that Lord Ellenborough, while discharging the duties of his office, might believe that his wife was visiting at her mother's, and feel no apprehension on that account? It was considered as an extraordinary matter that he did not hear the reports which were flying about. But surely it was perfectly well known, that in these cases the husband was generally the last person who heard of his wife's dishonour. Under all these circumstances, he trusted that he should have the concurrence of their Lordships in support of the Motion for the third reading of this Bill.
The Earl of Malmesburywished to explain. He had never said that he disbelieved Mr. Law's evidence. What he said was, that twenty persons might have been selected who could have spoken of the terms on which Lord and Lady Ellenborough lived much better than Mr. Law. That gentleman left England on the 3rd of March, 1827, and did not return till the 29th of March, 1829. Therefore he, for one, did not think that Mr. Law was so competent a witness as many other persons who might have been brought forward. With respect to the letter which had been read, he begged leave to say, that he was present when counsel opened this case; and what did he say with respect to that letter? Why, he stated, that there was a manifest contradiction between it and her subsequent confession. In the letter she declared that she was not criminal to the extent imputed to her; but, in her confession to Miss Steele, she fully admitted her guilt. Now, when he found one fallacy in that letter, why might he not suppose that other parts of it were drawn up to meet a particular purpose? He therefore placed no reliance on that letter.
§ Lord Wharncliffesaid, he had paid the utmost attention to the evidence in this case, and it appeared to him that a stronger 449 case of adultery could not be made out. The noble Earl opposite, and the noble Earl behind him, while they opposed the Bill, admitted, that so far as the establishment of the case of adultery went, there could be no doubt on the subject. On what grounds, then, did they refuse that relief which Lord Ellenborough claimed? The first was, because it was not proved that he lived on terms of sufficient harmony with his wife. In his view of these oases, it was not necessary that the domestic happiness of the parties should be proved before their Lordships. In a court of law, indeed, such proof was necessary, and for this plain reason—because there the husband sued for damages, and the amount of damages must depend on the extent of the injury done to him. If, therefore, the plaintiff could not show that he lived on good terms with his wife, his loss would be considered so much the lighter, and the damages would be diminished in proportion; but where he was enabled to prove that his domestic peace and comfort had been destroyed, then, on the same principle, the damages would be enhanced. What, he asked, would be the consequence, if the House were to act on the doctrine laid down by the two noble Earls? He would suppose a woman with a very bad temper, in consequence of which she and her husband lived unpleasantly and uncomfortably together. Was she, therefore, to go into the streets and intrigue with every individual she took a fancy to? And if she did, would the House refuse relief to the husband because he could not prove that he had lived affectionately with her? In this case Lord Ellenborough could not bring the individual who had injured him into a court of law, because he was not in this country. Therefore the terms on which Lord and Lady Ellenborough lived did not appear so fully as would have been the case had a trial taken place. But if proceedings had gone on in a court of law, there was sufficient evidence laid even before their Lordships to ensure damages. They had the evidence of Mr. Law, and they also had the confession of the lady. And, so far from her letter to Lord Ellenborough weakening his Lordship's case, as the noble Earl opposite seemed to contend, it did, in his opinion, strengthen it materially. The other ground on which the two noble Earls had expressed their hostility to the Bill was the apparent neglect of Lord 450 Ellenborough, with respect to certain visits paid by his lady to Prince Schwartzenberg, in Harley-street. Now, he wondered that they should endeavour to fix on Lord Ellenborough a charge of neglect. Was there a single Peer who then heard him who did not know that their wives generally went out about two o'clock in the day, and returned at five? And were they to suspect that in so going out, they were actuated by improper motives? Were they, without any intimation being given of impropriety on the part of their wives, to watch them, or to cause them to be watched? The place, also, to which Lady Ellenborough proceeded, was, of all others, the least likely to excite suspicion. It was in Harley-street that Prince Schwartzenberg resided; but the family of the lady likewise lived there. If Lord Ellenborough asked a question of his servant, as to the absence of his lady, he would be answered that she had gone out to Harley-street; and were they to suppose that Lord Ellenborough could imagine that she had proceeded thither to visit Prince Schwartzenberg? On the 23rd of May his suspicion was first excited, and he spoke to Lady Ellenborough on the subject; but what then occurred between them their Lordships did not know. It appeared that up to that time his Lordship entertained no suspicion that his wife had committed adultery. The consequence was, that he sent her away to her parents. His noble friend said, it was not until the month of June that Lord Ellenborough took any pains to ascertain his wife's guilt, or rather to obtain evidence against her, on which he might act. But it appeared that very considerable difficulty arose in procuring evidence. As to the seeming neglect of Lord Ellenborough, he must be allowed to say, that there was scarcely a man who had any connexion with public life, or who, indeed, had any business to perform, but must necessarily be absent at times from his wife, and he must intrust his honour to her own discretion and her just sense of propriety. There was nothing in Lady Ellenborough's conduct that excited suspicion for a considerable time. If she had been observed about the streets at an unusual hour, it might have created suspicion; but she selected precisely that time when it was common for fashionable people to go abroad. And forming his determination solely from the evidence which had been heard at their 451 Lordships' bar, he certainly should vote for the third reading of the Bill.
The Lord Chancellorfelt himself called on to trespass on their Lordships very shortly, while he made a few observations in reply to the objections urged against the Bill by the noble Earl near him, and by the noble Earl opposite. This bill was founded on an allegation of adultery—and it was brought in, in consequence of the fact of adultery having been sufficiently substantiated. That adultery, as had been justly slated by the noble Baron who had just addressed their Lordships, was proved so clearly and unimpeachably, that nobody who had heard the evidence could for a moment doubt the fact. But then it was stated, that it was necessary that the preamble should be proved, or, in other words, that evidence should be given that the adultery had been committed with a particular individual. The noble Lord who spoke early in the debate said, that though he felt no doubt in his mind as to the fact of the adultery having been committed, yet there were points of a doubtful nature connected with the case which ought to have been cleared up. He, however, thought that quite sufficient had been proved to authorize their Lordships to proceed. That which occurred at Brighton had been most clearly and unequivocally established; and he thought, independently of Lady Ellenborough's confidential communication to Miss Steele on that subject, that it was proved, and even beyond a doubt that it was Prince Schwartzenberg who slept with Lady Ellenborough at Brighton: though that fact was confirmed by the private and confidential communication of Lady Ellen-borough herself. But he did not wish to rest on that evidence, as to the proof of adultery, particularly as other facts were stated by counsel at their Lordships' bar. Their lordships, he was sure, would agree with him, that the adulterous transactions which took place in Harley-street and Holies-street were distinctly and clearly proved; and on these occasions the identity of the lady, not of Prince Schwartzenberg, was unequivocally substantiated. The evidence placed that matter beyond a doubt, if their Lordships believed' the witnesses. Those witnesses spoke of seeing the same lady driven by a particular individual to Prince Schwartzenberg's. That individual was called to their Lordships' bar, and he stated, that he had 452 driven Lady Ellenborough to Harley-street, in a coach of a peculiar kind; and his identity, as the driver, was deposed to by another witness. He would say no farther on this part of the subject, because the noble Earl himself was obliged to admit the identity of the lady. Then it was said, that no evidence was given to show that they lived happily. With respect to this point, he would pass over the evidence of Mr. Law, because he was out of the country from March 1827, to March 1829. But who was the other witness? Why, the individual who had educated Lady Ellenborough, and who continued in habits of the greatest intimacy with her up to the time of her giving her evidence at their Lordships' bar. She stated, that up to the period when this adulterous intercourse was discovered, they were living together on the most harmonious terms. Such was the evidence of Miss Steele. But they were told, and gravely told, that because the ladies of the family were not called to give evidence on this point, that therefore the proof with respect to it was not perfect. Now that was not the issue before their Lordships' House. In a court of law, where damages were sued for, it was necessary to show what degree of affection and harmony had subsisted between the husband and the wife. Therefore that issue was tried; but that was not the case when a party came before their Lordships and sought for a divorce. Then it was insinuated that there was connivance on the part of Lord Ellenborough: but what proof, he demanded, had been given of connivance, at their Lordships' bar? It was shown, that for five or six months this lady was in the habit of going to Harley-street, where, be it observed, her family resided; and because a person had not been appointed to watch her, Lord Ellenborough was therefore accused of conniving at his own dishonour. But in what situation was Lord Ellenborough placed? He was, at the time, an active member of his Majesty's Government; and those who were connected with the Government knew that at that period no person could be more anxiously attentive to the discharge of the duties of his station than Lord Ellenborough was; and unless some hints were thrown out to him—unless some person gave him information on the subject—it was impossible for him to have entertained that suspicion which it was said he ought to have entertained. 453 Then, it was asserted, that there was collusion in this matter, which appeared from the nature of the evidence at their Lordships' bar. He could not agree to any such assertion. Allusion had been made to a letter addressed by Lady Ellenborough to Lord Ellenborough. To that letter he would call their Lordships' attention; and he did think that every noble Lord would feel, on strictly examining the contents of that letter, that they entirely did away with the imputation of any collusion having been practised. He hoped their Lordships would indulge him while he read that letter; and he was sure that no man who knew the workings of the human heart, who could distinguish between sincere and feigned feeling, could think for a moment that that letter was written for any purpose of collusion in this case. The noble and learned Lord proceeded to contend, that no man who considered that letter calmly and dispassionately could suppose that it was written in consequence of a plan of collusion with Lord Ellenborough. It was written after Lord Ellenborough had discovered the levity of his wife's conduct, but before he was aware of the extent of her criminality. But then it was said, that the declaration in the letter was contrary to what she had confessed to Miss Steele. But where, he demanded, was the force of that argument? It was true that the lady did not confess her guilt to her husband—a circumstance not, as it appeared to him, very unnatural. But when, and to whom, did she make this disclosure? She made it in the hour of privacy and confidence—she made it to her governess, her most intimate friend—she made it after her pregnancy was discovered. It was then she admitted her intimacy with Prince Schwartzenberg. Now, with respect to the supposed collusion, he would briefly state what the conduct of Lord Ellenborough had been. When he separated from his wife in the month of May, and sent her to Rochampton, he did not then think her guilty. He was not apprized of that fact till she arrived at Minton, a month afterwards, when her pregnancy was discovered. What did he then do? In the month of June he applied to his solicitor, Mr. Freshfield, who immediately set about collecting evidence. Whoever knew Mr. Freshfield must be aware of his vigilance, activity, skill, and knowledge, in the discharge of the duties of his profession. Now, if there had been 454 any collusion between these two parties, would not Lady Ellenborough have immediately given decided evidence to Mr. Freshfield, in order to enable him the more readily to effect that object which was prayed for at their Lordships' bar? But what said Mr. Freshfield? He declared that he was a whole month in procuring evidence before he could bring the case into the Ecclesiastical Court with any prospect of success [hear]. He would therefore say that this charge of collusion rested on nothing but the bare assertion, or rather insinuation, of the noble Lords. Therefore the adultery not being denied—the identity having been proved in evidence—no charge of connivance having been sustained—and the inference of collusion not having been in any way supported—he entertained a confident hope that the third reading of this bill would be carried by the unanimous vote of their Lordships, [hear]
The Earl of Radnorsaid, that it was in vain to hope for a unanimous vote in favour of this Bill; for he certainly should oppose it on the grounds he had stated. He wished to state that he had formed his opinion of the measures solely by the evidence he had heard in that House, and knew nothing of the reports prevailing out of doors. He denied that he had imputed collusion to Lord and Lady Ellenborough; what he said was, that if the parties wished for collusion, they could not have acted in a way more fit for their purpose than they, had done. If their Lordships' passed that bill, they would preclude themselves from ever again rejecting similar bills; and he was sure that principle would be contrary to their Lordships' usual course of proceeding. He did not look to have that kind of affection proved at their Lordships' bar which was necessary to entitle a man to relief in a court of justice; but he expected that parties coming there to ask for a divorce should be able to prove that they had done nothing to cause the injury of which they complained. To have that justification of such a demand, a man should at least be able to shew that he had treated his wife with affection, and kindness, and attention. But could there be any affection in the case, when, for twelve months before the parties separated, Lady Ellenborough was in the habit of going two or three times a week to the lodgings of Prince Schwartzenberg, for the purpose of prostituting herself, doing it even in the most indecent manner, often 455 with the blinds of the room drawn up, while she went to bed for several hours during the day? Could there be affection in such a case, and this to be going on for a whole year? These were circum-stances which weighed more in his estimation than the testimony of Mr. Law, who had, in fact, seen very little of the parties. As to the letter so frequently alluded to, it contained one palpable falsehood, one hypocritical assumption, at least, and therefore it was rather to be taken as a whole piece of hypocrisy, than, as the noble and learned Lord described it, the effusion of genuine feeling. That letter was written after the lady was three months gone with child by her paramour, and after she had been carrying on an adulterous intercourse with him for a whole year. Moreover, he remembered that the learned Counsel said, on opening the case, that this letter was written with a view of preventing Lord Ellenborough from fighting with Prince Schwartzenberg. It was obviously, therefore, altogether a letter got up for the purpose, and having such an opinion, he could attach no weight to its soothing and flattering expressions of kindness and generosity. He would only allude to one other circumstance. Miss Steele stated, that she had informed Admiral Digby, that the parties did not cohabit together, and that Lord Ellenborough had declared that he would never acknowledge the child as his. In conclusion, he affirmed, that he meant to bring no charge of collusion, but the evidence was not sufficient to justify their Lordships in passing the Bill, and therefore that he could not vote for it.
The Lord Chancellorthen put the question, "that the Bill be read a third time." There were some cries of "Not Content," but the Lord Chancellor declared that the Contents had it. No division took place, and the Bill was read a third time and passed.