HL Deb 26 June 1856 vol 142 cc1968-87

Order of the Day for the House to be put into a Committee read.


My Lords, I think it will be for the convenience of your Lordships that, before going into Committee, I should shortly state the substance of this Bill as it has come to your Lordships, amended by the Select Committee. I believe your Lordships will approve the Amendments suggested by that Committee. The great object which we had in view, and which, in fact, the framers of the original measure had in view, was to establish a separate tribunal for the decision of matrimonial causes. When the composition of that tribunal was considered, we came to the conclusion that it should consist of the Lord Chancellor, the three chief Judges of the Courts of Common Law, and the Dean of Arches. It was resolved that the Dean of Arches should continue to sit alone in cases such as those which at present come under his jurisdiction; while with respect to causes of divorce á vinculo matrimonii the tribunal should consist of the whole court, or whatever constituted a quorum of the court. It was further considered that as far as relates to appeals, the appeals from the decision of the single Judge should be to the whole court; and that appeals in cases á vinculo matrimonii should be to the House of Lords, not in respect to matters of fact, but with regard to matters of law only—which cases, however, would be of very rare occurrence. Now, I think, my Lords, that after considering the composition of the tribunal thus constituted, you will agree with me and the Committee that it is one likely to fulfil the objects for which it would be created. It is a court dignified in rank, and necessarily full of talent, from the situation held by the Judges; but it is not more competent than a court ought to be which is called upon to try such important questions as would occasionally come before it. So much, then, with respect to the new tribunal, which, I think, will be considered quite satisfactory to your Lordships and the public. Now, as to the alterations in the existing law introduced by the Bill before your Lordships. As the law at present stands, when a wife is divorced from her husband upon her petition complaining of the conduct of the husband either on the ground of cruelty, adultery, or other misconduct of her husband, she is in the situation that whatever property she may acquire either by her own industry and skill, whatever property devolves upon her either by bequest or otherwise, that property belongs to the husband; and not unfrequently—I may say, generally—is applied by him, not to the support of his wife, but to the support of a mistress. Now, my Lords, the Committee considered it right that such a state of things should be put an end to, and accordingly they decided unanimously that where the wife is separated from her husband by a divorce á mensâ et thoro, in consequence of his misconduct, all the property that she may afterwards acquire, either through her own exertions or as devolving on her in any way whatever, she is to hold for her separate use, and may dispose of it as she thinks proper, either by deed, will, or otherwise. I think, my Lords, that you will be of opinion with the Committee, that that is a provision which justice imperatively requires. But another feature in the present state of the law involving a great hardship towards a woman in the situation I have just described is this, that she cannot maintain any action in her own name. She may be subjected to any injury whatever— to personal violence of the grossest description—nevertheless she can maintain no action in her own name unless with the consent of her husband. Again, she can enter into no contract, or if she does, she has not the means of enforcing the obligations contracted towards her. Accordingly the Committee have come to the conclusion that where a woman is separated from her husband under such circumstances, she should be, in respect to suing, entering into contracts, and enforcing contracts, in the position of a femme sole. I think your Lordships will be of opinion with the Committee, who were unanimous upon this point, that the alteration here proposed is a very wise and salutary alteration. And I beg leave to say, from a conversation which I have had with my noble and learned Friend on the woolsack, that although this provision was not introduced into the Bill, nevertheless it had passed through his mind, and that he thought it desirable to make such a change in the law. I now come to the third point, which refers to actions for the recovery of damages in cases of adultery—actions which I consider, in common, I am sure, with many of your Lordships, to be of the most scandalous character. I know that my noble and learned Friend the Lord Chief Justice, while engaged in the trial of such a cause a short time ago, felt called upon to express a hope that the law on that subject would shortly undergo a change. My Lords, I proposed in the Committee that those actions should be abolished. The Committee, however, were of opinion, though not unanimously, against me on that point. I afterwards proposed that the action for damages should be abolished, and a prosecution substituted in place of it, feeling quite certain that it would be far more effectual for the purpose of preventing adultery than any action for the recovery of damages. My Lords, this description of action is really a scandal to the country. There is no other country in the world where such actions are brought; on the Continent they are looked upon with feelings of disgust and horror; and it is wondered at that a civilised country like this should maintain a law of this description. But not only so, to the woman such an action involves the greatest hardship and injustice. She is no party to it—she cannot appear in the cause— she cannot be heard either by her counsel or in her own person—and hence it may happen that her husband and the other party to the suit colluding together, she may become their victim without redress. Such a state of things is contrary to all principles of justice. Now, my Lords, in the Court of Chancery, when a suit is instituted, if it should be objected that on the face of the proceedings some person, not made a party to the suit, is in the slightest degree interested in it, the suit is suspended until that party shall appear in court. However, my Lords, the decision of the Committee was against me on that point, and, as I think, most unfortunately. But I hope your Lordships will take it into consideration, and be disposed to come to a different conclusion; and I shall, therefore, in the course of the Committee, make a Motion to that effect for the purpose of taking the opinion of your Lordships upon a question of such interest. I know it is said that these cases are of infrequent occurrence. I believe, however, that they are constantly occurring. I believe that compromises frequently occur—that the defendant allows judgment to go by default, on the understanding that the damages are to be refunded to him. It is said that I shall inflict a hardship upon some persons by carrying out my proposition on this subject; but when hardship is spoken of, I beg to recall to your Lordships' minds the petition presented by my noble Friend, whose absence in the north of England I so much deplore—a petition of the most curious kind; but for the accuracy of the statements contained in which my noble Friend vouched. An action for adultery was brought—a verdict was obtained by the plaintiff, and nominal damages were given. The lady was thus doomed to destruction, and was driven out of society. By, however, a most fortunate combination of circumstances—and I now refer to the statement of the petition—after the lapse of eighteen months or two years, the lady thus injured was able to prove to the satisfaction of the Court that there was not the slightest foundation for the charge brought against her. I say it was proved, by a most singular combination of circumstances, that not only she never had sexual intercourse with the alleged adulterer, but that she never had had sexual intercourse even with her husband, and that she was at the moment of trial as pure a maid as at the very earliest period of her life. The point, therefore, upon which I rely is the hardship of suffering a woman to lose her character, and to be driven out of society, without an opportunity being afforded her of maintaining her innocence, or of producing witnesses in her defence. So much then as to that point. The fourth point to which I have to direct your Lordships' attention is one which, in the opinion of the Committee, involves a great hardship. And though with regard to this point the decision of the Committee does not exactly go to the extent which I should wish, still it is a great advance in the direction of reform, and towards protecting the rights and interests of women. I think it is consistent with Scripture, with law, and with reason, that the wife should be put upon the same footing as the husband in cases of adultery. According to the law of Scotland such is the case, and evidence was produced before us to show that no inconvenience resulted therefrom. The Committee, however, could not be persuaded to go to that length, though they advanced in the direction a considerable way. I cited many authorities in support of that opinion, and ultimately the Committee went so far as to decide that in all cases of adultery accompanied by cruelty, in cases of incestuous adultery, and in cases of bigamy, the wife should be entitled to a divorce from her husband. I very much thank the Committee for having gone so far as they have in this matter, although I would fain have persuaded them to go a little further. I could not, for instance, get the Committee to go along with me in extending the right to cases where adultery has been committed, and the husband has been indicted for felony and sentenced to transportation, and to all such cases where, in fact, the objects of marriage have been defeated. I think in all such instances the marriage bond ought to be dissolved. However, though the Committee would not agree with me, I thank them for having gone so far as they have done. Only to one other point do I wish to allude. By the Bill, as it originally stood, a wife is entitled to alimony after four years' desertion by her husband; but the Committee have decided that she should be entitled to alimony after a desertion of a much shorter period. I have thus, my Lords, brought under your consideration the various points, both in the Bill itself and in the Report of the Select Committee, to which it seemed to me desirable your Lordships' attention should be directed before proceeding to discuss the Bill, with the various Amendments proposed in Committee. I regard this Bill as an important step in the right direction, and I trust it will shortly become the law of the land.

Moved—That the House do now resolve itself into a Committee.


Having been one of the members of the Select Committee which sat upon this very important subject, I am desirous thus early in the proceedings to state my own opinion of this Bill, as it now appears before your Lordships, and of some of the suggestions which have been made by the noble and learned Lord who has just sat down. I quite agree with the noble and learned Lord in the desire which he expresses that this Bill should become law; and I wish to offer my testimony of gratitude on behalf of this House and on behalf of the public, both to my noble and learned Friend on the woolsack who introduced this measure, and to the noble and learned Lord opposite who has suggested many valuable additions to the Bill which have been approved and adopted by the Select Committee; because by means of the Bill, in its present form, a very great wrong, affecting society and the interests of women at large, has been effectually, I hope, but at all events to a great extent, redressed. I have for years past thought that in this country, which boasts the most advanced state of civilisation in the world, the legal position of woman has partaken of that situation which it would occupy in the least civilised and most barbarous States. Certainly, she occupies a condition which is inferior to that which prevails in any other modern country, and inferior to that which prevailed in Rome—the great origin and fountain of the civil law. Although we should not think of following the example of the Romans in other points, nevertheless, in this particular respect they exercised a more refined, a more liberal, a more just, and a more enlightened policy than that which your Lordships and the other House of Parliament have for years allowed to prevail in this country. On the subject of the cruelty and injustice of the English law towards women, I would not have your Lordships judge by the cases that come before you here. Many as are the cases of great hardship and injustice which must have come to your Lordships' knowledge in those elevated classes of society with which you are naturally more intimately associated, I believe that they are as nothing compared with that great mass of injustice which has for years existed among the lower and inferior classes of the community. What are we perpetually witnessing? According to the old law upon this subject, a woman deserted by her husband—not for one year merely, but for six, seven, or eight years—having in his absence earned her own livelihood and provided for her children—is liable, at the expiration of a long period, to have her earnings taken from her, her children deprived of their provision, and herself left destitute—all to benefit a cruel, debauched, and profligate husband, and after the exercise of every species of industry and virtue upon her part. I could recite numerous instances of this description to your Lordships. One will suffice by way of illustration. It is the case of the wife of a shoemaker, who was abandoned by her husband; he gave up his trade and deserted her for a period of seven years. On his desertion, she set to work and learned his trade, and practised it during his absence. She thus obtained for herself the means of subsistence, she provided for her children, and her industry and honesty prospered her in her undertaking. At the expiration of seven years, however, the man came home, seized all the profits of her laborious industry, waited upon her customers, and collecting the bills which were due to her, appropriated the proceeds to his own benefit. That is only a single instance; but it may exist everywhere, in every town and in every village throughout the country. In answer to cases such as these we are told by some learned writers, "Oh, that is the common law of the country; but there are remedies to be found in a court of equity." A court of equity! Why, my Lords, to send the wife of a humble shoemaker or of a petty shopkeeper to seek her remedy in a court of equity against an injustice of this description appears to me to be neither more nor less than a mockery—a mockery to which I hope in future no one will ever have occasion to refer. I hope that this important subject will not be allowed to drop without some remedy being applied, and I earnestly trust, above all, that means will be found to put an end to actions for criminal conversation. These actions not only tend to corrupt public morals and to affect public decency, but they lead to the greatest injustice as respects the parties concerned. They bear especially hard upon the woman, whose character and interests are at stake, but whose voice is not heard, and cannot be heard, from the very nature of the proceedings. It appears to me, that in such actions, quoad the ends of justice, all parties stand in a false position. These proceedings are founded upon the monstrous assumption that the loss of the affections of a wife is to be treated as the loss of an ordinary chattel, and is to be compensated in pounds, shillings, and pence, according to the opinion of a jury impannelled for that purpose, but impannelled without an opportunity of forming a right judgment—on the contrary, with every incentive on the part of the prosecutor and the prosecuted to present a false view of the case. The prosecutor may perhaps wish, from a remnant of those feelings that exist in a humane bosom, to mitigate the guilt of her who has been the partner of his life; but more often he is actuated by motives of the most vindictive kind, and aggravates the facts of the case beyond what the interests of justice and truth require. On the other hand, the party prosecuted, if he looks forward to the formation of an honourable connection with the woman whom he has seduced, has every motive for mitigating her guilt; but, if he is so profligate as to wish to avoid making the only reparation which it is in his power to offer, he will not hesitate to save himself at the expense of truth. I have already said that the disgusting details which are dragged to light in the course of such actions act injuriously upon public morals. Your Lordships know how many of these cases have been tried in our own time, and the deplorable consequences to which they have sometimes led. One of the earliest of such cases occurred in the reign of Charles the Second, and that monarch is stated to have attended every day's proceedings, and to have declared that he found it quite as entertaining as a play. I humbly think that an action for criminal conversation is not an edifying subject of amusement either for Sovereign or for people; that, on the contrary, it is utterly corrupting in its nature, and I cannot see why means should not be found of punishing the parties prosecuted in these cases in some other way—for example, by enabling the court to be established under the present Bill to order proceedings to be taken under its own direction against the parties in question. Undoubtedly the Bill, as it now stands, makes a step in the right direction, because I understand it is not intended that the new court should, as heretofore, require an action for criminal conversation to have been raised previously to a suit for divorce; and I think the Committee have gone as far as they ought in drawing a distinction between adultery on the part of the husband and adultery on the part of the wife. Nevertheless, I thank the noble and learned Lord opposite for bringing that particular point before the House. It is one of great importance, and well deserves the attentive consideration of your Lordships. If any further improvements can be made in the Bill I shall be glad; but as it stands at present, though not perfect, it is a great advance upon the existing state of things, and, I believe, will be productive of great good to the country.


said, that as the introducer of the Bill to their Lordships, he wished to say a few words relative to the alterations adopted by the Select Committee. He would advert, in the first instance, to the question on which the Committee were not altogether unanimous—namely, the propriety or impropriety of abolishing actions for criminal conversation. He thought that those actions had hitherto been raised mainly, if not entirely, in consequence of the rule laid down by their Lordships that without a verdict in such an action a divorce could not be granted. Inasmuch, therefore, as the Bill did away with that necessity and enabled a divorce to be obtained upon its own merits, without any such previous action, he believed the consequence would be, from the good feeling of the community, although not from positive enactment, to make such actions extremely rare. He did not say that the Bill would entirely abolish them, and he confessed, differing in that respect from his noble Friend who had just addressed their Lordships, that he did not think it would be expedient to declare by positive enactment that in no circumstances could such an action he brought. For he could conceive cases in which it might be perfectly reasonable that there should be pecuniary compensation. Grievous injury might arise to a poor man from the misconduct of a rich one; there might be many cases in which the guilty act of an adulterer might deprive a poor man of a portion of his income, and whenever that occurred moral justice would seem to require that pecuniary compensation should be given. A majority of the Committee were therefore of opinion that actions for criminal conversation should not be abolished altogether. With regard to the constitution of the tribunal to be established under the Bill, the alteration adopted by the Committee was not a very material one. As the Bill originally stood, it was proposed that the court should consist of the Lord Chancellor, the Lord Chief Justice of the Court of Queen's Bench, and one of the ecclesiastical Judges—the Chief Justice, when he could not attend, to delegate another judge; but the Committee suggested that, instead of this delegation, all the three Chief Justices should have a seat, any one of them being sufficient. As to the rights of a woman divorced á mensâ et thoro with regard to property, he had from the first stated that he had no objection to such a woman being regarded as a femme sole; but he did not think it was a matter which should be introduced into the present Bill. He was still of the same opinion, but nevertheless would not object to the recommendation made by the Committee. Then, with reference to the relief which ought to be given to the wife, the Bill originally provided that she should be entitled to a divorce only in case of incest. The Committee thought, however, that the right should be extended to such cases as bigamy, or adultery with cruelty and desertion. To these alterations he was prepared to accede; but he thought it would not be safe or prudent to go further. Any one who proposed that the relief given to husband and wife should be reciprocal could not expect to have the concurrence of public opinion, for, unquestionably, the public entertained the belief that there was a criminality on the part of the wife in cases of adultery which did not attach to the husband. It was not unreasonable to expect that criminality on the part of the husband might be pardoned by the wife, but it was not at all likely that pardon would be extended from the husband to the wife. The cases could not be regarded as equal, and accordingly he was not disposed to go further in the direction of granting relief to the woman than had been proposed by the Committee.


most earnestly implored their Lordships to take the Bill as it now stood. It was an immense improvement on the law of marriage and divorce in this country, and he thought they could not safely attempt more at the present moment. It was a most anomalous state of things that a marriage could not be dissolved in any particular case in this country without an Act of Parliament, and he rejoiced that, on all hands, the practice of requiring a separate legislative measure in each case had been condemned. It would hardly be credited in future times that such a disgraceful system could have existed, as that before an Act of Parliament could be obtained there must first have been an action brought for criminal conversation. He cautioned their Lordships, however, against giving too great facilities for divorce. Such a course would be attended with the most unhappy consequences. It was only in cases of adultery that divorce could be safely given, and this was the line pointed out by the Divine Founder of our religion. He approved of the alterations introduced into the Bill by the Committee. It was just that the earnings of a wife deserted by her husband should be preserved sacred for her own use; that she should in such cases be treated as a femme sole, and have a right to institute actions even against her husband. In abolishing the necessity of actions for criminal conversation more difficulty arose. Of these actions he had always been ashamed, and on his tribunal he had often expressed his abhorrence of them. In conversation with foreign jurists he had been reproached with the existence of such actions, and had nothing to say in reply; for, though he was able to deny that men sold their wives with ropes about their necks, he could not deny that actions for crim. con. were permitted, nay, made necessary in certain cases, by the law. By rendering that action no longer necessary, he thought a great deal was done, and he hoped the effect would be to bring it altogether into desuetude. The difficulty the Committee felt was, that they could not altogether abolish the action without substituting some mode of criminal proceeding. The question viewed in this light was beset with difficulties, and therefore the Committee, not wishing to abrogate the civil prosecution without substituting a criminal procedure, resolved simply to render the action no longer necessary for the purpose of procuring a divorce. Then the question arose, should the same right of divorce be given to the wife as to the husband? No doubt the crime in both cases was essentially the same; but the consequences were not the same. When adultery was committed by the woman, all the purposes of the marriage were for ever annulled, and there could be no condonation on the part of the husband. He would not, therefore, go the length of giving the woman the same rights in this case as the husband. He would give her the right to a divorce in the case of incestuous adultery, as at present, and to that he was willing to add cruelty, bigamy, and desertion, for a certain number of years; but, further than that, he was not prepared at present to go.


believed there were many cases in the lower class of life in which substantial injury was caused to the injured husband, and, that therefore, actions for criminal conversation ought not to be altogether abolished. At the same time it was desirable that these actions should be rendered as rare as possible, and he believed that after the passing of this Bill they would become exceedingly rare. He suggested that words should be introduced into the clause relating to this point, to the effect that no action for damages should be brought unless the court constituted by the Bill had pronounced a divorce à vinculo matrimonii.


said, he had better at once inform their Lordships, that it was not his intention now to press the Amendments, of which he had given notice; but that early next Session he would bring forward a distinct measure on the subject, containing the qualifications and distinctions it had been his intention now to insert in the Bill. He therefore begged to withdraw his notice of Amendment.


said, that as the only member of the episcopal bench who had sat upon the Committee on this subject, he wished to say a few words. He gave his hearty assent to those improvements of the law which this Bill was intended to carry into effect with regard to the gross injustice now perpetrated upon married women by their husbands in the cases to which the noble Marquess (the Marquess of Lansdowne) had referred. There were other parts of the Bill to which he gave a modified assent. He agreed in the observations that had been made with reference to actions for criminal conversation, and their mischievous effect upon society at large, and he believed that the provisions of the Bill would remedy one of the most disgraceful proceedings that infected our social life. There was, however, one part of the Bill—and that, perhaps, the most important part of it—to which, after mature and deliberate consideration, upon moral and social grounds, he, for one, could not consent. He alluded to the fundamental part of the measure, the object of which was to facilitate, as far as possible, in all cases of adultery upon the part of the wife, and in cases of adultery with certain aggravations on the part of the husband, divorces à vinculo. It had for ages been a moot point among those who had devoted their whole lives to the study of the subject, whether, according to that law of God, to which reference had been made, marriage could be dissolved even for the act of adultery itself. Indeed, throughout a very large part of Christendom that was altogether denied. This question had long been mooted, and the great Christian writer St. Augustine weighed the evidence on both sides with a very nice hand, and at last declined to decide absolutely whether the much-disputed words of our blessed Lord did or did not allow of the dissolution of marriage even for the act of adultery. After giving the best consideration in his power to this subject, he (the Bishop of Oxford) could not doubt that, according to the words of our Lord, marriage might be dissolved for the act of adultery; but, although he was bound to say his honest opinion was that marriage might lawfully be dissolved for the act of adultery, it was a matter for further consideration whether it was expedient that Parliament should afford facilities for the dissolution of marriage even for adultery itself. It appeared to him that the question assumed this form—whether, upon the whole, there was reason to believe that the morality of the nation would be promoted should the Legislature afford such facilities as would be given by this measure for the dissolution of marriage à vinculo even for the act of adultery? The question was not whether, abstractedly, as a point of divinity, it would be lawful to afford such facilities, but whether, as Christian statesmen, they were persuaded that an advance in that direction would or would not promote the moral interests of the community. In his opinion, they ought most seriously to consider whether the cause of morality would be promoted by affording facilities for the dissolution of marriage. If such facilities were to be given with so free a hand that they were to be brought within the reach of the poorer classes, the Courts by which the law was administered must be able to afford what was called a cheap redress to the applicants who came before them. If, however, the poor were referred in cases of this kind to Courts affording cheap redress, such Courts could not be presided over by Judges so capable of discriminating the niceties of law as those who sat in the higher Courts, which were constituted without regard to expense. The consequence, he feared, would be the wide spread of that master evil, collusion, which would by degrees sap the sanctity of married life among the lower classes. But, if the facilities to be afforded were not brought down to the lowest class of society, where were they to stop? Were they to reduce the expense of judicial proceedings to such a point that tradesmen might be enabled to obtain divorces, while the opportunity of doing so would be denied to the lower class of the community? Or, were the expenses to be only so far reduced that divorces would be attainable by the richer portion of that middle classes, while they would be beyond the reach of the less wealthy tradespeople? He believed, that if facilities for divorce were once afforded the gravest dissatisfaction would be produced, unless those facilities were extended to the very lowest classes of society; and he contended that such facilities could not be given to the lowest classes without endangering the moral purity of married life. At present there were no complaints on this subject from the lower classes. They did not demand that the privilegia which, in a few cases, were afforded to the higher and wealthier classes of society should be extended to them. There was no outcry—there were no petitions from the poor on this subject. Why, then, should any one among their Lordships step forward to invite dissatisfaction with a state of the law which, although, doubtless, many cases of individual hardship might have arisen under it, had yet, he believed, preserved the sanctity of married life among the poorer and less instructed part of the community of this country to an extent unequalled in any other nation? He thought that, in spite of all that had been said against it, the present state of things, administered with due caution, was far safer than that which it was proposed to introduce. [A NOBLE LORD: What! by Acts of Parliament?] Yes; divorce by Acts of Parliament. Holding, as he did, that there was nothing contrary to God's law in dissolving marriage on account of adultery, but that facility of dissolution à vinculo matrimonii for that crime produced the worst moral influence upon society, he said that the mode which the English Legislature had hit upon—a general prohibition, with the privilege of dissolution in cases which could not be resisted—although a clumsy, and sometimes a very bad mode, was still a much safer and better mode than the introduction of universal laxity, which would follow from the plan now proposed. There was a consideration which alone ought to induce their Lordships to pause. In all other countries into which relaxation of the marriage tie had been introduced, it commenced, as this Bill proposed to introduce it, by giving facility for dissolution only on the ground of adultery; but never had relaxation stopped there. Other cases of hardship had soon been suggested, until, as their Lordships knew, for incompatibility of temper, and at last for mutual dislike, divorce had in some countries been allowed. The experience of other nations should, therefore, make them cautious before entering upon a track which would inevitably lead to that further step which, he presumed, none of their Lordships were now prepared to take. While, therefore, he approved that portion of the Bill which did away with some of the injustices done to married women, he saw in the proposed facility for divorce à vinculo matrimonii that which he feared would be the opening of the floodgates of licence upon the hitherto blessed purity of English life. Frequent allusions had been made to the law of Scotland; but in one most important point that law differed from what they now proposed to make the law of England, inasmuch as in Scotland there existed this safeguard, that no person who was divorced for adultery could marry the party with whom the adultery had been committed. It was impossible to overrate the influence which such a state of the law exercised in guarding the beginnings of married life. How constantly it had happened that the evil which had resulted in a direful tragedy had its commencement in the lightest cause—some difference of temper, some little alienation of affection, exposing the wife to the arts and approaches of another. But if the woman were guarded by the sure conviction that no more happiness in married life was possible, the temptation might altogether fail. Among the lower classes, who gave no indication of any wish for relaxation of the law, it was perfectly well known that a legal divorce was an impossibility, and to that circumstance might be traced the sacredness of the marriage tie among the lower orders of the English people which was so remarkable—because, even women who had fallen before marriage, and not attributed to that fall any great degree of moral criminality, considered themselves utterly abandoned if after marriage they could be justly charged with any infidelity whatever. That remarkable fact had grown up very much under the influence of the feeling that marriage with any other person was impossible, and the removal of that check would have the effect of unsettling altogether the present estimate which the masses formed of the sacredness of holy matrimony. He believed that by facilitating divorce they would not be imparting to the lower orders advantages hitherto possessed by the higher, but that they would be giving to the lower classes disastrous disadvantages to which the higher classes only had been hitherto exposed. He believed that many unhappy terminations of marriages in high life might have been avoided if it had been as impossible in that class to obtain dissolution of the tie, as it was at present among the poorer people of this land. With that feeling, however few of their Lordships might agree with him, he would move, on bringing up the Report, amendments on the clauses facilitating divorce à vinculo matrimonii. He feared that this measure would affect the whole family and social life of the community, and he therefore trusted it would not be pressed through with haste. He besought their Lordships not to let any considerations of convenience induce them to hurry through a measure compared with which Bills dealing with merchandise and finance were of trifling import, and which, in the estimation of many wise and good men, would inflict a blow upon the sanctity of married life in this country. The Bill, as reported by the Committee, had only that day been laid upon the table. He wished to have his Amendments printed and circulated as well among their Lordships who, at this period of the year, were in the country as amongst those who were in town, and he wished his right rev. Brethren to have an opportunity of considering the whole subject before coming to a deliberate judgment on this great question. He therefore trusted the Report would not be brought up for at least a week.


said, that, notwithstanding the force and extreme ingenuity of the right rev. Prelate's arguments, he was somewhat surprised at their inconsistency. He was glad to hear the right rev. Prelate make the distinct admission that by the Divine law divorce for a given cause was permitted; but the right rev. Prelate went on to argue that it was the duty of their Lordships to render that permission nugatory. The right rev. Prelate had stated that under the existing law, which he wished to see perpetuated, divorce was impossible to the lower classes. He (the Duke of Argyll) maintained, therefore, that by his own confession, the right rev. Prelate wished to neutralise the Divine permission which he admitted had been given to divorces in certain cases. That difficulty had no doubt occurred to the right rev. Prelate, for he sought to meet it by the extraordinary conclusion that the present anomalous state of the law should be continued; that the rich should be allowed to obtain divorces, but that, as to the poor, they should be prohibited. The right rev. Prelate had said that if the privilege of divorce now possessed alone by the rich were extended to the poorer classes, it would be only conferring upon those classes a grievous disadvantage; that notwithstanding divorce was sanctioned by Divine permission, yet the application of that permission would be fraught with dangerous consequences.


explained that he had said, in his judgment, the words of our Lord would bear the interpretation that had been put upon them; but that it was a matter so doubtful that a greater part of the western and the whole of the eastern Church differed upon it, and that St. Augustine had weighed the whole subject most carefully without being able to arrive at a decision.


said that, having been a member of the Committee appointed to inquire into this subject, and having differed from the conclusions at which the majority of that Committee had arrived, he begged to express his concurrence in the observations of the right rev. Prelate. He believed it would be injurious and unwise to grant such divorces as were suggested—indeed, upon a most careful study of the religious aspect of the question, he could not but declare his belief that marriage was indissoluble, and that divorce was not permitted. Even socially, divorce was a subject to be treated with great caution, for he believed that in the great majority of the cases in which Parliament had granted divorce, if the real facts had been known, Parliament would have refused to grant them. With respect to the consequences of divorces, he doubted whether they ever produced happy results, and questioned still more the social benefits which would flow from an extension of the law. Where there were children, the consequences of divorce were most disastrous; and it resulted therefore that it was best, for the happiness of all parties, that divorces should not be allowed. He had been surprised at the noble Duke alluding to the Bill before the House as doing equal justice to the poor as to the rich. The mere expense of a proceeding before a tribunal comprising the three Chief Justices and the Lord Chancellor would prevent a poor man from having recourse to it. If, then, the law of divorce was to be made more accessible to the poor, its administration must be intrusted to inferior courts, which, being burdened with numerous cases, could not be expected to exercise that caution, or to examine so minutely as was desirable and proper. He had expressed his views in a separate report, and further consideration had confirmed him in the conclusion which he had therein stated. He quite agreed with the right rev. Prelate that further time should be given to consider the Bill, and hoped the noble and learned Lord on the woolsack would agree to that proposal.


said, that, as a matter of fact, he could assure the right rev. Prelate that he had heard many persons in the humbler orders of life complain bitterly of the injustice of the present law of divorce as regarded them. It was quite true there had not been a public meeting of men whose wives had been unfaithful to them, and therefore no petition had been presented from that unfortunate class. He had tried many men for bigamy who complained that they had not been able to get rid of a bad wife, and had married again as the only course that was open to them. In a case tried before Mr. Justice Maule, the prisoner, being convicted of bigamy, was called upon to say why sentence should not be passed upon him. He then said, "My wife was unfaithful; she robbed me and ran away with another man, and I thought I might take another wife." The reply of the learned Judge was—"You are quite wrong in supposing that. You ought to have brought an action for criminal conversation; that action would have been tried before one of Her Majesty's Judges at the assizes; you would probably have recovered damages; and then you should have instituted a suit in the Ecclesiastical Court for a divorce à mensâ et thoro. Having got that divorce, you should have petitioned the House of Lords for a divorce à vinculo, and should have appeared by counsel at the bar of their Lordships' House. Then, if the Bill passed it would have gone down to the House of Commons; the same evidence would possibly be repeated there; and if the Royal assent had been given after that, you might have married again. The whole proceeding would not have cost you more than £1,000." "Ah, my Lord," replied the man, "I never was worth a 1,000 pence in all my life." The Judge's answer was, "That is the law, and you must submit to it." Who could wonder that the man should return, "That is hard measure to us who are poor people, and cannot resort to the remedy which the law has afforded to the rich."


thanked his right rev. Friend for having brought before their Lordships certain aspects of this question which otherwise would not, he believed, have been presented to their consideration on this occasion. He had failed to perceive in the speech of his right rev. Friend any of that inconsistency which the noble Duke (the Duke of Argyll) had endeavoured to point out, and he had heard nothing which met the substance of his right rev. Friend's arguments. The anecdote just related by the noble and learned Lord, entertaining as it was, was perfectly inapplicable by way of argument. Precisely the same objection would always be raised on the part of those classes whose case it was perfectly evident would not be touched by the present Bill. Whether the Bill was right or wrong, he thought it absolutely impossible, if it were carried, that legislation could stop there. When this relief was carried (if relief it were), a very active spirit of dissatisfaction would be sure to be engendered among those classes within whose reach were not brought those facilities which the Legislature would then have distinctly pronounced to be a benefit and a right as regarded the higher classes of society. Their Lordships would then be compelled to adopt some further measure to accomplish the same ends and to increase these facilities, and he really saw no limit to their legislation upon this subject until they brought the law of divorce within the jurisdiction of the County Courts, or of some other court in which justice (if justice it were) should be made still cheaper and easy of access to the very lowest classes of society. That was a prospect which he, for one, could certainly not regard with satisfaction, comfort, or confidence, and he should therefore be very glad to have an opportunity of maturely considering the provisions and effect of the measure now proposed.


thought it a very plausible argument to say that the Legislature gave to the rich facilities in obtaining divorce which they did not afford to the poor; but he agreed with the right rev. Prelate (the Bishop of Oxford) in thinking that if the means of dissolving the marriage tie were made more generally accessible, an extent of immorality and collusion, which it was fearful to contemplate, would be developed among the lower classes of society. He hoped the most ample time would be given for further deliberation on this fearfully awful question. The question was one of a most serious and awful character, affecting most deeply the moral condition and social happiness of the community. He believed that its effect would be to increase fearfully the amount of immorality in the country.


alluded to a recent instance of misfortune arising from the present state of the law, and believed that if time were given many petitions would be presented in favour of the Bill.

Motion agreed to; House in Committee accordingly; and Amendments made.

On Question that the Amendments be now reported,

THE BISHOP OF OXFORD moved that the Report of the said Amendments be received on Thursday next.


thought this request not unreasonable.


observed, that the opposition of the right rev. Prelate was to the principle, and ought to be taken on the third reading.


said, it was irregular to postpone the Report on a Bill the principle of which was adopted, and moved an Amendment to leave out ("Thursday") and insert ("Tuesday.")


said, he and his right rev. Friends were obliged by their duty to their dioceses to make engagements a long time beforehand—engagements they could not break—and many of his right rev. Friends were unable to be present.


supported the postponement.

On Question that the word proposed to be left out stand part of the Motion, their Lordships divided:—Content 9; Not Content 7: Majority 2.

Resolved in the Affirmative; and the Report of the said Amendments to be received on Thursday next.

House adjourned till To-morrow.