Lord Broughamsaid, that in moving the Second Reading of the Bill relative to the Appellate Jurisdiction of the Privy Council, which he had introduced a few days ago, he should address their Lordships as shortly as the nature of the subject and its great importance would permit. His observations would come un- 692 der two heads,—first, with respect to the constitution of the Judicial Committee of the Privy Council, and next with reference to the object of the Bill then before their Lordships. It was perfectly true, that the Judicial Committee of the Privy Council had given general satisfaction to the suitors, and it was admitted that it was exceedingly well adapted to meet the objects for which it was originally formed. He should first observe upon the constitution of the Committee. It consisted of a certain proportion of Judges, of the present Lord Chancellor, and others who had been Chancellors, of the Chief Justices of the three Courts of Common Law, of the Vice Chancellor, and several other learned Judges, as well as of the Judges of the Admiralty and Arches Court, and they had a power of calling in as assessors certain Judges who had belonged to the East India Bench. That Court had been found to work well, and had been productive of great public advantage in hearing the numerous questions which came before it—questions of very different natures, and often embracing various interests of vast magnitude. In dealing with these various questions the Court was called on, not only to administer the law in Admiralty cases, and cases which came under the law of the Ecclesiastical Courts, but it had also to administer at one time Dutch law, at another time French law, at another time the Roman law, at another time a mixture of those laws, at another the laws and customs of India, and they were called on to do this in cases, such as in our colonies or possessions abroad, where the interests affected were very important. The range of their Jurisdiction was most extensive. Before them came cases connected with the Admiralty Court, the Ecclesiastical Courts, the Equity Courts, and the Courts of Criminal Jurisdiction. Before them were brought affairs of life and of property between man and man. But in every instance they were enabled to consult and to take the opinion of those Judges who presided over these different branches of Jurisprudence. But, independent of causes arising in this country, when it was considered that we had twenty-nine colonies (with their hundreds of thousands of subjects), from which various legal questions were brought on appeal to the Judicial Committee, added to which there was India, with a population which we did not count by hundreds of thousands but by millions, and when it was borne in mind that not only ques- 693 tions as to the right of territory of villages but of a whole Zeimandary, with an extent of territory almost amounting to a kingdom—when these things were considered, it was natural to suppose that questions of vast importance and no small difficulty were continually under the consideration of the Judicial Committee of the Privy Council. He recollected it to have been his duty to give judgment in a case where property to the amount of 800,000l. or 1,000,000l. was at stake. Where interests so great were submitted to their decision, they ought assuredly to render the tribunal as perfect as possible. Now admirably constituted as this tribunal was for great causes by its powers of adaptation, of calling in the aid of any judges most conversant with the subject matter, it was ill-adapted to despatch ordinary business by the way of judges constantly sitting. It was like Addison, who said, he had not a shilling in his pocket though he could draw for a hundred pounds, alluding to his want of conversation on ordinary topics. The noble and learned Lord then referred to tine nature of the Bill. It was, he said, calculated to give to the Court a permanent President; but it was calculated to do what was of still greater importance—to supply a deficiency, which he was sure the country would not object to do, and which had arisen in this manner:—When the Court was originally constituted, two Common Law Judges were placed upon the Privy Council and made Members of the Judicial Committee, viz., Mr. Baron Parke, who, in consequence of the present state of business in the Common Law Courts, was unable to attend, and Mr. Justice Bosanquet, who had retired from the Bench, after a most distinguished professional career. The consequence was, that the Committee were thrown upon the assistance of his noble and learned Friend (Lord Campbell) and his right hon. Friend Mr. Pemberton Leigh. Their assistance was entirely voluntary and gratuitous, and to demand it the public had no manner of right whatever. This was a deficiency which ought to be supplied, and which he thought might be done by adding to the Court two Puisne Judges, who could, of course, be moderately paid. Into the details of this part of the case he would not now enter, particularly as the subject would be more properly one for the consideration of the Select Committee. He now came to deal with a most important part of the statement which he had to make to their Lordships. He should say nothing about the 694 addition to the powers of the Judicial Committee of the Privy Council in matters of Patent. The Patent Jurisdiction which had been conferred on the Committee of Privy Council in 1835 had worked well, and all agreed thas it might be advantageously extended in the way mentioned on the discussion of Lord Dundonald's petition the other day. But that was not the only matter being both legislative and judicial in some sort, which could properly be referred to the Judicial Committee. He considered that divorces might, with very great advantage to all parties, and to the public at large, be referred to the Judicial Committee. Their Lordships were aware that at present that Committee formed the last appeal in cases of divorce à mensa et thoro; he wished that it should be the tribunal in which cases of divorce à vinculo matrimonii should be adjudicated. Divorce was a matter altogether judicial in its character; and though Divorce Bills were called Acts of Parliament, they were by no means like measures of a legislative kind, and should therefore be referred to a Judicial Tribunal. This transfer of the Jurisdiction, under proper regulations, would have the effect of saving a vast proportion of the expellee, which now attended the separate legislation necessary for every divorce à vinculo, and removing most of the other difficulties, inconveniences, and vexations thrown in the way of an injured husband seeking to relieve himself of an adulterous wife. The Law of England said, that marriage was not to be dissolved, and the remedy at present afforded in cases of adultery was not at all inconsistent with that principle which required a new law to be passed in particular cases and in particular circumstances. But the remedy was at present exclusively confined to the rich; no poor man, no man even of moderate fortune could avail himself of it. England was, in this respect an exception to all other Protestant countries. In Popish countries the whole question stood upon a different footing—the Church allowing of no divorce, because it regards marriage as a sacrament which we do not. Whether in those countries there was less adultery or not he could not say. But of Protestant countries this was the only one where so extraordinary a state of the law existed. In foreign countries where marriage was held to be (as here) no sacrament, and where further it was not held, as it was here, to be indissoluble, the punishment of the adulterous party, and the relief of the injured person, by full divorce, was, 695 upon sufficient proof, available without any great difficulty; and such was the case, also, in Scotland. How stood the case in this country as to full divorces? For 135 years preceding the year 1835, the number of Divorce Bills passed was only 170, an average of only about 1¼ per annum, or five in four years. In the last five years, the number had been much higher, there having been on an average nine every year. Now, if these one and a quarter Divorce Bills, or even these nine Divorce Bills per annum, represented the actual number of cases in which divorce was called for by adultery, the fact would be one of the most gratifying description, and we might well pride ourselves upon the unexampled morality of the English people—but he greatly doubted whether such was the fact. When he looked at Scotland, with a population of only one-eighth that of England, and with a standard of morality certainly not inferior to ours, he found that the average of divorces there, in the last five years, had been seventeen instead of one and a quarter, or fourteen times more than those in England; but did this prove that the people of Scotland were less moral, chaste, and religious than those of England? By no means; it only showed that the expence in the one country was very different from what it was in the other. In Scotland, a divorce à vinculo, where the parties resided in Edinburgh, might be obtained for 25l.; where the witnesses had to come from the country, it was 35l., or thereabouts. Here in England, such a divorce, when the suit was not opposed, cost from 500l. to 600l., or 700l.; when opposed, it cost from 1,000l. to 1,500l., or 2,000l. Now, was this a remedy open alike to the rich and the poor, or was it not rather a remedy from which all but the rich were excluded? As to the previous proceedings in Doctors' Commons, he (Lord Brougham) altogether objected to them as futile and expensive. The interrogatories there were no check to collusion, no sifting of the true merits of the cases, no evisceration of evidence, no security against fraud. As a practical illustration of the gross defects and injustice of the present system, he would mention the case of a professional gentleman who, having the misfortune of an unchaste wife, had first proceeded against the adulterer, and obtained a verdict, and then against his wife, and obtained a decree of divorce â mensa et thoro. Every step of the proceeding was attended with difficulty, and vexation, and fearful expence. His 696 expence began with a bill to his own proctor; she, under the advice throughout of her paramour, a professional man, met this by an opposition which run him up another bill, the heavy expense of which had to be defrayed, not by her or her paramour, but by the injured husband, who had to pay the costs both of his own and his wife's proceedings—for such is the law. He succeeded in this stage. The wife then appealed to the Dean of the Arches, at the expense, as before, of the husband, and the husband had to pay the expenses of that appeal—the tables being turned, he being made the defendant, and having here as before to pay both bills. Well; but he succeeds a second time. Then they appeal to the Judicial Committee of the Privy Council; the Court of Delegates and the Commission of Review having been abolished, that Judicial Committee of the Privy Council had become the Supreme Court in such cases. It already possessed an appellate jurisdiction à mensa et thoro, but he proposed to transfer to it an original jurisdiction à vinculo matrimonii. But, to go on with the case. The husband succeeded again in obtaining a confirmation of the sentence of divorce à mensa et thoro, and had to pay for his wife's appeal and his own resistance to it; but by this time his means were so exhausted that he had not the money necessary for coming before their Lordships for that remedy which his wrongs demanded—a full and complete divorce à vinculo matrimonii, from a brazen, worthless woman. Nor was this all. During the whole proceeding (and the wife and her paramour had managed, by the aid of the law, to protract it over no less than five years), the same law had compelled the unhappy husband to allow alimony to his wife and her paramour—not to her paramour, certainly, but he, of course, participated—it was, of course, that the husband should allow alimony, so that all the time the guilty parties were actually living upon the means of the man they had so injured. He got rid of this expense, of course, at last, but then he had no 1,000l. or 2,000l. to prosecute his case before the House of Lords, opposed as it would have been by the other parties, nor even the 500l. or 600l. which a divorce, even if unopposed, would have cost him. And, accordingly, up to the present time, he was not sure at any moment but that some butcher's or baker's bill might be brought in for "necessaries" supplied to his wife, for such she still was; and though the decision he had obtained 697 would ultimately be a bar to such a demand, yet he might be greatly annoyed in this way. There was another thing to be observed. Suppose—and the supposition was very probable—that an estate in fee simple or fee tail say of 3,000l. a year should devolve upon him, and he were to the before he had procured a divorce à vinculo, which proceeding would require the best part of a year, in that case, dowry not being barred by a divorce à mensa et thoro, the abandoned wife might become entitled to 1,000l. a year to spend with her paramour. It was impossible to conceive a more unsatisfactory state of the law than this, one running more counter to all rational principles, sinning more grossly against all justice, more frequently violating every principle of equity which the law ought immovably to adhere to, departing more utterly from that equal justice which should be dealt out between man and man, and equally to all the different classes of the community: more unfair and oppressive towards the poor man, because he is poor; more calculated to shelter the rich man, merely because he is rich. What more certain means of encouraging immorality could be devised than that of sheltering criminals from the consequences of their crimes, and tormenting the innocent sufferer because be has not money enough to purchase the whole remedy which the Legislature would otherwise dole out to him? The very delay, the very waiting for the progress and termination of litigation, was the sure means of perpetuating and propagating the offence, as in the instance of that profligate woman, whom he had mentioned without naming her, who flew in the face of all decency and all truth, and appealed to the Dean of the Arches. What did such persons say when thus attempting to palliate their crime, and to set traps perhaps to get money from the victim of their conspiracy? Upon what did they make their calculations and build their hopes? "Oh! he can't proceed against us—he is not a my Lord This, or a Sir William This, or a Mr. That; he is not a man of 5,000l. a-year; he cannot go into Doctors' Commons, or to the Houses of Parliament, and pay away thousands for a divorce Bill. Therefore we can do as we like: and if he proceed we shall get our alimony for five years. It will cost him perhaps 5,000l., and after all he may be foiled in the end." And this was the inevitable consequence of the present system. But to go back to Scotland. Did any mortal man believe that 698 there was more adultery in Scotland than in England and Ireland? It was ridiculous to suppose that. The fact was notoriously the contrary. The crime hardly existed there at all. Yet, with a population of only two-and-a-half millions of people, there were seventeen divorce Bills in one year, and only nine for the rest of the Empire; that was fifteen times more divorce Bills in the one country than in the other. He had consulted with eminent Scotch lawyers, of great practice, and they had assured him that the crime of adultery was of very rare occurrence, and they asserted that there was hardly known such a tiling as adultery not visited by a judicial sentence and by the divorce of the woman; an object which in England, except in rich cases, was scarcely to be obtained. Did their Lordships, the Corinthian capital of society, the choice Aristocracy of the land, the Patrician order of Great Britain, think so meanly of themselves and their morals, as to suppose that adultery was confined to their own class? If so, they were unhappily most mistaken in their self-abasement. Constantly were applications made to the legal profession, by persons in the poorer classes, who complained of the infidelity of their partners, often under most aggravated circumstances; but all such were effectually precluded from obtaining justice by the present most unequal state of the law. Why, then, commit the worst of all errors, and carry candour to so ridiculous an extreme as to pretend—for it would be only pretence—that their Lordships and their families were morally more impure in respect to this matter than those who were far inferior to them in society? The case of the poor man was peculiarly hard. Their Lordships could watch over the education and moral training of their families; they could command both the leisure and the means of so doing; but the tradesman, who was compelled to go to his shop, or the artizan, who must attend to his work, was forced to leave the children of his marriage with the woman who had dishonoured his bed, or to strangers and servants, or peradventure, to the care of the parish. Now, the object of the Bill he was introducing was to relieve all those parties who suffered injustice under the existing law; but those parties were not the only parties who ought to complain of the present state of the law. He proposed to transfer the jurisdiction in cases of divorce à vinculo nuttrimonii to the Judicial Committee of the Privy Council, but still to maintain the prerogative of 699 their Lordships' House. The party would be required to present a petition to that House, a petition which would cost nothing, praying the House, with the consent of the Crown, to refer the case to the Judicial Committee. But, he said, their Lordships had a right to complain of the state of the law as well as other parties, for anything more unsatisfactory than the manner in which business of this kind was conducted he could not recollect. In another House the expense was quite as great, but the business was a mere mockery; nobody attended to it. He was told that since he had left that House they had ceased to examine the witnesses as before; a copy of the evidence before their Lordships' House was merely sent in, and it was all a mockery together. If, however, the proceedings were carried on by the Judicial Committee, as he proposed, the effect would be a more close and satisfactory sifting of the evidence, and a greater security against collusion, and perjury, and fraud. That Committee would also have the assistance of the Consistorial Judges, who would discuss the inferior and trifling matter of divorce à mensa et thoro, and examine the witnesses viva voce, in the presence and through the instrumentality of the counsel for the parties. It would be seen, hereafter in Committee, whether they would require that which he considered as worthless, the divorce mensa et thoro in Doctors' Commons. Therefore he had said nothing of it in the Bill, leaving the Judicial Committee to call for that sentence and evidence in the Court there, as their Lordships did, generally speaking, though not compelled to do it. There were other provisions in the Bill. Divorce Bills, in adultery cases, were not the only judicial matters arising out of the present system of legislation. Estate Bills and Naturalization Bills might also be referred to the Judicial Committee with advantage. Therefore there was a general provision to enable either House of Parliament to send to the Judicial Committee any matter they thought fit, with the consent of the Crown, to be obtained by an Address. Undoubtedly, the effect of all this would be a great increase of business in the Committee; but if he was right in holding that the remedy of divorce at present was inaccessible, on account of the expense, and the delay, and the difficulty, then they ought to rejoice in the prospect of entirely altering that state of things, and rendering remedial measures in the cases mentioned easily attainable, and the increase of divorce Bills would be a 700 great benefit as showing that a needful remedy had hitherto been withheld and now was granted to the subject. There were several additional clauses suggested by practitioners which might make improvements in the practice of the Judicial Committee; but he should leave details to be dealt with in Committee. He thanked their Lordships for their attention to his address, and would conclude by asking them to agree to the second reading of the Bill.
§ Lord Cottenhamobserved, that he should like to hear the opinion of his noble and learned Friend on the Woolsack before be proceeded to offer any observations to the House.
The Lord Chancellorsaid, that after the appeal just made to him by his noble and learned Friend he would shortly state his view of the subject, but in doing so he wished it to be understood, that by assenting to the Motion to refer this Bill to a Select Committee, it was not by any means his intention to pledge himself to the support of the principles involved in it. He would first state his views with respect to the machinery—if he might so term it—of the Bill for the remodelling the construction of the Judicial Committee of the Privy Council. Whenever the subject had come before the House, either when he was in or out of office, he had always stated his opinion to be, that there should be a fixed head to this tribunal; he therefore thought that it would be desirable, that this Measure should be sent to a Committee up stairs, with the view of considering whether such an arrangement should take place, and if so, what provisions should be made. He repeated that he retained his former opinion, that in every tribunal for the administration of justice, there should be a fixed president; and emphatically so in this case, for in this tribunal, where so many systems of law were administered, it was most desirable that a person should preside, who would devote his whole time to making himself master of the various systems of law that came under consideration. At present it was merely a voluntary Court, and the Judges, though summoned, might attend or not, at their pleasure. His noble and learned Friend, who attended that tribunal in a judicial capacity, attended most constantly and zealously to the business brought before them; but it did not follow that this would always be the case, and the time might come when it would 701 become necessary to ask for the appointment of regular Judges in this Court. He, therefore, thought it proper, with regard to this subject, that the Bill should be read a second time and submitted to a Select Committee. As for the question of extending the duration of Patents, he confessed that he had not made up his mind on the subject; and he conceived that the point might well be considered in Committee up stairs. The jurisdiction at present given to the Judicial Committee of the Privy Council with regard to Patents had worked extremely well, and it was well worthy of consideration whether it could not be enlarged with advantage. As for the other and very important question of Divorce, he must say, that it was as important a question as could come before Parliament; and he did not wish to be called upon to express an opinion on the sudden on the subject, as the question was one attended with so many difficulties, that he was most anxious not to go into the subject without having had an opportunity of considering the matter. His noble and learned Friend, however, should recollect, that by assenting to this proposition to refer the Bill to a Committee, he did not hind himself to its support at any future period. The observations of his noble and learned Friend (Lord Brougham) on the subject of Divorce, were entitled to the fullest attention; but till he saw and examined the details of the proposed plan, and had considered how it was to work, and had compared the proposed new system with the actual system, he could not express an opinion on a measure of such vast importance; therefore, as a member of Her Majesty's Government, he was willing to agree to the second reading, and to referring it to a Select Committee, always reserving to himself, and not being fettered by what then took place, as to his future opinion on this important subject. He, however, would caution their Lordships not, on any ground, to part with the judicial authority which they now possessed, or to consent to transfer it to another tribunal, for, if they did, they might depend upon it that their political authority would soon follow in the same way.
§ Lord Cottenhamfelt glad that he had given way to his noble and learned Friend who had just addressed the House, for after what had fallen from him he considered it would be unnecessary to address the House at length- Although his noble and 702 learned Friend had not stated his opinion very fully on some parts of the Bill, yet with respect to other parts, after what had fallen from his noble Friend, he thought that there was no great danger that this would become part of the law of the land. He cautioned the House on one point of immense importance, namely, the delegating the Judicial Powers of that House to the Privy Council; but he did not touch on one important clause in the Bill by which any question, and almost any matter, might be taken from the, jurisdiction of that House and transferred to the Privy Council. By the 9th clause it was proposed
That as often as either House of Parliament shall think fit to refer any matter or thing for inquiry before the said Judicial Committee, it shall he lawful for such House of Parliament to present an Address to tier Majesty, setting forth the subject matter so directed to be referred, praying Her Majesty to refer such matter to the Judicial Committee, and being by Her Majesty referred to the said Judicial Committee, shall be inquired of and tried according to the course of the said Committee, and according to any rules and regulations made or under the power hereafter contained to be made by such Committee, and its report on being made to tier Majesty shall be laid before the House of Parliament which had presented the Address aforesaid, and be then and there dealt with as to the said House shall seem meet.There was no limit whatever to the business thus to be transferred; and although his noble and learned Friend (Lord Brougham) had not stated this to be his opinion, yet he could not help recollecting that his noble and learned Friend proposed something like this in the House on a former occasion. The importance of making such a change might still rest on his mind; and if this Clause should become the law of the land, this House might soon find itself stripped of its Judicial Powers altogether. He would not say more, however, on this point after what had fallen from his noble and learned Friend on the Woolsack, who had so forcibly expressed his opinion as to the effects that would result from giving such a power as was invested in this Clause. There were two points of the Bill which he confessed appeared to him to be proper subjects of inquiry. In the first place with regard to Divorce, he admitted that the law of Divorce as it now existed, or rather the rules acted upon by that House were far from satisfactory. He did not think that an important matter of this kind should be left as it was, and that there should not be 703 a mode of special jurisdiction for every case, by means of a general law, and that parties should then be able to obtain redress without delay, and unattended with its present enormous expense. But, however important it might be to provide a remedy for parties who were suitors in cases of this kind, yet it was perfectly clear to him that, if they provided the remedy which was proposed in this Bill, no redress whatever would be furnished. The objection was not that Divorce was applied by Act of Parliament, but, as was said by his noble and learned Friend, that the expense was so great to obtain redress, that the law was only for the rich, and that the poor were entirely excluded from it. What was proposed in this Bill was, that what was done in that House on questions of Divorce should be done before the Judicial Committee of the Privy Council. [Lord Brougham: What was done before this and the other House in every Divorce case.] Yes. The change which his noble and learned Friend proposes in this Bill was with a view to save expenses. Now, was his noble and learned Friend aware of the expenses of proceeding before the Committee of the Privy Council? He (Lord Cottenham) was satisfied, from inquiries which he had made, that the expenses of proceedings in that Court were much greater than was generally admitted, and than the subject required. But what would be the effect of the expenses after the adoption of the Address of both Houses? It must be recollected that there would be the expenses of agents, attorneys, counsel, and witnesses in that and the other House, as well as before the Privy Council; for it was proposed that the proceedings should originate in Parliament. He was not aware whether there were any fees payable in the proceedings before the Privy Council; but there were fees payable on these proceedings in that House. With the exception of fees payable to a very few individuals in that House, the great body of the fees of the House, in Divorce and other cases of Private Bills, did not go to individuals, but to the Fee Fund. Under these circumstances, if the fees were found to be oppressive, and that it appeared that public benefit would result from their reduction, the obvious course to pursue would be to reduce the fees and not transfer the jurisdiction. If the Bill passed in its present shape, and there was to be a double jurisdiction, the expenses of parties would be increased; and above all, if there were many witnesses to be examined. He, therefore, thought that 704 they should not look merely to the expense attending the amount of the fees of parties coming to that House for a Divorce, à vinculo matrimonii. He did not dispute that it would be well, in cases of Divorce, to have some general jurisdiction, acting on known rules and adjudicating on fixed principles in all cases of persons coming for Divorces. Unfortunately there was no general law on the subject of Divorce, but for each individual case they had to make a separate law, and Parliament was called upon to pass a separate law in every case of Divorce à vinculo matrimonii. If they had a new tribunal for this description of cases, they might in the first instance make rules and orders for the regulation of the proceedings, and ultimately be enabled to frame a code of laws which would be applicable to the subject. At present they had no rules, law, or code on the subject, but they had merely for their guidance some regulations or forms of proceedings to be observed in Divorce Bills coming under the attention of that House. There could be no doubt but that the present evils attending these Bills were so great that it was a very proper subject for inquiry with a view to future legislation. It was to be hoped that the time was not distant when they would be enabled to adopt some general measure, and thus remove the objections which at present existed to the mode of proceeding in cases of Divorce; it was, therefore, not to inquiry into this part of the Bill, or to that relative to the extensisn of the duration of Patents that he objected. The question of the extension of the period of Patents was one which, from its nature, might require continued alteration, as the ingenuity of mankind was constantly being exercised in inventions and improvements, and therefore it might be requisite to adopt new regulations from time to time. He was surprised that his noble and learned Friend on the Woolsack had given his unqualified sanction to another matter involved in this Bill, and which it was not clear to him was a subject that was open to or called for inquiry; he alluded to the part of it relative to the appointment of a permanent head of the Judicial Committee of the Privy Council.
The Lord Chancellorremarked that he had not expressed his entire approbation of the Clause in question, but only to the principle of appointing a permanent President of the Judicial Committee of the Privy Council.
§ Lord Cottenhamtrusted he might indulge in the hope that, after the objections which 705 his noble and learned Friend entertained to other parts of this Bill, that this portion also, to which he had just alluded, would not become the law of the land. His noble and learned Friend (Lord Brougham) was mistaken in supposing that he (Lord Cottenham) had formerly proposed that there should be a permanent head of the Judicial Committee of the Privy Council, and that he had subsequently altered his opinion on the subject. He had certainly thought it would be better to have a permanent head of the Judicial Committee, but he never meant such an appointment as was proposed in the Clause in this Bill. It was proposed in this Clause that they should have three Judges to sit constantly in the Judicial Committee of the Privy Council. Now, what he proposed was this, that a Judge presiding in another Court should be called upon to preside in the Judicial Committee of the Privy Council. Now, when he came into the profession, and he believed for a very long period previously, the Privy Council had an appellate jurisdiction, as at present, in judicial cases from the Colonies and the East Indies, and the Privy Council on such occasions was presided over by the Master of the Rolls. The question then was, as to whether the judicial business of the Privy Council was then carried on in a way to give satisfaction to the public. He would ask, did not the decisions of Sir William Grant and Lord Alvanley in the Privy Council give satisfaction to the public? He assorted, that in the early part of their professional career, Sir William Grant and Lord Alvanley as constantly presided in the Privy Council as in the Rolls Court. [Lord Brougham remarked that Sir William Grant did not hold many sittings in the Rolls Court.] He was aware of that, but he wished to explain as to what he had formerly said respecting the appointment of a permanent head of the Judicial Committee of the Privy Council. He had proposed to the House to make an alteration in the establishment of the Court of Chancery, when his noble and learned Friend on the Woolsack strongly expressed his opinion that the then Government proposed to give a much greater increase to the Court of Chancery than was necessary, and objected to the addition of two Vice Chancellors to the Court of Chancery; but subsequently his noble and learned Friend was induced to agree to the proposal. His noble and learned Friend in the centre of the Woolsack [Lord Brougham was at the moment 706 sitting on the left hand of the Lord Chaneellor, on the Woolsack], then objected to this measure as unnecessary, but suggested that there should be only one additional Vice Chancellor instead of two. The arrangement, however, which he (Lord Cottenham) had recommended was adopted, and under it there had not been such an increase of the business of the Court of Chancery as was anticipated by some, or was of such an extent as to prevent them getting through the business of the several Courts. He believed, as he had stated he had every reason to believe would be the case when he proposed this plan of extending the establishment to the Court of Chancery, that the new arrangement had been such as to allow the Master of the Rolls to sit constantly as the President of the Judicial Committee of the Privy Council; and if this suggestion was adopted, they would have the judicial business of the Privy Council presided over by one who, from the nature of his office, must be a Judge of great eminence and of high professional attainments, and who was in the constant exercise of judicial functions. The extent and nature of the active employment which would be thrown on him by presiding over the Committee of the Privy Council would not be such as to interfere in any way with the Judge sitting in his own court. The great objection that he entertained to the creation of a new appointment as President of the Judicial Committee was, that they would make a new and permanent office for a court which did not sit for more than a few days in the year. He intended to have moved a few clays ago for a return of the number of days in which the Judicial Committee of the Privy Council had sat during the last three years, and showing how much business actually came before that tribunal; but he would do so on a future occasion. His noble and learned Friend had observed, that they could not judge by the past as to what would be the future business of the Committee of the Privy Council, if they had the additional jurisdiction which was proposed in this Bill. There was a recent return on the Table of the House of the number of cases which remained for judgment before the Judicial Committee of the Privy Council, and from that he thought that they could form a tolerably good criterion as to whether it was expedient or not to have three permanent judges, with salaries, added to the constitution of this tribunal, in consequence 707 of the probable increase of business before it. If reference was made to the return to which he had just adverted, it would appear, that in the order for the number of cases waiting for judgment before the Committee of the Privy Council, the answer was the word "Nil." Therefore, if they appointed these three permanent judges to form the Judicial Committee of the Privy Council, they would have to sit until some causes became ripe for them to hear and adjudicate upon. His noble and learned Friend said, that it was to be hoped, that under the extended jurisdiction a great number of causes would be sent before it; the question, however, was, whether it was probable from past experience, that such an extent of business was likely to occur before this tribunal, as to justify their creating this permanent change. But there was not only this objection to the proposed new arrangement; they were called upon to appoint three judges to a tribunal, by which it was admitted, on all hands, the judicial business had hitherto been satisfactorily performed. The return, as well as the admission of his noble and learned Friend, showed that the business of their Committee of the Privy Council had been satisfactorily performed; what necessity was there for this change? Was there not then some danger, that if they appointed these three judges to this tribunal, the administration of the judicial business of the Committee of the Privy Council would be left entirely to these three judges, as the other Members named on the Committee would not attend? This, he believed, would be the natural and inevitable consequence of making this change in the constitution of this tribunal. Taking it altogether, there had hitherto been an ample attendance of the Members of the Judicial Committee of the Privy Council, at the hearing of cases that came before that tribunal. His noble and learned Friend had stated, that he (Lord Cottenham) did not give attendance at the meetings of this Committee. Now, he would give a very good reason for not doing so. It was, that there was plenty of attendance at the sittings of the Committee without him, and not having any particular love for the thing, and finding that others gave a more regular attendance, he thought he would not interfere with their pleasures; but he had never failed to attend when it had been suggested to him that his presence would be desirable. The same was the case with respect to his attending at 708 the hearing of Appeals in that House. He always made it a point to attend when he thought that his presence could be attended with the slightest public advantage; and he should appeal to his noble and learned Friend on the Woolsack, whether he had not always attended when it had been suggested to him. Indeed, during the present and the last Session he had attended to hear Appeals in that House twice a week when his noble and learned Friend was engaged in the Court of Chancery; and also when any subject came under attention in which his opinion was required. He admitted, that in consequence of the Judicial Committee being very well manned, he felt that it was useless to attend these meetings of the Privy Council, unless his presence was required. He did not think that any thing had occurred which could justify the House in arriving at the conclusion that there was likely to be any difficulty in obtaining a sufficient attendance of competent Members of that tribunal, under its present constitution, so as to justify them in adopting the plan proposed by his noble and learned Friend. Under these circumstances, then, was it not a most extraordinary proposition to ask the House to appoint three Judges with salaries to this tribunal, which would become, if the Bill passed in its present shape, the highest appellate Court of Jurisdiction in this country, for the judicial functions of the House would cease? It was proposed in this Bill that the chief Judge, as permanent head of this tribunal should receive 2,000l. a-year, the second Judge 1,500l. a-year, and the third 1,200l. a-year as salaries. Now, it was obvious, that from the amount of salaries proposed to be paid to these Judges, and also from the station and professional acquirements which it would be absolutely necessary that those holding such offices, and being called upon to discharge such functions, should possess, that they could not induce persons in high professional practice to accept such appointments; that therefore these offices were to be filled by persons who had retired from high judicial situations, and who were to receive their salaries in addition to their retired allowances. It was obvious that they could not get efficient Judges for this tribunal, if they were only to receive the small sums proposed in this Bill. Of course, he was aware that the insertion of the money clause in this Bill was only a preliminary matter, and that it must be erased previously to sending the 709 Bill to the other House; but it was obviously inserted to show what was proposed to be done, and he, therefore, was fully justified in making the observations which he had respecting it. His noble and learned Friend on the Woolsack said, that he had only given his opinion as to the advantages of having a permanent head of the Judicial Committee of the Privy Council, although he gave some sort of intimation that in Committee he should propose some other plan for such appointment than was in the Bill. He could not help calling the attention of his noble and learned Friend to the very extraordinary situation in which this tribunal would be placed by the appointment of such a permanent head with a salary. The Judges of this tribunal had not hitherto been permanently appointed to those offices, for at present they must be Members of the Privy Council; and of necessity their being so, and their consequent exercising their judicial functions at this tribunal, must be dependent on the will of the Crown. It was true that the same objection, to a certain extent, might be raised to the appointment of the Master of the Rolls, or any other great judicial officer, to preside as permanent head of the Judicial Committee of the Privy Council. It was true that the Master of the Rolls could be deprived of his seat at the Privy Council, but he could not be deprived of his seat in his own Court; and this officer, therefore, could perform judicial functions in the Privy Council, without salary, incidental to the other judicial appointment which he held. This was an advantage which could not be obtained by any means of the arrangement proposed in this Bill. As long as a jurisdiction vested in the Privy Council, any Member of the Judicial Committee might cease to be competent to act as a Judge of that tribunal, as he was liable to be deprived of his seat as a Privy Councillor by the act of the Crown. Therefore, they must say whether they would put a Judge at the head of this tribunal, with other judicial duties to perform, or an individual, the exercise of whose functions as a Judge would entirely depend on the will of the Crown. In the latter case, it was clear that the appointment of the Judge was not independent of the Crown, for he could at any time be deprived of the power of discharging his judicial duties. In this state of things, when the returns which he intended to move for were produced, a slate of facts would be shown which would give 710 a full statement to the House as to whether this tribunal, as at present constituted, was competent to discharge all the duties which were entrusted to it; and, as there was no accumulation of business, whether there was likely, under any extension of its functions, to be such an increase of business as to call for a reconstitution of the tribunal. For his own part, he did not think that in the principle involved in this part of the subject there was matter which was necessary to refer to a Committee up stairs. He thought that the point involved regarded a matter, respecting which it was the duty of Her Majesty's Government to make up their minds one way or the other, and if they made up their minds, they should pronounce theirs opinion without going to a Committee. He conceived that the question involved a matter of great importance, which could not be elucidated by inquiry, and, therefore, that it was altogether unnecessary to make it a subject of reference to a select Committee. Those two parts of the Bill which took from and transferred the jurisdiction exercised by that House—excepting that regarding Divorce cases, and respecting which be did not object to inquiry—and also, so fur as it proposed to appoint three salaried Judges to sit constantly in the Judicial Committee of the Privy Council, he conceived that Her Majesty's Government ought to make up their minds and not to allow inquiry. If they resorted to a Select Committee they could not acquire any information on these points, and he therefore could not see the least advantage that could be gained by doing so. The only cases in which it was advantageous to resort to a Select Committee was, first, when all the facts upon which they were called upon to legislate had not been fully elicited, and when, therefore, Parliament should proceed to obtain as full a knowledge as possible on the subject; and the other ground was, when the Government, had made up their minds in favour of a measure on evidence which was before them, but which might not be sufficient, without further elucidation, to satisfy others. But on a subject with respect to which Her Majesty's Government had formed opinions, and made up their minds, he conceived that it was a dangerous course to resort to, to send a matter to a Committee, with respect to which they raised expectations, cord formed hopes which never could be realised, and thus weakened the confidence in established institutions, on the ground that the House and the Govern- 711 ment was willing to alter them. He would not give further trouble on this subject, beyond repeating that he did not concur in any part of the propositions that were involved in this Bill, with the exception of that for instituting an inquiry into the propriety of extending the jurisdiction of the Judicial Committee of the Privy Council in cases of Divorce, and also of giving them increased powers for the extension of the duration of Patents.
Lord Campbellsaid, that as subsequent opportunities would arise of discussing at length the various propositions involved in the Bill, he would content himself with making a very few observations. The Bill involved many subjects which he had long considered, and with respect to which he had formed opinions, which, however, he would not trouble the House with on that occasion; but he must at once declare, that he would be the last man, in or out of that House, to part with the functions which properly belonged to them, whether they were judicial or legislative. Whatever property belonged to that House, as the first tribunal of the kingdom, he would advise their Lordships to keep in their own hands. Their Lordships were a Court of Justice, not of original, but of appellate jurisdiction. With regard to Divorce Bills, they did not come before their Lordships properly, either as a branch of the Legislature, or as a Court of Appeal. His noble and learned Friend, the author of the Bill, had stated what it was impossible to contradict, that the dissolution of the marriage contract ought to be a judicial proceeding. It was so in every other country in the world, and he hoped it would be so before long in England, provided no facility were given to Divorce in any case where there was not clear proof of adultery on the part of the wife, and where the husband was not freed from all suspicion of collusion. If, however, the adultery of the wife was clearly proved, and the husband was free from such an imputation as he had referred to, it was the doctrine of Scripture, and it was the dictate of reason, that the marriage ought to be dissolved. And this was practically the law of England. In every case where adultery was proved satisfactorily, and the conduct of the husband was unimpeached, he obtained the remedy of divorce, if he was able to defray the expense of pursuing it. The question, therefore, was, 712 by what means that law should be administered. Should it be by an Act of the Legislature, or by a decree of a judicial tribunal? There was no doubt that our present system of Divorce Bills had brought great scandal upon the administration of the law of this country. Foreigners looked upon it with amazement. He had conversed with many of them on the subject, and had been utterly at a loss to find any argument by which the practice could be at all palliated. It was also a serious inconvenience to that House last Session of Parliament—the business of the House was interrupted for several weeks in examining witnesses at the Bar upon Divorce Bills; and notwithstanding all the care of his noble and learned Friend on the centre of the Woolsack—and he was extremely solicitous on the subject—there was great difficulty in guarding against fraud, and such matters would be much better disposed of before a Judicial tribunal than in that House. He had come more recently from the other Chamber of Legislature than any of their Lordships, and the impression on his mind of the manner in which these Bills were treated there, was still most lively, and he confessed that he was quite ashamed to think of the scenes he had witnessed there. When a Divorce Bill was called, there was either a noise or a titter, and unless there was some piece of evidence, that some old gentleman was desirous of listening to, not the slightest attention was paid to the proceeding—no oath could be administered, and in short, it was a mere burlesque upon judicial proceedings. Suppose there was a foreigner under the gallery on such an occasion, he must be at a loss to understand what was going on; and he was sure that any Member of that House, or any citizen of this country, would be ashamed to explain it to him. Then the expense was so very great, that it was not a remedy for the poor or the middle classes; and he could not help thinking, notwithstanding what had fallen from his noble and learned Friend behind him (Lord Cottenham) for whose opinions he entertained the greatest respect, that before the Judicial Committee, there might be a remedy just as cheap as before the Court of Session in Scotland, where for a sum of 25l., a Divorce à vinculo matrimonii might be procured. But he could not at all concur in the mode proposed by his noble and learned Friend—he thought the Judicial Committee of 713 the Privy Council might be made an excellent Tribunal for this purpose. It could have the advantage of the presence of Equity, Consistorial, and Common Law Judges. The case might be gone into, and the witnesses examined more conveniently there, than at the Bar of that House, and he did not think any tribunal could be better constituted for the purpose of taking cognizance of the subject of Divorce. But what his noble and learned Friend proposed by this Bill was, not that there should be a reference at once to the Judicial Committee. There was first. to be a Petition to that House. Their Lordships had no proper jurisdiction on the subject—it did not belong to them as a branch of the Legislature, as a Court of Justice, or a Court of Appeal; but still the unhappy husband was condemned first to petition their Lordships: then their Lordships were to address the Crown; then the Crown was to make a reference of the matter to the Judicial Committee; then the Committee was to examine witnesses and ascertain the fact; and what next? Why, the decision of the Committee was to be laid before the two Houses of Parliament, who were to judge whether the Committee had done right or wrong in pronouncing their judgment. Was it again to be argued by Counsel at the Bar of the House? Were they to sit in Committee, and again take the depositions? That would be the consequence of the plan proposed by his noble and learned Friend; but, of course, this might be reformed in Committee. His opinion was, that it should be open to any injured husband at once to apply to the Judicial Committee, and they should examine the case and deliver a judgment which should be final between the parties. With regard to the power of extending Patents, that was a matter which did not properly belong to their Lordships—Patents were originally granted by the Attorney General. His noble and learned Friend on the Woolsack had granted many; it was properly the business of an Officer of the Crown or some judicial tribunal, and to that branch of the Bill no objection, he thought, could be made. But with regard to the general power of carrying all the business of that House to the Judicial Committee, he must certainly oppose it. He felt quite incompetent as a Member of that tribunal to take such functions upon him, and he 714 should be obliged to call on his noble and learned Friend (Lord Brougham), who was ready at all times, at whatever cost and inconvenience it might occasion him, to take his (Lord Campbell's) place. If such a Bill as this were to pass, he certainly should require him to come from his retreat and to take his (Lord Campbell's) place at the Judicial Committee. But he apprehended that this was a clause that could not be introduced into the Bill as it was then framed, and that it was only specific powers which could be invested in that or any such tribunal. Now, he would come to the other point, respecting the constitution of the Court. He thought they might get on very well with the aid of his noble and learned Friend who had himself made out a very good case for him (Lord Campbell). He was rather surprised at finding him pushing his advantage (so far in showing that things had gone on excellently well as they were. He (Lord Brougham) said, truly that the business had been done, and he said also that it had been well done, and that there had been great satisfaction, If he could have shown that some great change would take place in the jurisdiction of the tribunal, unless not only Divorce Bills, but Estate, Inclosure Bills, Railway Bills, and other Bills of a public nature would be referred to the Judicial Committee, it might go on very well as it had hitherto done. It had given satisfaction, and he trusted would continue to do so. Now, for nearly three years he had himself, as the Lord President knew, assiduously attended. And he should still be willing to snake an effort to be of some small service to his country. But whether there was to be a head or not, he could not conceive that it was necessary for there to be a head of the Court, such as was described in the Bill. He knew nothing of the individual—they might form their conjecture on this subject—but he discovered from the Bill that the new head was to be of high rank in the Court and out of the Court—he was to take precedence of all the Dukes of the land in that House at Coronations, and on every solemn occasion. He certainly must look with great respect on the tribunal of which he happened to be an unworthy member, but he could not conceive that its dignity or efficiency could depend on any individual having such extraordinary and unnecessary distinction. But as these matters would be more fully considered 715 before a Committee, he would not then detain their Lordships longer. He thought, however, it was his duty to state to their Lordships with brevity the general view he took of the Bill. He had no objection to its being read a second time and going into Committee; but unless it was most materially altered he should not give his assent to it.
The Bishop of Exeterwas sure that he should be forgiven for trespassing upon the time of the House when he conceived the spiritual interests of the country to be concerned; at the same time, he regretted that it should have fallen to his lot to speak upon this subject, when it might have been so much more ably performed by more distinguished Members of the Bench upon which he had the honour of a seat. The first objection which he should venture to make to this Bill, which, upon the whole, he doubted not, was calculated to promote the interests and to forward the justice of the country, was, that in extending the jurisdiction of the Judicial Committee it had not been sufficiently considered whether it might not be wise to diminish its jurisdiction. That Committee was at present the ultimate Court of Appeal on all spiritual cases whatsoever. He felt confident that the practical result of the Act delegating this power to the Judicial Committee was not considered at the time of its passing. The measure as their Lordships were all aware, was intended to supersede the old Courts of Appeal with respect to scriptural causes, which were found to be full of inconvenience. It was agreed to in consesequence of the recommendation of a Commission appointed in 1830, who made a special report upon the subject, advising that in future such cases should be transferred to the Privy Council. But what reason did they urge for such a step? Simply the structure of the Privy Council. They said—"There are lords spiritual and temporal, as well as lawyers of every court, in that Council, consequently that is the best possible place where such appeals should be decided." What followed? Soon after the adoption of that recommendation another measure was adopted transferring the jurisdiction of the Privy Council to the Judicial Committee, and that Judicial Committee was so constituted that it should practically, and, he (the Bishop of Exeter) believed necessarily, consist almost entirely of law Lords. Now, it was very 716 desirable that the Members of the Church should not be mixed up with any deliberations of a judicial character, except such as were measures of a scriptural character, but the result of transferring the jurisdiction of the Privy Council to the Judicial Committee was, in point of fact, to remove from the Church, the ultimate decision of all matters connected even with the very doctrines of the Church. That he (the Bishop of Exeter) was sure could never have been intended, yet so it was: for at this hour, if a suit were brought against any of their Lordships for heresy, the Court of Appeal which would have to decide whether such person was a heretic or not would be this Judicial Committee of the Privy Council. He was quite certain that this was a matter which, at the time, must have been overlooked-he was sure it was a cases omissus. Take even the case of a bishop or of a clergyman brought to answer for any misconduct. In such a case one of the Bishops, who was a Member of the Privy Council, might sit on the Judicial Committee. That was a provision, but it did not go very far. The case would be an appeal from the Court of Arches; that would, of course, at once exclude the most Rev. Primate the Archbishop of Canterbury from sitting, in consequence of its being an appeal from his own Court. Then, if the case happened to have been heard in the Consistory Court of the right Rev. Prelate the Bishop of London, and the right Rev. Prelate were to avail himself of the very reasonable power of applying by Letter of Request to the Arches Court, then both the Bishop of London and the Archbishop of Canterbury would be excluded. The only Member left would be the Archbishop of York, and he, as their Lordships well knew, laboured under the weight of nearly ninety years. He submitted that such was not the Court of Appeal to which cases should be submitted for decision that were of the utmost importance to the interests of the Church of this country. He did not think any Committee of the Privy Council could be made an adequate Court of Appeal for deciding upon Church matters. It had been said, that the Judicial Committee as constituted by the measure of 1833 had been found to work beneficially and satisfactorily to the country. But he must be forgiven if he said that there was one important exception—it had not given satisfaction to the 717 Church of this country. He abstained from going into particulars, but he thought it unjust to the Church that there should not be some Court on which the Church might rely for its entire sufficiency to decide upon all matters that might be brought before them; and it was also unjust to the individuals who were placed in the high situation of the last appellate jurisdiction in this country, that matters should be brought before them on which it was utterly impossible for them to decide. There was a matter of great importance which would shortly come before the Judicial Committee of the Privy Council, on which they would have to pronounce judgment, which excited the greatest interest in the country, and affected a large class of persons—a matter on which, he was sure, the Members of that Committee would feel most strange, and totally foreign from all their study, and from which wisdom should make them recoil—yet, if this Bill before the House were carried into effect, that matter and others like it would be forced upon that Court, notwithstanding that that Bill was denominated a Bill to provide for the better Administration of Justice by Her Majesty's Privy Council, and to settle all that was deficient before. He (the Bishop of Exeter) rejoiced to hear that the Bill was likely to be sent to a Select Committee, because he thought the subject to which he had referred especially demanded the attention of that Committee. To deal frankly with the case, he must say, that he thought to provide an adequate Court of Appeal in scriptural cases could hardly be made a part of the Bill. It ought to be a distinct and separate power. He (the Bishop of Exeter) lamented to hear the noble Lord who had introduced this Bill speak of divorce à mensa et thoro as a trifling thing. A divorce à mensa et thoro was, in fact, a divorcing of the married parties. The Act of the Legislature, though called so, was not, in fact, an Act of divorce, its real nature being to enable those who were judicially divorced before by the sentence of divorce à mensa et thoro to contract matrimony, which, otherwise, by the defective state of the law, they could not do. For that reason he (the Bishop of Exeter) rejoiced that a Measure was to be introduced which would give to people divorced à mensa et thoro the power of marrying again with out an Act of the Legislature. The ques- 718 tion as to the power of releasing patties from the obligation of marriage à mensa et thoro was one which he was unwilling to approach, because he could not do so satisfactorily. But if this Bill passed, it would give to the Judicial Committee of the Privy Council the power of awarding a total divorce with the ability of marrying afterwards, which would be giving a power unprecedented in the history of the legislation of this country. In no other case could a cause be decided in the Court in which it was first brought without an ultimate appeal. The Court was objectionable because there was no appeal from it, which there ought to be.
Lord Broughamsaid, the observations of the right Rev. Prelate deserved very great consideration, coming as they did from a Father of the Church. The right Rev. Prelate complained of the sort of persons who now exercised Spiritual Jurisdiction in the Judicial Committee of the Privy Council, and said that they had not given as much satisfaction as was desirable to the Church in general; but the constitution of the Court of Delegates was formerly just as liable to the same objection. That Court was composed of Civilians and of Common Law Judges. In Escott's case—the Lay Baptism case—he had pronounced the judgment of the Court, and one of the Members of the Judicial Committee by whom they were on that occasion assisted was a Consistorial Judge, and they had affirmed the judgment of the Archbishop's Judge—namely, the Dean of the Arches. If, therefore, they had erred they had done so in company with the ecclesiastical authorities singled out to decide such cases, and appointed by the Bishops themselves. The quorum of the Court of Delegates had been composed of Doctors who had no practice, because if they had they were sure to be engaged in the cause; and who got only a guinea a day for their judicial services; there were four Doctors, and three Common Law Judges. As to the point alluded to by his noble and learned Friend as to precedence, it was only meant that they should take precedence in the Court; it was never anticipated that they would take precedence in the Drawing-rooms, about which no one cared a rush, at least no rational man. With respect to the importance of having a better staff of Judges, after all that he had heard, he certainly retained his opinion. His noble and learned Friend (Lord Cottenham) asked, what was the 719 use of having three Judges? and he retorted on him some of the vituperation with which he (Lord Brougham) had assailed his noble and learned Friend's measure, and he seemed very much to enjoy himself in doing so. His noble and learned Friend had found his two Vice-Chancellors too many; he said that two were too many, but one was not sufficient, and so he supposed his noble and learned Friend meant that one and a half, and one and one quarter would just do; and he seemed to rejoice when he thought he had found him (Lord Brougham) falling into the same error as to the three Judges. But Ids answer was, that they had no right to count on those they had now; they had not got three Judges. There was not one permanent Judge; and if they went into Committee, his noble and learned Friend would find that they had often found extreme difficulty in getting Judges, and had indeed been obliged to reduce the quorum of the Judicial Committee from four to three on that account, in certain cases by a Bill of Ids (Lord Brougham's) passed last Session. He had heard his noble and learned Friend say a dozen times that be considered voluntary Judges to be totally out of the question for any Court. One ground of opposition to the Bill was, that that House would strip itself of jurisdiction. There was no necessity for the House to do that. So far from taking away the jurisdiction of Parliament, the Bill sought nothing of the kind; it merely allowed the Parliament to call to itself the aid of an ancillary body. He was astonished to hear it stated that in cases of Divorce, this Bill would effect no relief by providing that these cases should be tried before the Judicial Committee, and that there would be no difference in expence between the proposed plan, and a Bill in Parliament. Why, the last Divorce Bill, which had been slightly opposed, cost 940l.; a previous one, which was unopposed, had cost 500l. He should be able to prove before the Committee that the cost of a Divorce before the Judicial Committee would not necessarily be above 25l. The fees of the Judicial Committee might be greatly reduced; and he had no doubt but that a Divorce might be obtained at the same expense before the Judicial Committee as before the Court of Session in Scotland. For a mere Divorce à mensa et thoro the only benefit obtained was, that if the party should marry again it was not felony. With a Divorce 720 only to that extent the parties were still married, and might put an end to their separation at any time by consent. The proof that the matrimonial tie was not dissolved was, that in law with a divorce à mensa et thoro the widow was dowable of her husband's landed estate, and the husband was entitled to his tenancy by the courtesy of the wife's landed estate after their separation, but this form of Divorce was obliged to be used, because their Lordships required it as a preliminary.
Lord Campbellsaid, the Bishop of London had attended the Judicial Committee on all Ecclesiastical occasions of its sitting, and had concured in its decisions.
The Bishop of Exetersaid, the Bishop of London only attended in the decision of cases of Church discipline. There were, however, other cases in which questions of Church doctrine were to be decided.
The Lord Chancellorwould put it to the noble and learned Lord, whether it would not be better to divide his Bill into two parts? The Divorce part of the Bill was one of so much importance, that it might be a consideration whether it ought not to be a separate Bill.
§ Bill read a second time, and referred to a Select Committee, with power to divide it into two parts, if they should so think fit.
§ House adjourned.