HL Deb 13 June 1854 vol 134 cc1-28

ORDER of the Day for the Second Reading read.


My Lords, I now rise, in pursuance of notice, to ask your Lordships to give a second reading to the Bill which I had the honour to lay upon your Lordships' table ten days ago, for improving the law on the subject of divorce and matrimonial causes in general. This is a subject which has engaged the attention of the Legislature for a long period of years. It is, perhaps, rather a matter of antiquarian curiosity than of modern necessity, to trace the history of the law upon this subject. The changes that have occurred on this subject are curious and interesting. Prior to the time of the Reformation marriage was considered—as it still is in Roman Catholic countries—a sacrament, and therefore absolutely indissoluble. But, in order to effect by indirect means that which was not allowed to be effected directly, recourse was had to a number of expedients whereby, although marriages were never dissolved, and the law of divorce was unknown, sentences were pronounced which amounted, in effect, to sentences of divorce—decrees that the marriage had been from the beginning null and void. The consequence was, that marriages were rendered extremely insecure from the great variety of causes for which they might be thus in effect set aside. Among these causes was what was called precontract with some other person; and marriages were dissolved because the connection of the parties was within the degrees of consanguinity or affinity prohibited by the canon law. So far was the latter objection carried, that if the persons united in marriage were cousins in the eighth degree, the marriage could be set aside as being in the nature of an incestuous marriage; and it is stated by Lord Coke that in one preeminently absurd case the marriage was annulled because the husband had stood godfather to the second-cousin of his wife. Such were the ridiculous ways in which the absolute inviolability of marriage was evaded. The Reformation occurred. Upon that occasion, or very soon after, a Commission was issued, directed to thirty-two persons, sixteen lawyers and sixteen ecclesiastics, for the purpose of reforming the laws connected with the Church, and marriage being then considered entirely a matter of spiritual cognisance, that subject of course came under their consideration. The Commissioners recommended most extensive changes, The mysterious inviolability and indissolubility of marriage was entirely discarded, and the Commissioners recommended not only that marriages should be capable of being set aside for that for which the Scriptures warrant them to be set aside—namely, adultery—but also that they should be set aside for a great variety of causes which were enumerated, such as cruelty, grievous misconduct, and desertion. In point of fact, the recommendations of the Commissioners never did become law; but, nevertheless, what they recommended was, to a certain degree, so conformable to the feelings of mankind, that afterwards—during the latter part of the sixteenth or the early part of the seventeenth century—occasionally divorces did take place—divorces not only such as we now understand as divorces a mensâ et thoro, which are in truth mere separations with certain consequences attached to them, but divorces a vinculo matrimonii. I do not intend to trace the steps by which these divorces were effected; but may at once say that before the close of the seventeenth century, it became completely understood that though the ecclesiastical courts could grant divorces a mensâ et thoro—divorces which disentitled the husband to claim the cohabitation of his wife, or vice versâ—yet they could not dissolve the bond of marriage so as to enable the parties to marry again. There was consequently at that time no means of obtaining divorces a vinculo matrimonii. Towards the close of the seventeenth or early in the beginning of the eighteenth century it began to be felt that the state of the law was such as to impose great hardships in particular cases; and it was felt that in cases, at all events, of the adultery of the wife, when it was impossible for the husband any longer to cohabit with her, he ought to be able to put himself in the position of a single man again. Perhaps the most rational way to have met that grievance would have been at once to have legislated on the subject. There was a state of things which occasionally imposed a great hardship; and it may be thought that steps should have been taken to remedy it at once by legislation; but that was not done—it was not thought right to give to any tribunal the power of dissolving marriages—and the mode in which the evil was met was by what the Romans called a privilegium, or a special law for each particular case. Parties came before the Houses of Parliament and obtained for themselves, by Bill, the benefit of an enactment dissolving their marriage. Bills of this sort have not, however, been very numerous. I think during the last century there were about 100 of them. It is quite obvious that if it be desirable, as I firmly believe it is, to make it by no means easy to obtain a divorce, the proceedings of the Legislature upon such a subject should be fenced with every possible security. It was at the time when Lord Loughborough held the Great Seal that certain rules were introduced to your Lordships' House, which required, in every case of an application for a divorce, that the party seeking that divorce should come before your Lordships with a double evidence of his sincerity—first, by his having recovered a verdict at law in an action against the adulterer, and next, by his having obtained a divorce in the ecclesiastical courts, so far as those courts were competent to grant a divorce, namely, a divorce a mensâ et thoro. The matter then underwent a complete investigation here; for it has been the invariable practice of this House not to rely on the evidence given in the Ecclesiastical Courts, but to have the cases reinvestigated at your Lordships' bar. I need not say that that is an inquiry which is conducted with very great rigour, not merely to see that the fact of adultery has been clearly made out, but also to satisfy your Lordships that there has been no connivance or collusion on the part of the individual seeking redress. The Bill was then sent down to the House of Commons, where the proceedings in reference to it were not conducted in so regular or stringent a manner as at your Lordships' bar; and then it was passed into law, and the divorce was effected. Of such divorces, according to a Report published one or two years ago, there have been during the present century up to the year 1852 about two a year.

But I think every one will be of opinion that this is a very unsatisfactory and unbecoming state of the law; because, however desirable it may be to prevent divorces, and to compel parties, if possible, to settle their differences and live together, yet if there are cases—I allude to cases of adultery—where it is impossible that this can take place, and where relief must be granted, it is very improper that that relief should be granted, not by the operation of any law that gives it to the party, but by reason of your Lordships' feeling that the want of such a law is so grievous that in each particular case you will make a law for the occasion. That is a state of things not creditable to any Legislature. It was owing to the pressure of that state of things that about three years ago—Christmas, 1S50—when Lord Truro held the Great Seal, a Commission was issued to a great number of persons—some in your Lordships' House, some in the other House of Parliament, and some very learned civilians—to inquire into this matter, and to see what course they could recommend for the purpose of remedying the evil to which I have referred. That Commission made its Report in the last Session of Parliament; and it is in pursuance of that Report, with some very slight modifications, to which I will call your attention, that I have prepared the Bill which I have laid upon your Lordships' table. There were two classes of questions which had to be considered by those Commissioners. The first was, what are the class of cases in which it would be safe and proper to allow divorce by law; and, secondly, when that point had been settled, what is the tribunal to whom the decision of the question whether a divorce ought or ought not to be granted could be safely confided? On the first subject the Commissioners came to the conclusion, in which I trust your Lordships will concur, that it is extremely expedient to confine the grounds of a divorce to those which your Lordships have hitherto, for the last century and a half, alone admitted to be good and valid. I allude, of course, to cases of adultery. It was proposed—at least the suggestion was made—that this did not afford relief in many cases in which it would be expedient that relief should be given. It was said that great cruelty, absolute desertion, and extreme incompatibility of temper, which are con- sidered good grounds for a divorce in some countries, ought to be so considered in England; but the Commissioners came to the conclusion that that was a proposal not founded in good sense, and they expressed the opinion that, whatever may be the occasional unhappiness that arises in married life, and however much you may think, when you come to look at a particular case, that it would be desirable to have some mode of severing the knot in that and similar instances, the general interests of society were much better consulted by our adhering to the stringent rule which has so long prevailed in this country. That was the opinion of the Commissioners; and even if I differed, which I do not, from that conclusion, I nevertheless would not think of proposing any change to your Lordships—because I am perfectly certain that to propose such a change would be to propose something utterly impracticable, and opposed to the Feelings and wishes of ninety-nine out of every hundred persons in the community. On this subject I cannot refrain from calling your Lordships' attention to the clear and lucid—I had almost said beautiful—language of Lord Stowell, in his judgment in Evans v. Evans— To vindicate the policy of the law," says Lord Stowell, "is no part of the office of a Judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity—with that true wisdom and that real humanity that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of marriage may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off, and they become good husbands and good wives—from the necessity of remaining husbands and wives—for necessity is a powerful master in teaching the duties of life. I cannot possibly explain more clearly the view I take upon this subject, or the reasons why I have not thought of proposing that marriages should be dissolved for anything short of adultery. There is one other observation in addition to that which lies on the surface. If marriages could be dissolved for cruelty or desertion, the husband might dissolve his marriage whenever he pleases; he has only to be tyrannical to his wife, or to desert her, to effect the very object which he has in view. Therefore, I do not at all propose to alter what has been—I will not say the law, because, in point of fact, there has been no law—but the practice on this subject. On the contrary, I intend to leave it as it is. There is one point which also engaged the attention of the Commissioners, and on which I am afraid that the course I propose to pursue may at first sight appear to be at variance with what has been the practice of your Lordships, and perhaps with the recommendations of the Commissioners. It is this—I do not propose, and the Commissioners have not recommended, that the wife should have the same relief on account of the adultery of the husband that the husband has on account of the adultery of the wife. Now, primâ facie, that seems a very unjust distinction; but observe what the want of it would lead to. If adultery on the part of the husband is to entitle him to a divorce, inasmuch as the husband—which may be bad morality, but it is the fact—suffers little on that account in the opinion of the world at large—for it is notorious that, while the wife who commits adultery loses her station in society, the same punishment is not awarded to the husband who is guilty of the same crime—he may, without any great sacrifice, on his own part, but by merely being a little profligate, and multiplying his acts of adultery, be able to effect his object. Therefore I confess I think the Commissioners came to a right conclusion when they abstained from recommending that the wife should be able to obtain a divorce on the same grounds as the husband. But there have been some extreme cases in which your Lordships have given relief to the wife. I allude to those instances in which the husband has not only been guilty of adultery, but of adultery added to the aggravated crime of bigamy or incest. In such cases it is, of course, impossible for the wife ever to pardon or live again with her husband; but it is not, perhaps, so in cases where there is not that aggravation. However, though the extreme cases to which I have referred are of very rare occurrence, I have thought it advisable to introduce a clause to the effect that in such cases the wife may be entitled to the same relief as the husband, and may obtain a divorce so as to enable her to marry again. There have been, I believe, only four cases of divorce at the instance of the wife; two of them were cases of incest, and the other two were cases which I have not found myself competent to frame any general enactment to meet—cases of that extreme fraud which it is impossible to provide for beforehand, and which must be dealt with as they occur. What I propose, therefore, is to constitute a tribunal for the purpose of giving a divorce a vinculo matrimonii in those cases in which relief is now obtained from the Legislature, and upon the same grounds which, for a century and more, have been the only grounds which have induced your Lordships to grant relief.

There is but one other question to consider, and that is, what is the tribunal to which this duty ought to be confided? I know that some doubts may be entertained with regard to my proposition on this point; and I will first state what the Commissioners recommend. The Commissioners say:—the Court of Chancery, in its present state, has all the elements of a good tribunal for dealing with this matter. Its form of pleadings, and its mode of procedure, as regulated and improved by the recent Statute, could readily be adapted to all the suggestions which we have pointed out above. But there is one great objection to it, and that is, that the entire dissolution of the marriage bond ought hardly to be left to the unaided decision of a single Judge. The Commissioners, therefore, recommend that this delicate and difficult function should be intrusted to three Judges—one a Vice Chancellor, one a common law Judge, and one an ecclesiastical Judge. That is the tribunal which the Commissioners recommend for granting divorces a vinculo matrimonii, divorces a Mensâ et thoro, and, indeed, all matrimonial causes whatever. Now, I have considered this matter a good deal, and I do not think, with all deference to the very learned persons who were members of the Commission, that they have recommended the most expedient course. I will state to your Lordships why I do not think so. In the first place. with regard to divorces a vinculo matrimonii, I think it is important that not only all the talent, but all the rank and dignity possible, should be given to the court which is to decide upon such cases. To a certain extent it will be a substitute for the court of common law which tries actions of what is called crim. con.; fur the ecclesiastical court which grants divorces a mensâ et thoro; and for your Lordships' House, which, in truth, is the court of last resort to which application is made. I propose, therefore, that a divorce court should be constituted, to consist of five members, of which the Lord Chancellor and the Lord Chief Justice of the Court of Queen's Bench shall always be members, and the other members shall be the Master of the Rolls and two other persons, probably two learned civilians, to be named by the Queen; three to forum a quorum. It appears to me that this is the best tribunal that can be constituted. It has been suggested by the Lord Chief Justice, that if the business of his court should increase, there might be great difficulty in his devoting sufficient time to it; but if there is any danger of this being the case, I shall have no objection to insert a clause in Committee by which one of two Justices may be substituted for the Lord Chief Justice when necessity required. The Bill contains a provision that, as the court will be sitting but seldom, the officers of the Court of Chancery shall be required to give their attendance on it. I also propose that all the evidence shall be taken vivâ voce, because it is most essential that those matters should be always sifted to the very bottom. In cases, however, where a material witness may be abroad, the court will have the power to obtain his evidence by commission, if necessary. I propose to give to the court the power of probing the matters coming before it to the bottom, and, with that view, of adjourning cases from time to time, and hearing further evidence in regard to them—because the real difficulty in such cases will be not to prove the adultery but that there is no collusion, and that the parties have come fairly before the court with the honest view of obtaining relief. I propose, likewise, that the evidence shall be all taken by a shorthand writer; I think that is the best course that can be adopted; and, that being so, there will be before the court eventually all the evidence taken before them orally, and taken by a shorthand writer, as a sort of record. It would not, I think, be safe that there should not be an appeal somewhere from the decision of a court which had to deal with such delicate and difficult matters. At present, an appeal in cases of divorce a mensâ et thoro is to the Judicial Committee of the Privy Council; but I have thought it better, when we are dealing with cases so difficult and delicate as these, that the appeal from the divorce court should be to your Lordships' House, who could decide, upon hearing the evidence before them, whether the court had come to a correct conclusion. I do not think that appeals will be very frequent, because the real question to be decided is generally whether there has been collusion or not. The Commissioners recommend that to the court of divorce should be confided the decision of all matrimonial questions. I propose that those matrimonial questions, short of cases of divorce a vinculo matrimonii, should be decided by the Court of Chancery. I have two reasons for taking that course. In the first place, I have great aversion, unless it is absolutely necessary, to multiply tribunals. I believe if this and the Testamentary Jurisdiction Bill should cast on the Court of Chancery more business than they can get through, the best remedy will be to constitute a new Vice Chancellor. I believe that it has been one of the misfortunes of this country, that we have had too much of what Jeremy Bentham called metaphysical divisions in the business of its courts. I am not one of those who think the desirability of what is called fusion is so great that it would be worth while to throw everything into confusion in order to get everything into a proper form for decision. I propose, therefore, that those minor matrimonial questions shall be best left to the Court of Chancery. I know that there is a popular feeling against the Court of Chancery in reference to its delays. I have already more than once stated that, although I am far from denying that there is often extreme delay in that court, that is almost always delay incurred in taking accounts in matters arising after there has been an adjudication. The adjudication in any matter is as quickly come to in the Court of Chancery as in any court in Her Majesty's dominions. I venture to say that without any fear of contradiction. But although I do not say that it may not be found necessary to create another branch of the Court of Chancery, if these cases are brought before it, there is one advantage that seems to me to countervail every other consideration; and it is this—that, in deciding questions a mensâ et thoro, they have to decide on the separation of husband and wife, and with the Court of Chancery rests now the decision of questions relating to the custody of every child in the kingdom. That Court, under certain circumstances, could take a child even from its father. I think, therefore, that the Court of Chancery is pre-eminently the tribunal to which ought to be intrusted the decision of questions as to whether a husband and wife should or should not be separated. I do not like to refer to matters which have conic before me judicially, but I may mention that very recently a case was heard before me which involved unfortunate differences between a gentleman and his wife living in Paris. They were foreigners in Paris, and the tribunals there decided that, according to the provisions of the Code Napoleon, they had no power to decree what was called a separation de corps; and they therefore remitted the parties to this country to seek a divorce a mensâ et thoro, which was the same as a separation de corps. At the same time, the tribunals in Paris held that they might exercise a jurisdiction in reference to what was to be done in the meantime, until the result of the suit in the Ecclesiastical Court in this country was known. There were two young children of this marriage residing with their mother in Paris, and the French tribunals made what we should call a sort of interim order that the children should continue with their mother until the proper tribunal in this country should decide the question of divorce. But then, supposing a divorce a mensâ et thoro was obtained in the English court, the parties were still left at sea as respected what was to be done with the children, and the father instituted a new proceeding in the Court of Chancery to obtain the custody of the children, and the parties in the case being very rich, a nominal sum in order to enable the Court of Chancery to exercise its jurisdiction was invested in the three per cents for the benefit of the children, and he (the Lord Chancellor) had to decide the question as to the custody of the children, while there was a proceeding pending in the Ecclesiastical Court, in the nature of a divorce a mensâ et thoro. He had been informed that the French tribunals would hardly believe that the same tribunal could not decide whether the parties were to live together, and which of them was to have the custody of the children; and I thought that nothing can be more rational and proper than that both questions should be decided by the Court of Chancery. It is on these grounds I have recommended that the jurisdiction over matrimonial causes not involving divorce a vinculo matrimonii should be confined to the Court of Chancery. I have now stated very shortly the views I take on this subject; and with these observations I will only express a hope that your Lordships will give the Bill a second reading.

Moved, That the Bill be now read a Second Time.


said, he entirely agreed with the general provisions of the measure proposed by his noble and learned Friend, and in the principles which he had laid down he most entirely coincided, both as to the limits on the power of divorce and as to the expediency of keeping as nearly as possible, in any new jurisdiction about to be established, to the principles upon which that anomalous jurisdiction of the Legislature had hitherto proceeded, making in each case a special law contrary to the general law of the land. He might remind their Lordships that a Committee of that House, which sat on this subject a few years ago, were unanimously of opinion that it was highly inexpedient to continue the present course of proceeding in matters of divorce. Two Prelates and the Primate were Members of that Committee. The subject had also been referred to a Commission of which the present Lord Chief Justice was the head, and underwent an investigation worthy of the importance of the question and of the high character of the Commissioners. They had the invaluable aid of their secretary, Mr. Macqueen, well known to the House by his Reports and by his most useful work upon its practice. They made their Report to the House last Session, and the present measure was founded upon their recommendations. There were some differences—one or two of which were material—between the Bill and the recommendations of the Commissioners; but, generally speaking, the latter formed the groundwork of the present measure. It would, in his mind, constitute an objection to the proposed transfer, if he thought it likely to add much to the pressure of business in the Court of Chancery; but, considering the limited number of such causes, the measure was not likely to produce that effect. It appeared from the Report of the Commission, that in a period of six years there had been only eleven opposed causes of divorce a mensâ et thoro. [Lord CAMPBELL said, that related to one diocese only.] He thought that was the total number, and certainly it was the number in the great central jurisdiction of London, where the bulk arose; but at any rate the transfer of this class of cases would not add much to the business of the Court of Chancery. There were two points to which he wished to call the attention of their Lordships. These related first to the judicature, and secondly to one or two particulars respecting the limitations to the authority of the new court proposed to be constituted. With respect to the judicature, the Bill proposed to transfer all matrimonial causes except questions of divorce a vinculo matrimonii to the Court of Chancery. With regard to the other and more important class of cases, those of divorce a vinculo, the result would, he feared, be different. His noble and learned Friend near him—(Lord Redesdale)—he might say his hereditarily learned Friend—was of opinion that it was dangerous at all to facilitate the granting of divorce a vinculo matrimonii. He (Lord Brougham) admitted if the mode of obtaining a divorce was made too easy, it would have a tendency to lessen the motives of the parties concerned to accommodate their differences; and, except in the single case of adultery, he would be as strongly opposed to any proposition for extending the power of dissolving the marriage tie as his noble and learned Friend could possibly be. But was there reason to apprehend that making divorce a vinculo a judicial instead of a legislative proceeding would increase the number of cases? For evidence on this point he might refer to the case of Scotland. In that country since the Reformation, the power of dissolving marriages had always been a matter of judicial and not of legislative cognisance, and he found that the average annual number of divorces a vinculo had been somewhat less than twenty on the average of the last five years for all Scotland. Some might think the morality of Scotland was higher than that of England; some might think it lower; but taking it to be equal, we might expect—looking to the relative population of the too countries—that the number of cases of divorce a vinculo would amount in England to above 100 annually. Now if, as was probable, many of these causes should occupy a considerable time, he could not see how it would be possible for the court to get through its business. The presence of the Lord Chancellor and the Chief Justice was essential to the court, and every one knew how much the time of those high legal functionaries was occupied elsewhere. These doubts of his were thrown out merely for the consideration of their Lordships; but he wished to be understood as entirely approving of the change from the legislative to the judicial machinery, and, in conclusion, he returned his thanks to his noble and learned Friend (the Lord Chancellor) for the able and judicious manner in which he had attempted to deal with a subject beset with difficulties.


said, that having been at the head of the Commission referred to by Ids noble and learned Friend who had just addressed the House, and having the honour to be proposed a member of the court proposed to be established by the Bill, he considered it his duty to state his views upon the subject. It was his wish that their Lordships would unanimously vote the second reading of the Bill; but, at the same time, he trusted that they would make considerable alterations and improvements in it during its passage through the House. The two great objects of the measure must meet with universal approval—namely, the transference from the Ecclesiastical Courts of matrimonial causes, and the transference from Parliament of the function of dissolving marriages a vinculo. Practically speaking, for two centuries the law had been that a marriage might be dissolved by reason of the adultery of the wife; but that had been carried into effect, not judicially, but legislatively—namely, by an Act of Parliament passing both Houses of Parliament and receiving the Royal assent. This was an anomalous and preposterous state of things, and frequently led to the most unjust consequences; because even with regard to those who could afford the expense of obtaining the existing remedy, it caused great delay and vexation, and great unnecessary expense; but—what was worse—with regard to the great bulk of Her Majesty's subjects—and they were by far the largest proportion—it constituted an insurmountable barrier against the obtaining, of relief. He would illustrate this point by a trial which took place a few years ago before a learned Judge, who had to try a prisoner for bigamy. The case was clearly made out; he was proved to have married another woman, his first wife being still alive; and he was asked, if he had anything to say why sentence should not be passed upon him. The prisoner said, the case was really one of great hardship; his wife was not only an adultress, but she lived with another man, and as she had taken another husband, he thought he might take another wife. "But," said the Judge, "your course ought first to have been to bring an action against your wife, to be tried before a judge and jury; and then, having recovered a verdict, you ought to have instituted a suit in the Ecclesiastical Court to obtain a divorce a mensâ et thoro; and having done that, you should then have petitioned the House of Lords for a divorce, and brought in a Bill and proved at the bar of the House of Lords the infidelity of your wife; and then, having obtained the sanction of one branch of the Legislature, you ought to have carried your Bill to the House of Commons, and asked them to concur in it; and having done that, you would then have had to obtain the Royal assent; and if you had succeeded, without any extraordinary expense, all this might have been accomplished for 1,000l." "My Lord," said the man, "I never was worth 20l. in all my life, and I have not now a single farthing." The learned Judge replied, "You must obey the law; you have married a second wife while the vinculum matrimonii still subsisted, and I must send you to gaol." Cases of this kind frequently happened, and scenes, too, occasionally occurred in Parliament, in connection with Divorce Bills, which were degrading to the Legislature. He quite agreed, therefore, that instead of a marriage being dissolved by the Legislature, there ought to be a judicial tribunal before which the necessary facts should be proved, on which should be founded the dissolution of the marriage. Then, with regard to matrimonial causes, why should they continue under ecclesiastical jurisdiction? In the times of Popery, indeed, the reason for the necessity of Ecclesiastical Courts taking cognisance of those causes was, that marriage, by the Catholic religion, was held to be a sacrament, and could not, therefore, be dissolved by the ordinary tribunals; but that the bishop must, either by himself or by his judge, take into his exclusive consideration the question whether such marriage had been properly constituted, and whether there was any ground for declaring it a nullity, or whether a dissolution a mensâ et thoro should be granted. But since marriage was no longer regarded as a sacrament, but was considered only in the light of a civil contract, there could no longer exist any necessity for citing the parties before an ecclesiastical tribunal. He did not for a moment doubt that the object of the Bill was most excellent, and he likewise entirely approved of the principle upon which it proceeded. He did not agree with the noble Lord (Lord Redesdale), whose able protest would be found in the Report, that there ought not to be any dissolution of marriage a vinculo matrimonii under any circumstances; still he was of opinion that their Lordships ought to proceed most cautiously, and that adultery should be the only ground upon which a dissolution of a marriage should be decreed. But, while agreeing with the principle of the Bill, he was sorry to say that he felt considerable doubts as to the advantages of many parts of the machinery by which that principle was to be carried out. He was rather surprised to hear his noble and learned Friend say, that there were some slight modifications of the suggestions made in the Report of the Commissioners. The fact was, that there were not only slight modifications, but most material alterations of the principles of that Report. In the first place the Commissioners unanimously recommended that there should be only one tribunal as regarded divorce a vinculo and divorce a mensâ et thoro. His noble and learned Friend said, he had the greatest reluctance to establish a new tribunal; but here he was actually establishing a new tribunal; and that being so, why, instead of having two tribunals for the two descriptions of divorce, did not his noble and learned Friend at once create one tribunal which would take cognisance of all causes affecting the matrimonial contract? He would imagine that a suit was brought before the new court to dissolve a marriage, and that that court held that there was not sufficient ground to grant a divorce a vinculo, as prayed, but that there was ample ground for granting a divorce a mensâ et thoro—what would be the consequence? The court thus to be created by his noble and learned Friend would not have the power to grant such a divorce, and the party, after all the expense he had been at, would have to go to the Court of Chancery and begin his suit anew. He had no doubt the new court would discharge its functions well, and would be deserving of the character which his noble and learned Friend had ascribed to it. He should feel himself honoured in sitting in such a tribunal:—but what was to become of matrimonial causes? They were to go to the Court of Chancery. He had nothing to say against the Court of Chancery—he honoured and respected it for all the purposes for which it was created; but was there anything in the nature of matrimonial causes which should make the Court of Chancery better suited to take cognisance of them than any other court? Suppose a suit for annulling a marriage or for a divorce a mensâ et thoro, was there anything in the study of equity rather than of law which should endow an equity judge with a superior capacity to perform the duty of deciding in such a suit? He could not discover any peculiar advantage to be derived from such a course of study. But if a peculiar jurisdiction was to be established for taking cognisance of these cases, he thought the duty would be better performed by a single tribunal always devoted to them, than by several tribunals scattered about in different courts. There were no less than seven Judges of the Court of Chancery—the Lord Chancellor, the two Lord Justices, the Master of the Rolls, and the three Vice Chancellors. These matrimonial cases would be scattered indifferently among them all. He had given his consent that testamentary causes should go to the Court of Chancery only upon the supposition that they would be confined to one branch of that Court; so that, in fact, that branch of it would be a court of probate in the Court of Chancery. But if these matrimonial cases should by accident come to be heard, sometimes by one of the seven Judges of the Court of Chancery, and sometimes by another and another of them, he very much doubted whether all of them would be so well qualified to decide upon such cases as the present Judges of the Ecclesiastical Courts. He did not believe that this peculiar branch of the law would be by any means so well understood by each and every one of those seven learned equity Judges as it was now by the ecclesiastical Judges. He trusted his noble and learned Friend would reconsider this part of the subject, and would pay more attention than he appeared to have done to the representations of the Commissioners, among whom were Dr. Lushington, Mr. Walpole, a most distinguished jurist, and Vice Chancellor Wood. The Commission (to which he himself also had the honour to belong) received most able assistance from their secretary, who acted gratuitously. The Commissioners, after great deliberation, unanimously concurred in opinion that there ought to be only one tribunal for divorce and for other matrimonial causes, and that that tribunal ought not to be the Court of Chancery. He felt very much indebted to his noble and learned Friend for having introduced the Bill, but at present it appeared to him to be liable to great objection as regarded the machinery by which it was proposed to be carried out, and would require many material alterations before it could be passed into a law.


said, that having been a member of the Commission appointed to inquire into this subject, and having differed from his Colleagues on the most important point, he hoped he might be allowed to offer a few observations to their Lordships. After giving very great deliberation to the points which came under their consideration, he had come to the conclusion, that in any legislation on the subject they ought to adhere to the ancient law of the land, which held marriage to be indissoluble, and not to introduce, for the first time, a new principle into their jurisprudence, by which marriage should be rendered dissoluble by process of law. This alteration would lie one of the widest possible kind; and their Lordships, possibly, did not appreciate the extent to which the alteration would go, because they belonged to a class to whom a remedy had always been open. He entirely differed from the noble and learned Lord who had just sat down, who had said that the law, practically speaking, dissolved marriage in this country; for he (Lord Redesdale) maintained that, practically speaking, the law made marriage indissoluble, for the means by which it could be dissolved were not accessible to the great majority of the people. The fact was, that from the earliest period to the present time, the common law of the land had considered the marriage tie to be indissoluble; and it was now proposed to reverse that condition of the marriage contract, and to render a dissolution, on adequate grounds of complaint, accessible as an ordinary course. At the time that he was appointed a member of the Commission, he entertained the opinion that divorce was permitted by the law of God, and that some new course in respect to obtaining divorce must, in some shape or other, be adopted; but when he came to examine into the Scripture authority for the practice, and to consider the whole bearing of the question upon the morals and social happiness of the community, and what must be the necessary consequences of tailing even a very slight step in the direction that appeared to be contemplated, by appointing a Commission to inquire into the subject, he felt that he could no longer retain his opinion, and he felt it his duty to differ from his fellow Commissioners in the Report they prepared in all that related to divorce a vinculo. He approved of the recommendations of the Report as to the constitution of a new tribunal for matrimonial causes, but he was satisfied that, if the principle is once admitted that divorce a vinculo ought to be a common legal remedy, it will be impossible to retain the exclusive jurisdiction over such divorces to a tribunal so constituted. Their Lordships must bear in mind that what it was now proposed to do would not meet the case of the poor man. Under the present measure a divorce could not be obtained except at a very considerable expense. It would be procurable, no doubt, at a less expense than by a Bill in that House—it would not be as accessible as it was by the law of Scotland, nor at a cost that would throw it open generally to the people. The Bill proposed to create a new Court, with three of the highest Judges of the land to preside over it; every care was taken that no laxity should creep into their judicial practice, that the proceedings should not be too easy, and that every step should be carefully watched. Now he (Lord Redesdale) maintained, that it would not be giving an effective, or a generally accessible remedy to keep the jurisdiction in the hands of such a Court as this; and that if a divorce a vinculo was to be considered a right and a legal remedy for adultery and cruelty, they must be prepared to make further concessions in the same direction, and ultimately place the proposed relief within reach of every class of the community, by extending the jurisdiction to cheaper and inferior courts; and this, in his opinion, would be a most objectionable course to adopt. In Scotland, the evidence in matters of divorce was taken before inferior courts, and the result, he believed, was by no means satisfactory. He fully agreed as to the inexpediency of the present mode of granting relief, and thought that the sooner it was done away with the better; but then his opinion was, that the relief ought not to be granted to any. At present, a divorce a vinculo could only be obtained, upon certain preliminary conditions, by an application to the Legislature, which only the wealthy could prosecute. That certainly was an anomaly; and, for his part, he should prefer to put an end to it by abolishing altogether the means of obtaining divorces. But let their Lordships consider how little, in fact, the people of this country had concerned themselves about the matter;—there had been no desire anywhere exhibited for the change proposed. There was nothing that so readily excited the feelings of the people, as the idea that there was one law for the rich, and another for the poor. How then did the matter stand in regard to the question of divorce? Hitherto they had been granted exclusively to the rich; but had there been any public demand for an alteration of the law on this subject? Not the least;—there had been no petitions in favour of an alteration, nor the least expression of a desire for a cheap tribunal for granting divorces. It appeared, therefore, that there was no necessity for extending this licence to the poor; and as to the rich, they seemed very little disposed to make use of their privileges, for there were not more than two or three divorce Bills presented in the course of each Session. When he considered these things—when he considered the sanctity with which the people of this country regarded the marriage tie, and how universally the faithless wife was looked upon with abhorrence, he could not but think it was most unwise on the part of the Legislature to come forward to alter the law of divorce. For a hundred years after the Reformation, there had been no divorces granted in this country. Then came Lord Roos' case, then came the Earl of Macclesfield's case, and then the case of the Duke of Norfolk, and other cases exclusively confined to Members of their Lordships' House. Divorces having been granted in these cases, other parties were induced to come forward and ask for a similar remedy, and afterwards it became a recognised practice; but, even then, up to the beginning of the present century, the number of divorces granted in a year did not exceed two or three. lf, then, in the wealthy classes, they had so few cases of divorce, and from the middle and lower classes so little demand for any alteration of the law, he thought that, if that House came forward and made the first opening, they would be doing that which would have a most prejudicial effect on the morals of the country, and upon the domestic happiness of the people. He had abstained from entering into the religious view of the matter. He was aware that the religious views of the most learned and conscientious persons widely differed on this subject, both in favour of and against divorce; but by far the largest part of Christendom concurred that the marriage tie was indissoluble, and in that view the people of this country seemed decidedly to participate. For these reasons he could not agree to the second reading of the Bill; and if it should be read a second time, he should feel it his duty to move, at a future stage, an Amendment, which should have the effect of preventing the granting divorces a vinculo, under any circumstances by any court.


said, it was quite clear that the present state of the law of divorce, and of the courts in which it was administered, could not be continued. On this they were all agreed, and it therefore became necessary to ascertain how the existing state of things could be best remedied. He had read with great admiration the protest of his noble Friend (Lord Redesdale), but he believed it was impossible at this time of day to say that there should be no dissolution of marriage. It was argued that by making a marriage dissoluble you prevented a reconciliation between the parties; but it seemed to him that reconciliation after such a crime as adultery should not be considered within the bounds of possibility, and therefore on that ground he dissented from his noble Friend's position. But if they allowed divorces generally, and left either party at liberty to marry, he feared that there might be such an increase of suits to dissolve marriage as would lead to very great inconvenience. In the present state of the law the remedy was expressly confined to adultery, or as regarded the remedy of the wife to a case of incest, and this was a state not open to general objection. With regard to modifications of juridical practice and alterations in the jurisdiction heretofore possessed by the Ecclesiastical Courts, they ought to know the whole scope and general effect of the proposed alterations, and the exact object it was intended to accomplish, before passing any partial measure. But he had to complain that these Bills were brought in one by one, before their Lordships were at all acquainted with the whole scope of the measures that were to be introduced. The House had already transferred to the Court of Chancery jurisdiction in testamentary matters; and in that measure he concurred, but only on the condition that the business should be confined to one branch of the Court. However, a clause which the noble and learned Lord on the woolsack carried after a division authorised the Lord Chancellor from time to time to direct in what court the business should be transacted, so that, under that clause, the Lord Chancellor had the power to divert the business from one branch of the Court to another. The mischief would be increased by the present Bill, for it proposed to carry all matrimonial causes, other than applications for divorce a vinculo matrimonii, generally into the Court of Chancery; besides the subsidiary objection that this course of proceeding would have the effect of destroying, root and branch, a learned bar, capable of assisting the Court by its peculiar knowledge, and of advising the Ministers of the Crown in matters of national right. Let their Lordships look at the painful character of the cases to which the present Bill referred, and the nature of the evidence which they called forth; and he must say that this new business was not exactly such as he should like to see the Court of Chancery engaged with, and it must necessarily occupy a good deal of the time of the Court, as cases arising all over England would be brought before it. To try cases where a dissolution of marriage was desired a new court was proposed to be created, and evidence was to be taken vivâ voce in open court, which was, besides, to have the power to call the parties before the court for the purpose of examination. Now, he looked with some dread at an examination in open court of a husband or a wife upon a question of this sort. He thought that if a temptation could be held out for perjury, it would be by an examination of such a kind. But though the evidence was to be vivâ voce in respect to cases for a dissolution of marriage, in other matters brought before the Court of Chancery, such as applications for separation a mensâ et thoro, the evidence was not to be taken in open court, but in the ordinary form before an examiner. Where was the sense of such a provision? Why should there be two courts for the same object, and two modes of procedure for the same general class of eases—for the separation a vinculo matrimonii and the separation a mensâ et thoro were both matters of divorce—and why should one court hear the case on oral testimony and the other on written depositions taken before an examiner? By experience from cases brought before that House their Lordships were aware that nothing was so difficult as to get at the facts in applications for divorce. The parties came before the House with the determination to conceal everything that could be concealed. There was no counsel, except on one side, and no cross-examination, and, therefore, the parties told what they liked and proved what they pleased, and it was only by extreme vigilance on the part of their Lordships, and by following up an inquiry in consequence of something that might have dropped from the witnesses, that the House was enabled to get at the real case. The same thing would take place under this new jurisdiction. He was of opinion that they were not yet prepared for a general measure of legislation on this subject which would be satisfactory to the country, and he thought it impossible that any measure could be satisfactory Unless the question of the conflict of practice arising out of the difference of Scottish law was settled at the same time. Again, if a court was to be established for the trial of matrimonial causes, was it possible to leave unconsidered the present right of action for damages for criminal conversation, which was a disgrace to the country and civilisation? Were they to establish a competent tribunal for the adjudication upon all cases of divorce, and still leave this action as a stigma upon the law of England? If they did, it was evident that whilst this new court was sitting upon the question of whether there was to be a dissolution of marriage or not, the Court of Common Pleas or Queen's Bench-in the absence of the Lord Chief Justice—might be at the same moment trying an action for damages for the very offence that the other court was investigating, and might possibly arrive at a different conclusion with respect to the merits of the case. It was clear that some conclusion must be come to with respect to the retention of this action. if it were decided to retain an action which shocked one's sense, it should clearly fall within the jurisdiction of the court to which belonged the decision of the question, whether there was or was not ground for a dissolution of the marriage. Now, it appeared to him that the Bill of his noble and learned Friend was wholly defective in not dealing with the question of the retention of this action, or of the court before which it should be heard, if it was decided to retain it. If it was retained, it should clearly belong to the matrimonial court; because then, if actions for damages and for a dissolution of marriage were brought in the same court, it would have such evidence before it on the first action as would enable it to decide the question of the dissolution of marriage almost without any additional trouble. But for his own part he thought the action for damages should not be retained. There was at present an excuse for its retention, because that House would not in general grant a dissolution of a marriage unless an action had been brought and damages had been recovered; on the ground that the party seeking the dissolution ought to show that he had sustained an injury, and that his conduct had been such that a jury deemed him entitled to redress. But such a proceeding would not be requisite if they established a new court, with absolute judicial power at once to decree a divorce a vinculo matrimonii if it thought fit. Should this action be retained, there would indeed be this difficulty in referring it to a court were there was no jury—that, whereas, before a jury there was the opportunity of entering into evidence as to the conduct of the man, so as to show that although the woman's conduct had been blameable, yet that her husband had also been so blameable as not to be entitled to damages, whilst it would not be possible for the Judge of the new court satisfactorily to enter in this manner into the conduct of the man. This Bill proposed to create two new jurisdictions. The Court of Chancery was to entertain matrimonial causes generally, while divorces a vinculo matrimonii were to be heard before a court otherwise constituted. Now with regard to the latter court. First, it was perfectly clear that the time of his noble and learned Friend on the woolsack was already so fully occupied in the Court of Chancery and in the hearing of appeals in this House, that he would be quite unable to perform the new duties proposed to be assigned to him. Indeed, he was already overburdened with work; he had absolutely no holidays, for when this House had a holiday he was obliged to sit in the Court of Chancery, and when the Court of Chancery had a holiday he was obliged to sit in this House. The same remarks would in a great measure apply to the Master of the Rolls and to the Lord Chief Justice, who were also to be members of this new court. It might, indeed, be said that, judging from experience, the business of the new court would be exceedingly light; but he believed that the effect of its establishment would be greatly to increase the number of applications for the dissolution of marriages. Then, with regard to the reference of general matrimonial causes to the Court of Chancery, the House ought to recollect that the duties of that court were to be largely augmented by the Testamentary Jurisdiction Bill, and that if they went on thus from day to day throwing new duties upon this court and its officers, they would bring back all the delays in its procedure which our recent legislation had been intended to remove. His noble and learned Friend on the woolsack, however, deprecated the establishment of any new courts, and he (Lord St. Leonards) agreed with him in this. But the fact was that this Bill did establish a new court, with two new Judges, and it, moreover, east upon the Court of Chancery business which was altogether inconsistent with its present duties, and which would render it absolutely necessary to appoint a new Vice Chancellor. It was said, indeed, that this was merely the appointment of an additional Judge, and not the establishment of a new court; it would, however, in reality amount to this, because it would render necessary a new bar and new officers. In his opinion it would have been better to establish a single new court for the hearing of both testamentary and matrimonial causes. He should not, however, oppose the second reading of this measure, but he hoped that his noble and learned Friend on the woolsack would give his best consideration to the various suggestions and objections which had fallen from both sides of the House.


wished to ask what was the meaning of the sixth section, which empowered an information to be filed for the dissolution of marriages on the ground of the consanguinity between the parties. Now these marriages were already void ab initio under Lord Lyndhurst's Act.


said, that that clause was perhaps unnecessary; it had been introduced ex abundante cautelâ, because there was at present a proceeding of a similar character in the Ecclesiastical Courts, and not with any intent to alter the present law. As the measure he proposed had in substance obtained the approval of their Lordships, he need not offer many observations. As far as lie could collect from noble Lords, the only objections which had been made to the Bill in the course of the discussion appeared to him to have reference to the nature of the tribunal to which questions of matrimony and divorce were in future to be referred. His noble and learned Friend the Lord Chief Justice had remarked that when he (the Lord Chancellor) stated that he had adopted with but slight modifications the recommendations of the Commissioners to which this subject had been referred, he did not fairly represent what he had done. He thought, however, that he could show that he had not departed very materially from the suggestions contained in their Report. That Commission proposed that the court for entertaining applications for divorce a vinculo matrimonii should consist of three functionaries, a Vice Chancellor, a common-law Judge, and a Judge of the Ecclesiastical Courts; but it could not have been meant that these three functionaries should constitute a new court and discontinue their previous functions. As he understood the case, the Commissioners proposed that those learned persons should, in a suit for a divorce a vinculo matrimonii, constitute a tribunal pro hâc vice, but that they should not be considered as forming a new court. It was in that sense he understood the proposal of the Commissioners, and he had to a certain extent adopted the suggestion. The whole extent to which this Bill varied from the plan proposed by the Commissioners was, that, instead of a Vice Chancellor, he proposed to appoint the Lord Chancellor; instead of a common-law Judge, the highest common-law Judge; and instead of having three Judges, to have five, of whom three should be a quorum—a regulation that would be found very convenient in a court coming together only from time to time. He had then added the Master of the Rolls; and then there were to be two other Judges appointed by Her Majesty. Now, no doubt, at first, the persons so appointed would be selected from the Ecclesiastical Courts; but afterwards, when these courts ceased to exist, they would probably be appointed from among the common-law Judges. He could not say that he thought, in substance, there was any great difference between the court of divorce proposed and recommended by the Commissioners, and the plan which he had submitted to their Lordships; but there was this distinction between it and what was proposed by his noble and learned Friend—that if all matrimonial causes were to be attached to the new tribunal, that tribunal could not possibly be constituted in the manner recommended by the Commissioners, because there would be more business to be despatched than could be managed by persons taken from time to time to constitute a court. The alternative was to constitute a new court to have jurisdiction in all matrimonial causes, with power of granting divorces a vinculo matrimonii; or that the more rare causes—those for a divorce a vinculo matrimonii—should be referred to a court created pro hâc vice on some such principle as that proposed by the Commissioners, while other matrimonial causes should be referred to one of the existing courts. This was, then, the choice left to him to propose, to constitute a court de novo, or to constitute a court composed on the principle recommended by the Commissioners to grant divorces a vinculo matrimonii, and to refer other matrimonial causes to some existing court. He had been of opinion—and he still maintained that opinion—that it was better, however it might be necessary to multiply the number of the Judges in the existing courts, to avoid, if possible, the creation of new courts with an ill-defined jurisdiction; for, if the contrary principle were adopted, it would give rise to frequent embarrassment upon matters of form. This was almost the only country in which a division of the various tribunals was carried to so great a length, and, in his opinion, that such was the case was a blot upon our system. And although he did not think it practically a blot of such importance that he ought to undertake merely speculative reforms, in order to reduce our system into closer accordance with the principles of jurisprudence, he certainly thought that these considerations should induce us to avoid multiplying jurisdictions for the future as far as possible. In that view he thought that the Court of Chancery was the best tribunal for deciding matrimonial causes, although he was willing to give consideration to any argument which might be advanced against that opinion; but he objected to constitute a new court, because he could never admit that a tribunal, which had power of pronouncing divorces a vinculo matrimonii, ought to consist of any but the highest Judge of the law. The Commissioners stated, as a consideration of great importance, that this was not a matter to be safely intrusted to a single Judge; and but for that recommendation be should have recommended the Court of Chancery as the tribunal to have jurisdiction in such matters. He accepted, then, the recommendation of the Commission, that the power of granting divorce a vinculo matrimonii ought not to be granted to a single Judge; and then came the question as to the expediency of creating a new tribunal, with power to deal with all matrimonial causes. Was there any ne- cessity for such a proceeding? He did not think there was any such necessity. A noble and learned Friend of his not then in the House (Lord Brougham), had made use of a sort of statistical reasoning, drawn from the state of affairs in Scotland, and he had argued that if, with the population of Scotland, there were twenty cases of divorce a year in Scotland, there would be many more in England; but his noble and learned Friend had quite forgotten that in Scotland divorces were obtained not only for adultery, but for a variety of other causes. The number of suits for divorce in this country now amounted to about two in the course of the year, and it could not surely be said, that for those cases it was necessary to establish a new court. With regard to what had been said as to the time at the disposal of the Chancellor, there were, no doubt a great many duties to perform, and he did not know that it would be possible to perform very many more; but it was quite uncertain what addition to his duties the present proposal would involve. No doubt cases of this description might increase, though, after all, most of these changes were merely experimental. It might be that in a few years there would be so large an increase in these cases that it would be impossible for the Lord Chancellor to attend to them, and, if this were so, those who came after the legislators of the present day must alter the mode of dealing with them. He did not, however, think it would be wise at first starting to create a new tribunal, which, he believed, would have comparatively little to do for many years to come. He would, however, give a careful consideration to the criticisms that had been made upon the Bill, he must own, in no unfriendly spirit, and he would see what alterations he could make in accordance with them, before the Bill went into Committee.

On Question, Resolved in the Affirmative.

Bill read 2a accordingly.

Back to