HL Deb 30 June 1854 vol 134 cc935-47

Order of the Day for the House to be put into Committee (on Re-commitment) read.

Moved, That the House do now resolve itself into Committee.


said, that either on the report or third reading of the Bill he should move the omission of the clauses relating to divorce a vincu1o, as he wished that question to be debated separately from this Bill, which treated the subject as if founding a new court for the administration of the existing law, whereas divorce a vinculo never was the law of this country from the earliest period down to the present day. He hoped their Lordships would solemnly consider that, al- though under the existing law the morals of the country with regard to the sanctity of the marriage tie had been spoken of as an example for other countries, they were about to introduce a complete change, and make divorce, for the first time, a common remedy which any one could seek and obtain. At the present moment divorces a vinculo were treated as exceptional cases, two or three only occurring in each year, and were in no way recognised by the law of the land.


said, he would be perfectly prepared to discuss the question raised by his noble Friend in any shape, or at any time he might think most convenient to introduce the discussion. It might be their course hitherto had been wrong—they might be bound to retrace their steps, or to advance in another direction, and make some modifications in the present practice. At all events, he hoped his noble Friend would consider, before he finally made up his mind on the subject, that the present system could not possibly be continued, unless they were prepared to say that it should be competent only to one class of the community to obtain the remedy in these cases—namely, that class which could afford to pay for it.


begged to remind the noble and learned Lord that he had always said he thought that the remedy ought to be got rid of altogether. It was not the law of the land. An exceptional law was made in each case to get rid of the existing law, leaving the law as it stood, and under Which this country had prospered in morality for thousands of years.


hoped that adultery on the part of the wife would be considered ground for dissolving marriage, as was accordant with reason and Scripture.


said, that this question was one of too great importance to be disposed of in a merely cursory debate. He had given notice of his intention to move in the Committee on this Bill certain Amendments; but before their Lordships went into Committee, he proposed to state what his views were of the machinery of the Bill. Their Lordships were aware that it was deemed necessary that there should be an alteration with regard to the Ecclesiastical Courts generally; and that the question of testamentary jurisdiction was referred to one Commission, divorce causes to another, whilst ecclesiastical discipline remained for de- cision. The Commissioners who considered the great question of testamentary jurisdiction reported that, in their opinion, a new court should be established for all testamentary matters. His noble and learned Friend the Lord Chancellor so far departed from that Report as to propose in the Bill which had gone down to the other House to transfer to the Court of Chancery the whole testamentary jurisdiction. Considering the importance of those questions being taken before one court, with complete jurisdiction, instead of before several judges, he concurred in that view; but he should not have concurred if he had known that it was proposed to transfer to the Court of Chancery divorce causes also. The Commissioners to whom was submitted the question of divorce, in their Report expressed an opinion in favour of one court, but that not the Court of Chancery; yet in this matter also his noble and learned Friend had departed from the recommendation of the Commissioners. He did not find fault with him for not following exactly the Reports of the several Commissioners, but their resolutions certainly must have great weight, and be necessarily received with great respect. His noble and learned Friend, however, proposed to transfer all causes matrimonial, except divorce a vinculo, to the Court of Chancery bodily, and to constitute a new court, consisting of the Lord Chancellor, the Lord Chief Justice, the Master of the Roils, and three persons appointed by the Crown, for the consideration of divorces a vinculo. He agreed that divorces a vinculo required some higher authority than ordinary matrimonial causes; but he ventured to suggest that, instead of creating a new court, a simple clause should be inserted, directing that those cases should be heard by the Lord Chancellor in his own court, with the assistance, pointed out by the Commissioners, of a common-law Judge, and an Ecclesiastical Court Judge; while other branches of the Court of Chancery should administer the law in all other matrimonial Causes. He hoped, if his noble and learned Friend persisted in transferring these causes to the Court of Chancery, he would adopt that suggestion. But, for himself, he objected to their going to the Court of Chancery at all. There was a tendency, inevitable, perhaps, in many cases—and if not inevitable, not avoided—to delay, of which the suitors deeply complained; but if testamentary jurisdiction and jurisdiction in cases of divorce were to be transferred to the Court of Chancery, the machinery of that Court would become so clogged as absolutely to render it powerless, deprive the public of the benefits of recent alterations, and render nearly nugatory the advantages which had been gained at so great a price and after so much trouble. It was quite impossible that Court, though charged with deciding rights to a greater amount of property than all the other courts put together, could continue to exercise its functions, if from day to day, and from hour to hour, it was to be burdened with new labours and onerous jurisdictions. The Court of Chancery had never decided questions of divorce. It had nothing to do with the subject. his noble and learned Friend would say that it had jurisdiction over children. Nothing could be more distinct than the whole subject of marriage and the jurisdiction over children, which amounted only to jurisdiction over children where property was involved. If a new court were created, that court could more properly take the jurisdiction of the Court of Chancery as to the care of infants than the Court of Chancery could take jurisdiction over matrimonial causes. Jurisdiction over children was not often exercised, and it afforded no reason why the great business of divorce should be transferred to the Court of Chancery. His noble and learned Friend Seemed to think the business would be of a trifling nature, and would not greatly add to the labours of the Court of Chancery. He (Lord St. Leonards) believed, on the contrary, that there were no cases which occupied more time, or were more expensive, than those which by this Bill would be transferred; and he felt perfectly confident that, if testamentary jurisdiction and matrimonial causes were both transferred to the Court of Chancery, a weight of labour would be added to the duties of that Court which it would not be able to discharge. The noble and learned Lord might be prepared to say that if such should prove to be the case, they could create a new Vice Chancellor. He wholly objected to the appointment of a new Vice Chancellor, because it would be the same thing as establishing a new court, which must have a separate bar, a separate place of sitting, and separate officers to attend it, and the addition of so many Vice Chancellors to the Court of Chancery would lead to serious inconvenience. He had already called the attention of the noble Earl at the head of Her Majesty's Government to the advantage of keeping together a bar for matrimonial causes and testamentary jurisdiction. In the Ecclesiastical Courts the gentlemen who now practised there were disciplined and learned in international law—men of independence, honour, and high character, whose opinions not only guided the Government in the most difficult cases, but carried a weight with them in Europe; for foreign Governments were satisfied when they found that this Government was acting not merely upon its own will and feelings, but was guided by the learning and opinions of persons who were amenable to the profession and the country for the opinions which they gave. If the whole of these matters were transferred to the Court of Chancery, no such advice or assistance could in future be obtained. The question of ecclesiastical discipline had not vet been touched, although in no respect did these courts require more remodelling. Nothing, for example, could be more disgraceful to a great country like this than to throw upon the Bishops, whose incomes were limited and not thought too much, either the odium of not prosecuting in cases where it was their duty to prosecute, or the risk of having to pay all the expenses. Those were matters which must meet with relief, and he sup- posed next Session his noble and learned Friend would introduce a special Bill, in order to provide for that jurisdiction. It was not with the view of obstructing this measure, but with the view of rendering it effective, that be stated his opinion that the whole subject of the Ecclesiastical Courts, including testamentary jurisdiction, together, matrimonial causes, and ecclesiastical discipline, ought to be considered together, and he strongly inclined to the belief that a separate court must still exist, which would admit of great improvements over those which now existed, for the management of all these difficult matters. A Bill of last Session put an end to the fashion of treating the funds of the Court of Chancery as open funds, and appropriated all the surplus funds to their proper object—the relief of the suitors as much as possible from law taxes. In the Testamentary Jurisdiction Bill his noble and learned Friend took the proper course, and created a particular fund into which fees were to be paid, and out of which were to be paid the expenses and compensations under that Bill. In this Bill a different course was adopted, and all compensations to officers were thrown upon the suitors' fee fund of the Court of Chancery. Nothing could be more unjust, or more in contravention of the Act of last Session, and therefore upon that point he should certainly divide the House. He had repeatedly asked what would be the amount of compensation under the Testamentary Jurisdiction Bill, but he could never get any answer. If they might judge from the past, it would be an amount so enormous as very much to alarm the Chancellor of the Exchequer. There was no account given of the compensation under this Bill; but, be it great or small, he should object to its being thrown on the suitors' fund as a matter of principle. He sincerely wished to see a new jurisdiction created for all these matters. He should, therefore, cordially concur in every measure for creating a perfect tribunal to which all these subjects could be referred, giving to that tribunal all such powers as were necessary; and he trusted he should not be supposed to be offering any obstruction by drawing the attention of the House and of the country to what he considered to be a very important question—the constitution of the court to which all those cases were to be referred.


said, it was not from any disrespect to the noble and learned Lord that he must express his intention not to occupy time by discussing the clauses of this Bill before they went into Committee. The noble and learned Lord made the same objection as he had just urged upon the second reading of the Bill. He made some trifling alterations, but very trifling indeed, because he did not think the noble and learned Lord's suggestions would have effected any improvement. Having done that, the Bill had now arrived at the stage when their Lordships were to go into Committee upon it; and he thought it would be most inconvenient for him to answer now the observations of his noble and learned Friend, as it would probably give rise to a second discussion when the clauses came to be considered. The noble and learned Lord objected to the constitution of the court and to the amount of compensation. With regard to compensation, as he had not alluded to it before, he might say his only reason for charging it on the suitors' fund was that he apprehended that the compensation under this Bill would be extremely small indeed. No courts were abolished by this measure; the jurisdiction in matrimonial causes now existing was to cease, and compensation would only be in respect of what the officers derived from those causes. They were very few. The great bulk of these causes were here in London, and they were only eleven a year. In the country they were hardly ever heard of; but in order to do justice they must provide compensation. He thought, therefore, that, in such a case, it was not fit to create complicated machinery, and therefore proposed to pay the compensation out of the suitors' fund. The Lord Chancellor would impose such fees as seemed to him reasonable to meet the expenses incurred in these causes, and the question of compensation. Under the Testamentary Jurisdiction Bill there was a great extent of machinery, and a new head of accounts in the Accountant General's Office was necessary for payment of salaries and fees; but that was entirely unnecessary in the case of this Bill, where both fees and compensation were extremely small. With regard to the constitution of the court, he could only repeat what he had stated before, that the Divorce Commissioners recommended the constitution of a new court, to consist of a Vice Chancellor, a common law Judge, and an ecclesiastical Judge. It appeared to him, that for the transaction of ordinary matrimonial business that was a very inconvenient mode of constituting a court, for he thought such business ought to be referred to a court that was constantly sitting. The question was, to what court should that business be confided? The Divorce Commissioners said that the Court of Chancery would be eminently adapted for that purpose were it not that they thought a single Judge was not competent to decide such difficult cases. So far, however, as the ordinary jurisdiction was concerned, he did not see why a single Judge in the Court of Chancery should not be as able to transact such business as a single Judge in the existing Eccesiastical Courts. In his opinion, for all ordinary purposes, a single Judge would be even better than what had been called a many-headed tribunal. But he thought the same observation did not apply to the new jurisdiction which was proposed by this Bill, namely, the jurisdiction which was now vested exclusively in the House of Lords, to grant by means of private Bills divorces a vinculo matrimonii. He thought it would not be in conformity with the feelings and opinions of this country to transfer that jurisdiction at once to a tribunal consisting of a single Judge, or to any but a tribunal which should command, as far as possible, all the influence which the judicature of the country could supply. For that reason he thought it better that the tribunal to decide upon divorces a vinculo matrimonii should be a distinct and separate court, consisting of the highest legal functionaries in the land. He proposed, therefore, that the tribunal in question should be composed of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, and two other persons to be nominated by the Crown. The Lord Chief Justice, however, objected that the duties of his office were such that it would very often be inconvenient for him to attend the new court; and therefore it was proposed that three other persons should be appointed, of whom one should always be a common law Judge. It appeared to him that by that means they secured that the public would be satisfied with the tribunal. He remembered it was stated, as an objection upon a former occasion, that he proposed a tribunal having jurisdiction over nothing but divorces a vinculo matrimonii, but who, if they refused such a divorce, could not give any minor relief. Certainly not, because there was no other minor relief which could be given, inasmuch as the reasons for refusing a divorce a vinculo matrimonii would always be reasons for refusing a divorce a Mensâ et thoro, except in the extremely improbable case of a wife suing for a divorce on account of the incestuous adultery of the husband, and proving that the husband had been guilty of adultery, but not with the aggravation of incest. In such a case the wife might be entitled to a divorce a mensâ et thoro, but not to a divorce a vinculo. That was a case, however, which would not occur oftener than once in a century, and the objection founded upon it was one in theory only, and not one that would ever be practically realised. It appeared to him, therefore, that the tribunal created by this Bill was the best that could be constituted. The noble and learned Lord who spoke last suggested what was, in truth, exactly the same thing. He was prepared to give the jurisdiction to the Court of Chancery, but he would impose upon the Lord Chancellor the necessity of hearing the causes alone, assisted by the Lord Chief Justice or some other legal functionary. If, however, the Lord Chief Justice and that other functionary were to be merely the assessors of the Lord Chancellor, the proposed tribunal would be highly objectionable, and lie must protest against it. [Lord ST. LEONARDS: That is not what I mean.] Then, he asked, what was it but a new court? If the Lord Chancellor was to sit with the Lord Chief Justice, or some other legal functionary, that, to all intents and purposes, would be a new tribunal. He did not propose in the Bill to have a single new officer, or to have a single shilling of payment. Not only, therefore, must there be a new tribunal, but in every respect it must differ from the ordinary functions of the Court of Chancery. There must be an entirely new code of procedure. Evidence was to he taken vivâ voce, and there must be a mode laid down for serving parties out of the country. There must also be an appeal, and that appeal must be limited in a very different way from that in which ordinary appeals from the Court of Chancery were limited. He proposed in the Bill that an appeal should be made in the course of three months after the decision of the Court. The constitution of the new tribunal, from the beginning to the end, was totally different from anything else, and its functions were in no way similar to those which the Court of Chancery could exercise. It appeared to him, upon the whole, that the Bill, as at present framed, placed the matter upon a satisfactory footing, and he could not help thinking that it would be regarded in the same light by their Lordships when they had considered it in Committee.


said, that, although he did not approve of the Bill in its present shape, he did not propose to offer any Amendment to it, nor did he concur in the Amendment which his noble and learned Friend (Lord St. Leonards) had suggested; but the advantage of getting rid of the scandalous proceeding of passing Bills of divorce by the two Houses of Parliament, and of getting rid also of the ecclesiastical jurisdiction of the multiplied courts all over England in matrimonial causes, would so far transcend any injurious effect which the measure, as it now stood, would have, that he was ready to pay a very considerable price for the attainment of that benefit. He thought the machinery of the Bill was defective, and therefore he could not approve it; but let them get rid of the existing system of Parliamentary divorces a vinculo matrimonii, and of the present system of matrimonial causes being carried to these multiplied ecclesiastical jurisdictions, and there would be not only a great immediate improvement, but what would lead before long to a still greater improvement. He entirely approved the principle upon which the Bill was founded, that adultery on the part of the wife should be a sufficient ground for dissolving the marriage if the conduct of the husband had been unexceptionable; and he thought his noble and learned Friend had wisely abstained from proposing to do what was now done in Scotland and some other countries—give a latitude to the wife to have the marriage dissolved on account of the adultery of the husband. Reprehensible as the conduct of die husband must be if he was guilty of adultery, still in most cases it might be condoned; and it did not necessarily and inevitably render the marriage tie no longer tolerable to the wife. Unless, therefore, the adultery of the husband was accompanied with such aggravations as were specified in the Bill—incest, bigamy, or other offences to which he would not now particularly allude—he thought the wife ought not to be entitled to a divorce a vinculo, because she might still pardon what had happened and again live happily with her husband. This, then, was a principle of the Bill which he highly approved, and he trusted it would pass into law. Still he could not approve the machinery of the Bill. He concurred in the recommendation of the Commission, to which he had had the honour to belong, and which was composed of gentlemen of the highest eminence, that a tribunal should be created for this express purpose, in which divorces a vinculo and all matrimonial causes should be decided. He could not understand the observation of the noble and learned Lord on the woolsack, that it was desirable to have one tribunal for divorces a vinculo, and another for divorces a mensâ et thoro. There were more cases than his noble and learned Friend contemplated, in which, having made an attempt to obtain a divorce a vinculo, the party seeking relief might be entitled, upon the evidence given, to a divorce a mensâ et thoro. For example, it might turn out that the husband had been guilty of great cruelty, although the more heinous offence of aggravated adultery might not be proved, and that on that account the wife should be entitled to a divorce a mensâ et thoro. Under such circumstances, it would be necessary for her, under the present Bill, having wasted much time, and perhaps the means of herself and friends, in vainly attempting to obtain a divorce a vinculo, to begin de novo in the Court of Chancery seeking a divorce a mensâ et thoro. He trusted, therefore, that if the matrimonial jurisdiction of the Ecclesiastical Courts was to be transferred to the Court of Chancery at all, it would at least be confided to only one branch of that Court. The investigation and decision of such causes would require much study and extensive knowledge on the part of the Judges. Every Chancery Judge did not possess such knowledge as was now possessed by Dr. Lushington, the President of the Consistorial Court in London, or by Sir Herbert Jenner Fast, the head of the Court of Arches, and yet he did not hesitate to say that a Judge who did not possess that knowledge would not be competent to give a satisfactory decision in matrimonial causes. For that reason, in addition to what his noble and learned Friend opposite had said with respect to the overloading of the Court of Chancery, he could not approve some of the provisions of the present Bill. At the same time, he could not vote for the Amendments proposed by his noble and learned Friend, and he was prepared to support the Bill, even in its present shape, rather than consent to allow the law to remain in its existing state.


entertained serious objections to the principle of the Bill, and hoped that his noble Friend (Lord Redesdale) would be able to effect some improvement in it before it passed into law. He thought the necessity for such a measure had not been proved, and although it was impossible to gainsay the proposition, that there should be the same law for the poor as for the rich, and that the present system of passing Acts of Parliament, involving a large outlay and great delay in each particular case, should be changed, he contended that a more serious question was involved in this Bill, namely, whether marriage was to be regarded as a civil contract, and therefore voidable at pleasure, or as a divine ordinance, and therefore indissoluble. He believed that the passing of the Bill would be injurious to the morality of the country by increasing the number of divorces that would be applied for, and he earnestly hoped that if the Bill passed, an alteration would at any rate be made in that clause which assigned what should be a sufficient ground for the granting of a divorce. The case of Ireland seemed to have been overlooked, for in examining the Bill he could not find that any provision had been made for the trial of divorce cases in that country.


said, that the noble and learned Lord (Lord Campbell) had so completely expressed his (Lord Beaumont's) opinions on the subject that he felt it unnecessary to do more than state his concurrence in all that had fallen from the noble and learned Lord. The defect of the measure was, that it did not embody the recommendation of the Commissioners to refer all matters matrimonial to one court. It, however, was no slight advantage to get rid of the disgusting and demoralising examinations in divorce cases at the bar of that House.


, having had the honour to preside over a Committee to which this important subject was referred some years ago, begged to express his great gratification at the propect of the present Bill being passed into a law. The Committee over which he presided, and which comprised a right rev. Prelate, as well as lay and law Lords, came to the unanimous opinion that the course of procedure which had hitherto prevailed in respect to matrimonial cases should be abolished, and a regular court appointed for determining all these matters. Among other reasons which the Committee assigned in support of their recommendation was the triple procedure formerly necessary to obtain a divorce—namely, first, the action at common law against one party, then the proceeding in the ecclesiastical court against another, and, last, the Bill of divorce in their Lordships' House. The public was under a great obligation to the Commissioners for their able and learned Report, and, he might add, the Commissioners themselves were under great obligation to their learned and able secretary for his valuable and gratuitous services.

On Question, agreed to; House in Committee accordingly.

Amendments made.

On Clause 38,


moved the insertion of words which would have the effect of preventing the guilty wife marrying again after her divorce, during the lifetime of her husband, as was proposed by the present Bill. It had always been the law of the Church that the woman could not marry again, and this prohibition was very properly founded on the words of our Lord, "Whosoever marrieth her who is put away, committeth adultery." It would he exceedingly improper, and tend greatly to the encouragement of vice, if during the husband's lifetime the wife should not still remain under the ban of being prevented from marrying again. If the sin of the wife were to be allowed to set her free, the sanctity of marriage, which had hitherto been one of the special blessings of this country, would be threatened and destroyed. He trusted most earnestly that their Lordships would not sanction this innovation upon the old law of the Church and of the land.


thought that by making it illegal for the woman to marry again they would prevent, in many instances, the only reparation which it was possible for the not less guilty party to make.

Their Lordships divided:—Content 10; Not Content 25: Majority 15.

List of the CONTENT.
Clancarty Ossory
Mayo Oxford
Nelson St. Davids
Waldegrave Berners

Amendment negatived.

The Report of Amendments to be received on Tuesday next.

House adjourned to Monday next.