§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR, in moving the second reading, said that he had not much to add to the statement which he had made two years ago when a very similar Bill was under consideration, to which their Lordships gave a second reading, but which, owing to the advanced period of the Session, was not at that time prosecuted. The evil which the Bill was intended to rectify was one which had long been felt, both by those who looked at the matter theoretically as well as by those who viewed it in a more practical light, to require a remedy. As their Lordships were aware, a divorce, properly so called, such as would reinvest the parties with the privileges of single persons and enable them to marry again, was entirely unknown to the law of England. When, unfortunately, differences occurred between a husband and wife—in a case of infidelity on either side—the aggrieved party might apply to the ecclesiastical courts, and obtain a divorce à mensâ et thoro, which enabled the parties to live separate, and in some respects relieved them from the obligations of marriage. But it did no more; it did not make either of them in the nature of single persons so as to enable them to contract a new marriage. The cases in which divorces à mensâ et thoro were granted were not merely cases of adultery. Gross cruelty was likewise thought sufficient to render further cohabitation impossible. There were also other cases—where, for example, persons, from physical causes were incapable of contracting marriage, or where marriages were contracted within the prohibited degrees of consanguinity or affinity—in which the ecclesiastical courts, upon application, granted what is sometimes called, though inaccurately, a divorce à vinculo matrimonii. It was clear that, in such cases the divorce was nothing more than a declaration that no valid marriage had in reality taken place. That being the state of the law upon this subject as it at present stood, it had for more 402 than a century and a half been felt as a great grievance that when a separation had taken place after marriage—for adultery, for instance, or for some other competent cause, the aggrieved party should not be able to marry again; and, to remedy that evil, recourse had been had to what he must say was a clumsy expedient—to give it no worse name—namely, a reference to that House on the part of the injured party, asking their Lordships to grant a private Act of Parliament to supersede the general law of the country and enable the party to contract another marriage. It was a matter rather of antiquarian curiosity than of any practical value to trace the progress of the law on this subject; but it might be expedient to indicate what had been the various changes in the course of legislation in the matter of divorce, in order to lay a foundation for the Bill which he was now asking their Lordships to sanction. In remote times there was no possibility, in any circumstances, of dissolving a marriage which had once been duly contracted, marriage in the Roman Catholic Church being considered a sacrament and indissoluble. But it was a matter of historical notoriety that the Court of Rome, partly in order to enrich its coffers, and partly to please those by whom applications were made to it, was in the habit of enabling divorces really to take place by declaring marriages which had in fact taken place to have been unlawful and void ab initio, by conjuring up a vast variety of conditions precedent, beside those of impotence, or relationship within the forbidden degrees, by which the marriage contract was said to be rendered null ab initio. One of these conditions was the existence of a previous contract. Again, the forbidden degrees with us included the relations of brother and sister, uncle and aunt, and some few others; but the Court of Rome went much further, and held marriages null which had been contracted between eighth or ninth cousins. There was one case mentioned by Lord Coke, in which a marriage was declared null by the Court of Rome, because one of the parties had been godfather to the sister or cousin of the other. Such were the expedients resorted to in order to get rid of the pressure arising from the strictness of the Roman Catholic law which prohibited divorces altogether. The Reformation swept away all that class of laws and expedients, and then came the 403 question as to the footing on which divorce was for the future to be placed. In the latter part of the reign of Henry VIII., and again in the reign of Edward VI., a commission was issued to very learned persons—Archbishop Cranmer being at the head of them—to inquire into all the subjects connected with the new ecclesiastical state, including those of marriage and divorce. The opinion of the Commissioners was embodied in a report written in very elegant Latin, but which never became law, and which was now only valuable as showing the views entertained by those learned persons. Shortly after that period, their Lordships' House interfered in the matter for the first time. He referred to the case of the Marquess of Northampton; which, however, was not regarded as a precedent, because at the end of the reign of Elizabeth, or in the beginning of the reign of James I., it was universally admitted that a divorce, in the sense of a total separation, so as to enable the parties to marry again—a divorce à, vinculo matrimonii—was entirely unknown to the law of England. Towards the close of the seventeenth century two or three Cases occurred in which, for the first time, the House of Lords was called upon to sanction those private laws—privilegia, as they were called,—which put parties in the same position as if they had never been married. The new system had now so far taken root that in the first eighty years after the establishment of that system, according to the last report of the Commissioners, to whom he should presently advert, private Bills granting divorces were obtained at the rate of about one per annum. That, he supposed, was the time when, at the suggestion of Lord Loughborough, the House agreed to standing orders, that no Bill granting a divorce à vinculo matrimonii should be passed, except at the instance of a person who had previously obtained a divorce à mensâ et thoro in the Ecclesiastical Courts, and had brought an action at law and recovered a verdict against the adulterer, or could explain why such action had not been brought. When that course had been taken their Lordships had, almost as a matter of course, upon the party proving his case at the bar, passed a Bill granting him a divorce, unless it should appear that the misconduct of the wife had been caused or fostered by the treatment she had received from the husband. The Bill after passing their Lord- 404 ships went to the House of Commons, where it was treated in every respect like a Private Bill; and thus the aggrieved party obtained by a private Act of Parliament that redress which the general law of the country did not give. Now that was a state of things unsatisfactory both to those who unfortunately were obliged to have recourse to such proceedings and to those who looked at the law and legislation of the country in a scientific point of view; and accordingly in 1850 a Commission was issued under the great seal to a number of very eminent persons, both lawyers and civilians, including his noble and learned Friend the Lord Chief Justice, the late Lord Beaumont, Dr. Lushington, Mr. Walpole, and Sir William Page Wood, to inquire into the nature of the remedy for a system which had been so universally complained of. The Commissioners made their inquiry and made their Report, and it was on the recommendations made in that Report that the provisions of the Bill now introduced were chiefly founded. What he proposed to effect by the operation of the Bill was this—instead of making it necessary for a husband who complained of the infidelity of his wife to come to their Lordships' bar, to raise an action at law, and to take proceedings in an Ecclesiastical Court, he proposed at once to constitute a court competent to deal with the whole matter. Actions of crim, con. as they were called—always actions of a revolting nature, and very much to be deprecated—would thus be rendered unnecessary. He did not, however, propose to abolish such actions altogether, as persons who had sustained a grievance might wish to have recourse to them; but such actions were not to be necessary as a preliminary to getting relief by divorce. He thought it was also very absurd to require a person to go to another tribunal in order to get half way towards procuring a divorce, and, therefore, the necessity of repairing to an Ecclesiastical Court would be abolished. The great difficulty in establishing the new court lay in constituting an efficient tribunal. On the one hand, there would not be anything like business to occupy the whole time of a court constituted for the purpose of granting divorces; and, on the other hand, in making a selection of Judges, it was requisite to obtain the services of the best legal functionaries. In framing the constitution of the new court, the Bill followed as nearly as pos- 405 sible the recommendations of the Commissioners. The Commissioners recommended that the court should consist of a Vice Chancellor, a puisne common law Judge, and an ecclesiastical Judge. Now, instead of the Vice Chancellor, he proposed the Lord Chancellor. He did not say that the Lord Chancellor was necessarily a better judge than the Vice Chancellor, but he thought that in making a transition from the Legislature itself to a court of justice it was important to give all the dignity they could to the new tribunal that was to be constituted. Then, instead of a puisne Judge, he proposed that the Lord Chief Justice should be one of the judges, and instead of an ecclesiastical judge the Judge of the Court of Probate. Such was the tribunal he proposed to constitute; and the next point was how they were to deal with the matters intrusted to them. He proposed that, in making inquiry whether or not a wife complained of by her husband had or had not committed adultery, they should proceed to obtain evidence, not by depositions, but vivâ voce, and that they should be empowered to send, if they though fit, certain issues to be tried by a jury, as was at present done under the practice of the Court of Chancery. The Commissioners recommended, and he thought wisely, that, inasmuch as these questions of divorce would not only apply to divorce à vinculo matrimonii, but to divorce à mensâ et thoro, the court should be required to deal with all matters relating to disputes between husband and wife, involving questions less serious than a divorce à vinculo matrimonii. This he thought a valuable recommendation, and therefore he had adopted it; but he did not think that in dealing with these questions the presence of the Lord Chancellor or the Lord Chief Justice would be necessary. He therefore proposed that the judge of the Court of Probate should be entitled to deal alone with these cases, calling his colleagues to his assistance whenever points of gravity and importance should arise for decision. That being the course of proceeding in the court itself, he proposed next that there should be an appeal, not as now, from the Ecclesiastical Court to the Privy Council, but to the bar of the House of Lords, just as in other cases of appeal from inferior courts; but that if no appeal were taken within three calendar months then the decision of the Court should be final. There was one point connected with the subject on which 406 great difference of opinion prevailed—and that was whether a suit for a divorce was one to which a court ought to listen on the application of the wife, or one which could be instituted only at the suggestion of the husband. He was ready to admit that on he first blush it did appear very unjust that relief should be given to the husband complaining, while the same relief was not given to the wife, but he concurred with the recommendation of the Commissioners, that on that point they should adhere to the law as it now was. In theory it was very well to say that a wife ought to have the same relief as the husband, but practically the feelings and habits of mankind would be found to go along with the views of the Commissioners. There had been published an able pamphlet on this subject, in which it was suggested that an expression had dropped from him (the Lord Chancellor) to the effect that a husband would only have to be a "little profligate" in order to get quit of his wife. By such an expression—if indeed he ever used it—he was understood to speak lightly of misconduct on the part of a husband in such cases. He could only say that he must have expressed himself very unfortunately on the subject, for certainly he never intended to put such a construction on the misconduct of a husband. It was the common feeling of mankind that, if a husband repented and treated his wife with kindness, the sin on the part of the husband was not necessarily an unpardonable offence. There were cases in which a wife might and ought to condone, but the common feeling of mankind told them that this must be on the part of the wife only. There was, he thought, much wisdom in the language used upon this subject when it was said that when parties felt that they must continue husband and wife, that feeling induced them to become good husbands and good wives. He did not propose, therefore, to enable this court to grant divorce at the instance of the wife merely on the ground of the husband's infidelity. Of course cases might arise in which it would be right that relief should be given to a wife; but for that purpose he put her in no worse position than she was in now. There had only been four instances within the last century and a half in which their Lordships had granted this relief at the instance of the wife. In two of these cases it was impossible, both legally and morally, that the wife could condone; they 407 were cases in which adultery was committed with the sister of the wife, and it was impossible by the ecclesiastical law to allow cohabitation after such an offence. Another of these cases was that of Miss Turner; but it was hardly a case of divorce, being rather a special Act of Parliament declaring the nullity of the marriage. The only case in which he thought relief might properly be given to the wife was where the adultery of the husband was incestuous, and where, therefore, condonation by the wife, and subsequent cohabitation, would be impossible. He thought in the case of incest it was extremely reasonable that the wife should have that relief which was granted to the husband in ordinary cases. He had now given their Lordships an outline of the object and the details of this measure. His noble and learned Friend (Lord Lyndhurst) had given notice of his intention to move that the Bill should be referred to a Select Committee, which should also inquire generally into the subject of the law of divorce. He (the Lord Chancellor) would be most reluctant to oppose any wish entertained by his noble and learned Friend with regard to a measure which it must be their common object to render as perfect as possible; but he must remind the noble and learned Lord that a few years ago the subject of divorce was referred to a Commission, which examined witnesses, inquired into the matter thoroughly, and presented a very elaborate report. He (the Lord Chancellor) could not see, therefore, that any advantage would result from referring the subject to a Select Committee. It appeared to him that the only questions to be considered were questions of principle, such as whether the wife should be allowed to have the same relief in all cases as the husband, or whether any further relief should be granted by private Acts of Parliament. He could only say that if there were any defects in the Bill he would be most anxious to amend them. He had been asked the other day by a noble Earl near him to what extent Ireland would be affected by this Bill. At present all cases of divorce à vinculo matrimonii, whether arising from adultery committed in Ireland or elsewhere, were disposed of at their Lordships' bar. He had certainly thought, in the first instance, that it was desirable that cases of this kind should be dealt with by one tribunal; but, as he understood a strong feeling existed in the sister country in favour of the establishment 408 there of a similar court to that which he proposed to constitute in England, to determine upon cases of adultery committed in Ireland, he was ready, if it should be their Lordships' wish, to assent to the establishment of such a tribunal. Such a measure would certainly be attended with one advantage, by diminishing the expenses now entailed upon parties to a suit for divorce when the adultery occurred in Ireland. He was therefore willing to introduce a clause into this Bill for establishing in Ireland such a court as he wished to establish in England, or if it were thought more desirable, he would introduce a separate Bill applicable to Ireland. He thought the cumbrous, inconvenient, and, he must say, discreditable system which had been pursued for a century and a half of sanctioning divorces by private Acts of Parliament, ought to be abandoned, and he hoped therefore their Lordships would consent to give a second reading to this Bill.
§ Moved, That the Bill be now read 2a.
§ LORD LYNDHURSTMy Lords, I have deemed it my duty to consider with much attention the Bill of my noble and learned Friend; and, notwithstanding the respect I entertain for him, I must say that I think the measure is most insufficient, and ought not in its present shape to pass into a law. Its operation would be most unjust as between husband and wife, and, so far from rendering the situation of a woman better, it would in some most material respects render her situation much worse than it is at the present moment. I think, considering the interesting nature of the subject, and the extent to which it affects the welfare of society, that, notwithstanding the inquiries which have already taken place, the whole matter ought to be referred to a Select Committee. I entertain that opinion the more strongly, in consequence of the statement which I understand was made by a Minister of the Crown, a gentleman of great learning and commanding talents. Some time after, a former Bill relating to this question was withdrawn, its defects became the subject of discussion in a place which is publicly and pretty well known; and the learned individual to whom I refer, expressed a sincere and earnest hope, that when another Bill of a similar description was brought in, due care and attention would be paid to it, and that an endeavour would be made to put an end to the system of harship and cruelty as regards the 409 woman which had hitherto existed. With that concurrence of opinion, I venture to suggest to your Lordships that this Bill, and the whole question of the law and practice of divorce, important as it is, ought to be referred to a Select Committee. There are many questions of great importance connected with this Bill, and with the relations between husband and wife. The matters with regard to which the female sex have a right to complain may, I think, be ranged under four heads—first, with respect to property; next, with regard to personal protection; thirdly, with regard to actions for criminal conversation; fourthly, as to divorce. I beg that your Lordships will not be alarmed at this enumeration. It will not require many observations to explain these different points. First, then, with respect to property. I do not refer to the questions of property as between man and wife when they are living together in harmonious connection, but to the relation of property when they are separated from each other, in consequence of the misconduct of the husband, by sentence of the Ecclesiastical Court. What is at present the law upon this subject? Why, if a woman is separated from her husband by a sentence of the Ecclesiastical Court, and a legacy is left to her, or if she succeeds to personal property in consequence of intestacy or in any other way, such property belongs to her husband. He can receive it, and generally does so, and he may appropriate it altogether independently of his wife. This matter is closely connected with the law of divorce, but it is not touched by the present Bill. Ought it not to be inquired into and set right? Again, if the wife succeeds to real property by devise or by inheritance, to whom does that property belong? The husband occupies it during the lifetime of his wife, and may take the income from it notwithstanding a separation in consequence of his misconduct. But, much worse than this, if the wife tries to eke out a scanty subsistence for herself and her children by the exercise of any art in which she is proficient, or by instruction, the husband can seize upon the proceeds of her industry and bestow them upon his mistress. I ask your Lordships whether, in legislating upon the law of divorce, you ought not to adopt some provisions with reference to this subject. These are the claims which the husband has upon the property of his wife. Let us look at the other side, and mark the position in which 410 every wife is placed. With the exception of a scanty allowance in the shape of alimony, whatever personal property belongs to the husband he may appropriate as he thinks proper; he may assign it, or bequeath it by will, and leave his wife and children destitute. There is no reciprocity or inequality in such a case. It is said, however, and with some justice, that settlements executed previously to marriage may restrain the husband in the exercise of these rights; but the system of settlement does not extend to the great mass of the people. Nine tenths of the marriages in this country take place without any settlements, and are governed, as to rights of property, by the common law. I now come to another view of the question. A wife is separated from her husband by a decree of the Ecclesiastical Court, the reason for that decree being the husband's misconduct—his cruelty, it may be, or his adultery. From that moment the wife is almost in a state of outlawry. She may not enter into a contract, or, if she do, she has no means of enforcing it. The law, so far from protecting, oppresses her. She is homeless, helpless, hopeless, and almost wholly destitute of civil rights. She is liable to all manner of injustice, whether by plot or by violence. She may be wronged in all possible ways, and her character may be mercilessly defamed; yet she has no redress. She is at the mercy of her enemies. Is that fair? Is that honest? Can it be vindicated upon any principle of justice, of mercy, or of common humanity? Another branch of this question that demands particular attention, is the prosecution for alleged criminal conversation. The husband brings an action against a supposed paramour, to recover damages as a solatium for what is described as his "loss of honour." Is the practice that at present governs such proceedings to continue? Mark the injustice of it. As far as the plaintiff and defendant are concerned, it is a matter of mere money with them, and therefore an affair of comparatively trivial importance. But is it so with the wife? Oh, far otherwise. With her it is a matter of life and death. If the plaintiff's action succeeds, all is lost with her. She is driven from society, she has no refuge, no one will receive her. In actions of that description she is not so much as heard. She dares not lift her voice. She is not permitted to appear in the case, or to give evidence. She has everything at stake, 411 yet the law treats her as if she had nothing. This is a subject which deserves attention, and assuredly some more equitable system ought to be substituted for so disgraceful a course of proceeding. It has been sometimes thought that a criminal proceeding might be substituted, and we all know that a Bill with that object was introduced into your Lordships' House some forty years ago, and received the zealous support of some of the best and most illustrious members of your order. It was brought into the Commons by the Master of the Rolls, and was supported by Pitt, Windham, Wilberforce, and some of the most learned and eminent men in that branch of the Legislature; but unhappily the Bill was thrown out. The cause of its defeat I have never been able to ascertain. Most assuredly it was not that the current of argument or the weight of character as regards its friends and opponents was against it. I now come to the question of divorce. The law in that respect is usually administered by the ecclesiastical courts. It is of two kinds—the divorce à vinculo matrimonii and that à mensâ et thoro. And here observe how different is the principle on which these two descriptions of divorce are administered. The divorce à mensâ et thoro is granted for cruelty and for adultery; but adultery is a sufficient cause, whether committed by the wife or the husband. Here the parties are on an equal footing, and there is no difference between them. But in the case of the divorce à vinculo, the ecclesiastical courts proceed upon a different principle. Those tribunals do not annul marriages except for causes which were in existence previously to the solemnisation of such marriages; as, for instance, consanguinity, or an incapacity to perform the duties and fulfil the objects of marriage. It is only under such circumstances that the ecclesiastical courts pronounce a judgment of divorce à vinculo matrimonii. They take no cognisance of what has occurred since marriage, nor have they any power to divorce for adultery. Since the Reformation marriages have not been dissoluble on the ground of adultery by any proceedings except by the action of the Legislature, and now cannot be dissolved by any other machinery than that of an Act of Parliament. It is needless to enumerate all the arguments that may be advanced against such a mode of proceeding. It is attended by manifold inconveniences, and it is open to the charge 412 of flagrant injustice. One fatal objection to it is its enormous expense, which limits its application to one class of society. To that class alone does it bring relief. In ordinary cases a Bill of divorce costs from £700 to £800; and instances are of no unfrequent occurrence where the expense amounts to several thousands, and where the proceedings are protracted for a long series of years. Several attempts to effect a change in the law have been made, but without effect. The noble and learned Lord on the woolsack proposes a new tribunal; but, before we consent to its establishment, it is essential to understand on what principles it is to be governed, and on what system it is to accomplish the object it has in view. In the first place, the new tribunal ought not to be open to the upper classes only. It should be accessible to persons of moderate incomes, and it should be so constituted and administered as to do equal justice to the parties who appeal to its jurisdiction. Will the system proposed by the noble and learned Lord fulfil these conditions? I scarcely think it. In the first place, there will be an investigation before a tribunal composed of three learned Judges, who will examine and inquire; but after that there will be for either party a right to appeal to your Lordships' House. Thus, under the new state of things, as under the old, the question will eventually come before your Lordships. It will be competent for you to confirm or reject the decision already pronounced, or you may direct the court below to examine additional witnesses or to re-examine the former witnesses on other circumstances; or you may order certain issues to be tried by the Judges on their respective circuits. And all this complicated machinery is contrived and put in motion with the view of cheapening the cost of divorce, and making the tribunal accessible not only to the rich, but to persons of moderate means. I am much mistaken if, so far from having any such effect, it will not occasion in many cases more expense than is incurred under the law as it at present stands. And then as to the equality of justice—what is the principle of this Bill? It is, that a married woman shall have no remedy against her husband for adultery, unless in cases of incest. However atrocious the conduct of the husband may be—though it may be so infamous that it may be a horror to the wife to be connected with such a man, yet the only ground on which the wife is to have a claim to a 413 divorce is in the case of incest on the part of the husband. But that offence is so exceedingly rare, that the position of the wife will be practically no better than it is at present. It is said, indeed, that as regards adultery there is an ingredient in the case of the wife which does not exist in that of the husband, inasmuch as the wife's adultery may introduce spurious offspring into a family. Allowing this to be true, will it be denied that there may be circumstances in the conduct of the husband such as may render it not only advisable, but necessary, that the right of divorce should be granted to the wife? What will be said of the case of the husband who not only treats a virtuous and innocent wife with cruelty, but lives in open adultery and takes his mistress home with him? Under such circumstances, ought not the wife to be relieved from the marriage obligation? My noble and learned Friend's doctrine is, that the situation of the husband in this case is not very much changed. He simply lives with a mistress instead of a wife; he suffers little in the opinion of the world, nor is his station in society affected; he is merely considered "a little profligate." That is the picture which my noble and learned Friend draws of the wrong-doer—of the man who has driven his wife from her home by his infamous conduct; but what is the situation of the suffering woman? To live in a blank state of desolation—all her prospects blasted—driven from her home, perhaps separated from her children, with no object on which to fix her affections, exposed to the designs of profligate men, and scarcely able by any care or caution to avoid calumny and slander—living on the brink of destruction. Such is the gloomy fate which awaits the injured wife. Is it to be borne that there shall be no relief for her except in the solitary case of incest? Imagine the case of a woman (and we have had examples of this) whose husband has attempted her life by poison that he may more freely give way to some unlawful passion—is she to have no relief? This Bill actually places a woman in a worse position than she is at present. Now she may apply to this House for a divorce, she may state her case, and narrate all the injuries to which she has been subjected, and your Lordships have a discretion to decide in her favour. My noble and learned Friend's authority is very high, but 414 let us hear what Lord Thurlow says on this subject:—
The House passed Bills of divorce in a variety of circumstances. In all such cases their Lordships governed their judgment by the circumstances of each particular case. Indeed he knew not how they could do otherwise. Because with respect to divorce he knew no rule to direct their conduct or to limit the wisdom and discretion of the House. What was the objection to granting the petitioner, a much injured wife, the divorce which she prayed for?Then he stated the case of the wife of Lord Audley. Would their Lordships have refused the prayer of the petitioner in such a case? I know, it may be said, that the case to which Lord Thurlow was referring was a case of incest; but he does not confine himself to incest, for he extends his remarks expressly to Lady Audley's case, which, horrible as it was, was not a case of incest. My noble and learned Friend's Bill, however, would refuse a divorce in that case, infamous, base, and scandalous as it was. The moment we pass this Bill, and say that divorce shall only be granted in particular cases, you cannot go out of those cases. Your Lordships will have no discretion—a divorce can only be granted under the circumstances laid down in this Bill. It is true there is an appeal to your Lordships; but in dealing with these appeals your Lordships will be bound by the law of the court below. There is a clause in the Report to which my noble and learned Friend has referred of a most extraordinary character. It is to the effect that there is nothing to prevent a woman from applying to your Lordships for a particular Act of Parliament to dissolve her marriage, even if you pass a law to enable the husband to prosecute divorce upon other terms—that is, you are, according to the recommendation of the Commissioners, to alter the law in a manner which shall enable the husband to prosecute a divorce on easy terms, and to leave the law just as it is, with all its hardships, on the wife separated from her husband, with probably no means, and therefore no possibility of redress. It is said, that the breach of morality is not so great in the husband as it is in the wife—that is, that infidelity in the one does not introduce so much immorality into society as it does in the case of the other, and the Commissioners quote the authority of the great moralist, Dr. Johnson, for this. Unfortunately the Commissioners do not quote the whole of the passage in, which, 415 the dictum to which they refer is contained. I will supply the omission in order that your Lordships may judge how far you are justified in taking the great moralist as your master and guide upon subjects of this description. This is the whole passage—Between a man and his wife a husband's infidelity is nothing. Wise married women do not trouble themselves about the infidelity of their husbands. The difference between the two cases is boundless. The man imposes no bastards on his wife. A man, to be sure, is criminal in the sight of God, but he does not do his wife any very material injury if he does not insult her; if, for instance, he steals privately to her chambermaid: Sir, a wife ought not greatly to resent this.I will read to your Lordships the observations made on this passage by another moralist of late days—The manner in which the earlier years of his life had been passed had given to his demeanour, and even to his moral character, some peculiarities appalling to the civilised beings who were the companions of his old age.That is the commentary of Macaulay on Dr. Johnson's matrimonial doctrine. It is said that if equal facilities of divorce were given to women the courts would very soon he choked up with their applications. But I know woman's character better than that. I know that in none but in extreme cases would she resort to this remedy. I could enlarge upon this topic, but my ideas are so well expressed in the language of an eloquent writer that I will quote it to your Lordships—A man who has lapsed in his observance of the marriage vow may nevertheless be a kindly husband and father, with whom reconcilement would be a safe and blessed generosity. If we add to these admissions woman's natural lingering love for her companion; love undeniable, indisputable; love evidenced each day, even among the poor creatures who come bruised and bleeding before the police courts, refusing to give evidence, in a calmer hour, against the man such evidence would condemn to punishment; if we add the love of children, the dread of breaking the bond which shall perhaps help a stepmother into the mother's vacated place; if we add the obvious interest, in almost every instance, which the woman has to remain in her home, and the horror most women must feel at the idea of the public exposure and discussion of such wrongs;—it is evident they would not be so very eager to avail themselves, in usual cases, of the extreme remedy. But in unusual cases—in cases of the dreary, stormy, deserted life—where profligacy, personal violence, insult, and oppression, fill up the measure of that wrong which pardon cannot reach—why is there to be no rescue for the woman?I am quite satisfied that the more your Lordships look into the matter the more 416 you will be satisfied that a married woman would not, except in extreme cases, avail herself of this remedy. But, in principle, there ought to be no distinction made between the adultery of the husband and that of the wife. But it is said that all the ecclesiastical authorities are against the opinion I profess. So far from that being the case, the Commissioners mentioned in their Report the celebrated judgment of Bishop Cozens in the case of the Duke of Norfolk, and I will read a short passage from it on this subject:—The bond of marriage is a conjugal promise made between a man and his wife, that each of them will live together, according to God's holy ordinance, notwithstanding poverty or infirmity, or such other things as may happen during their lives. But the promise does not extend to tolerating adultery, which, according to God's ordinance dissolves the marriage. By adultery the very essence of the contract is directly violated; but the contract ceasing, the bond or obligation depending upon it (that is, the nuptial tie) ceases also. It is against all reason that all matrimonial duties should be for ever taken away, yet the bond or obligation to those duties should continue.If your Lordships read the whole of the judgment to which I have referred they will find it supports with great weight this doctrine. But I have authority much higher than any individual ecclesiastic; I allude to the work De Reformatione Rerum Ecclesiasticarum, on which so much praise is bestowed, and so much reliance placed in the Report of the Commissioners. Your Lordships are aware of the history of that work. In the reign of Edward VI, a Commission was appointed, composed of thirty-two persons; sixteen being ecclesiastics of high rank, and sixteen laymen, also of high stations, Members of this and the other House of Parliament. The object of the Commission was the reformation of the whole ecclesiastical law. That Commission drew up articles, which were framed by Cranmer, and relating, among other matters, to marriage. And what is it that that Commission said on the subject? It said that adultery is a ground of divorce, whether committed by man or woman. If, then, authority is wanted in respect to this matter, here you have the authority of the early Reformers, whose attention was directed to the point:—the authority, not of ecclesiastics alone, but also of laymen of high station. This conclusion is consistent with our ecclesiastic law, because by it the 417 adultery of the husband is put on the same footing as the adultery of the wife; and though the Ecclesiastical Courts have the power to divorce only à mensâ et thoro, still the same principle applies in cases of divorce à vinculo matrimonii. What greatly strikes the minds of people is, that all law should he equal. If you go north there is perfect equality between man and woman with respect to the law of divorce; in the same way as it is laid down in our ecclesiastical law. There adultery on the part of the wife or husband dissolves marriage à vinculo. How monstrous is it, then, that the law on a subject of so much importance; coming home, as it were, to every one's fireside, should be so different in different parts of the United Kingdom. Ought not your Lordships to inquire and endeavour to ascertain whether there is any foundation for this distinction? A Committee of this House sat some time ago respecting the state of the law of marriage, and Scotch witnesses were examined; I know that many noble Lords in this House, who can, from their own knowledge, answer at once this question—Is there more licentiousness in Scotland than in England in reference to the intercourse of the sexes? I believe quite the reverse; and yet such licentiousness was apprehended formerly if you gave women the right of applying for divorce against husbands. The then Lord Advocate M'Neili, now Lord Justice General, was examined, and gave the following evidence:—Is there a double proceeding with you as with us—that is to say, a sentence of separation from bed and board, as well as a sentence which dissolves the marriage?—Yes.Are both proceedings competent to the wife as well as to the husband?—Yes.Is there any difference whatever between the right of the husband and the right of the wife to prosecute those kind of proceedings?—Each has the right in law.Has any inconvenience been found to result from giving the wife an equal remedy with the husband in obtaining a divorce à vinculo?—I am not aware of any inconvenience.And Mr. Maconochie expressed a similar opinion, thus, namely—Do you think that any practical inconveniences arise from giving the wife a remedy against the husband of the same kind as he has against the wife?—I think not.Do you consider that there are about as many cases of wives divorcing their husbands as of husbands divorcing their wives, or fewer?—I think very considerably fewer.Is it your opinion that marriage ought to be dissolved on account of the adultery of the hus- 418 band in every case?—I should certainly say so, generally speaking, from my own experience in Scotland. The same remedy that is given to the husband, I think, ought to be afforded to the wife.Is that the general opinion of Scotch lawyers?—I should say so, decidedly.Such is the evidence of the witnesses on the effects of the law of Scotland, showing that no inconveniences resulted from it. I think I have heard it stated that Lord Eldon entertained an opinion on this point in accordance with the provisions of the present Bill. Such may have been his opinion at an early period of his life; but as the full result of his experience he came to a different conclusion, for in Mrs. Moffatt's case, where the application for divorce was made by Mrs. Moffatt on the ground of cruelty and adultery, he made this declaration:—The novelty of the present application arises from its being an application on the part of the wife against the husband, but I have yet to learn that a woman has not as good a right to relief as a man, under the circumstances that give rise to Bills of this description; and, as I see no reason why a woman is not as much entitled as a man to sue for a divorce, I shall move that the Bill be read a second time.The noble and learned Lord who was then upon the woolsack, and who now sits below me (Lord Brougham), felt himself bound in that case by the practice of the House; but he has since altered his opinion on the subject, and I have a passage here, stating, in strong and eloquent terms, what was the opinion of my noble and learned Friend some time after that case occurred. I am spared the necessity of troubling your Lordships with that extract, because my noble and learned Friend is now present, and he can state to your Lordships what his opinions are. I trust that I have now satisfied the House that, so far from the weight of authority being in favour of this Bill, it is the other way, and I leave it to your Lordships to say whether I have not proved such a case as to induce you—to compel you almost—in justice to grant this Committee, I therefore conclude by moving an Amendment in the terms of my notice.
§ Amendment moved, to leave out from ("That") to the end of the Motion, and insert ("the Bill and the Law and Practice of Divorce be referred to a Select Committee, with Directions to Enquire whether any and what Alterations it will be proper and just to make in the said Bill; and to report thereon to the House.")
419LORD BROUGHAMseconded the Amendment. Anything more convincing, more luminous, or (which is saying everything) more worthy of his noble and learned Friend than the statement which he had just addressed to their Lordships he had not only never heard, but could not even imagine. That the Bill followed substantially the tenour of the Report of a most respectable body of Commissioners he did not deny; but as he differed from the Report of the Commissioners he differed from the Bill, being decidedly of opinion that the question ought to be dealt with in a larger sense and on a wider basis. He thought that as to the question of divorce there were only two courses which it would be consistent, or even rational or intelligent for them to adopt; one was considerably to enlarge the remedy proposed by the Bill, and the other was to put an end to all divorces, even by legislation. The practice of refusing, almost as a matter of course, a remedy to one party and granting it to the other, almost as a matter of course, appeared to be so utterly repugnant to every principle of common sense, of justice, and common humanity, that he did not see the possibility of maintaining it, and his noble and learned Friend was fully justified in taking the stand he had upon the present occasion. His noble and learned Friend bad justly remarked that the establishment of the proposed court would rather make matters worse for the wife than they now were, because the court would have no discretionary power. The Bill provided that a wife should have no remedy against her husband except in cases of incestuous adultery; but he begged to remind the House that cases of polygamy sometimes occurred. Two such cases had come before him. In one, the husband had been tried at the Old Bailey, convicted, and sentenced to transportation for having intermarried with another woman, his wife being alive. That was held to be a ground for divorce, and the prayer of the wife was granted. In the other case, there had been no conviction, but the parties separated at the church door; there was no consummation of the marriage, and the husband, being disappointed as to fortune he had expected with his wife, took himself off and married another woman at Brussels. Those circumstances, according to the rule of their Lordships' House, would be no ground for granting a divorce; but having been proved in evidence their Lordships 420 violated their rule of refusing all remedy to the wife, and granted the prayer of the petition. He remembered another case of the grossest cruelty to the wife, and the most grievous misconduct and profligacy of the most loathsome description on the part of the husband. Great resistance was made to the claim for a divorce, and it was very nearly being refused at once, on the ground of the general rule; but it seemed so monstrous that all remedy should be refused in such a case that it was agreed, if the facts turned out to be as they had been opened by counsel, and if no case of recrimination were proved, that the rule should be extended and a divorce be granted. Unhappily, although the abominable conduct of the husband was made out beyond all question, yet great doubt remained with regard to the conduct of the wife, which had been set up by the husband as a defence against the divorce; and the result was that the divorce was not granted. His noble and learned Friend (Lord Lyndhurst) had cited a case which occurred when he (Lord Brougham) was on the woolsack. He (Lord Brougham) felt. in common with the late Lord Wynford, the great hardship of that case, and he had never denied that it was most grievous that there should exist such a rule to confine and control their practice; but at the same time he felt that he was bound to abide by that practice, and that except in extreme cases the suit of the wife for divorce ought not to be permitted. That was not so bad a case as many others which had been referred to, but it showed the hardship of the hitherto inflexible rule. No doubt the noble and learned Lord on the woolsack might say that there had already been an inquiry into the subject, not only by a Commission, but formerly by a Committee; but he (Lord Brougham) begged their Lordships to observe how clearly that raised an additional argument in favour of the Amendment. He found that the then Lord Advocate—now Lord President of the Court of Session—when examined before the Committee, stated that in Scotland, where the same facilities for obtaining a divorce were afforded to the wife as to the husband, there were many more divorces applied for by the husband than by the wife. The Lord Advocate was mistaken in that particular, for the returns to which he referred in his evidence, and which related to the whole of Scotland, showed that for the four years ending in 1840, the average number of divorces granted à vinculo was 421 twenty and a fraction in the year, while in 1841 the number was only ten. That was very material, for it proved how very groundless the apprehension was that, if the Scotch law were introduced into England, and if both parties, as according to every principle of justice and common humanity they ought to be, were placed upon the same footing, there would be an endless number of divorces, because the expense would be much less than in coming by Bill to Parliament, and because the wife as well as the husband would have a chance of redress. It was an error of the Lord Advocate to state that there was in Scotland a much greater proportion of divorces applied for by the husband than by the wife; for the names of the cases in the returns showed that the proportion was about nine of the wife and ten of the husband, being very nearly equal. That a further inquiry was loudly called for could not be questioned, both on account of the discrepancy between the statement of fact, and on account of the lapse of time since those returns. Another defect in the Bill before their Lordships, and also in the recommendations of the Commissioners, was, that the remedy was confined to the husband, and refused to the wife, except in the case of incest, leaving out entirely the great head of desertion, which in many instances was even worse than cruelty. The law of Scotland gave the same remedy to the wife for the desertion of her husband as the husband would have for what was not so likely to happen—desertion of the wife. He would not trouble their Lordships with many cases; but in his capacity of President of the Law Amendment Society, which recently summoned a general meeting to consider the wrongs of married women, he was overwhelmed with evidence of the grievances practically sustained by that class under the law as it at present stood. He would mention only one to their Lordships on the subject of desertion. An unhappy lady, who had been married several years, was deserted by her husband, who chose to go in other company to a distant colony, where he had resided for the last six years. By the English law she could not show her face, either in the Court of Doctors' Commons, which indeed could give her only a separation à mensâ et thoro, or in the Court about to be established under the present Bill for a larger remedy. She might, indeed, as the Lord Chancellor had stated, apply in the circumstances of 422 the case to their Lordships' House; but she would have to pay £500 or £600 for the expense of proceeding with a Bill, while every rule which guided their proceedings would prevent her having the shadow of a shade of a chance of getting the Bill passed into a law. The husband had gone to a country where gold was thought to be easily collected. If he succeeded in his speculation and came back with a fortune, not one halfpenny would go to the wife; but if he failed, and, becoming tired of the society in which he was at present living, returned and found that his wife had honestly and nobly exerted herself for her own support by the exercise of her industry and talents, he had the right, as the law now stood—disgracefully to our jurisprudence—to sweep away all the earnings of the unhappy woman whom he had so basely deserted. It would not only be superfluous but impertinent, after the statement of his noble and learned Friend, to dwell longer upon those gross cases of the injustice, cruelty, and inhumanity practised upon married women under the present law; but he must say that unless something be done to change it—unless some redress be afforded—we must be content to continue held up to the rest of mankind as pretending to be a civilized country, while in reality living under a system more barbarous and more inconsistent with itself than existed in any other part of the world. There were other grievances; thus it was impossible not to condemn the system by which a woman's reputation might in her absence be for ever sacrificed in a court of law. He could cite a case in which in an action for crim. con. the defendant's family compounded with the plaintiff by paying him £50, and a verdict was taken in the absence of the wife, by which she was Condemned unheard. Further proceedings, however, took place in the Ecclesiastical Court, where it was shown, not only that the adultery had not happened, but that it was impossible it could have happened, as there never had been consummation either by the husband or any other man. In the meanwhile the poor woman had lain under the imputation for eighteen months. This might be an extreme case, but it was not an extreme case to suppose that the peace and reputation of women might be destroyed in those actions where they were neither heard nor represented. One case he wished to point out, which, though applicable 423 to the law of marriage, and not to that of divorce, was nevertheless worthy of their Lordships' consideration and showed how much the law required amendment. Suppose an English duke of the age of fourteen went to Scotland and fell into the hands of a prostitute, aged perhaps twenty-four, who wheedled him into love-making and then into a marriage according to the Scotch law, simply by acknowledging before witnesses that she was his wife—all the estates and honours of that unhappy young duke would be affected by that marriage, without the possibility of a remedy. But that was not of course touched by the present Bill, which was confined to divorce. He believed that it would leave the case of the wife worse than it was under the present law, because the new Court could not exercise discretion as their Lordships' House now did; and therefore he agreed with his noble and learned Friend, that before the Bill made further progress it should, with the whole question, be sent to a Select Committee.
§ LORD REDESDALEobserved, that it had been truly stated by the Lord Chancellor, that, at present, the divorce à vinculo was not known to the law of England, and could only be obtained by a special Act of Parliament; it was, therefore, confined practically to the higher class in society. It should be remembered, that ever since the first introduction of Christianity into England the remedy of a divorce à vinculo had been unrecognised by our law. The change which it was now proposed to make was, therefore, a very momentous one. Although the privilege of obtaining such a divorce by a special Act of Parliament was necessarily confined to the rich, and therefore only the very few could avail themselves of it, the people in general had never made any demand to have the same privilege extended to them, and he could not, therefore, conceive that there was any need for this Bill. It had been thought, by some of the highest authorities, that the happiness of the married state was secured by its indissolubility; and that if facilities of dissolving it were given, that happiness would be impaired; and, that, if the principle of divorce à vinculo were introduced as a thing to be granted by the ordinary law, the sanctity of marriage would be less regarded, as it had happened in some continental countries. In that opinion he agreed. The alteration in the habits and morals of the people at first might not 424 be felt, but it would insensibly extend to the most serious consequences. This question had engaged much interest in Parliament, because its Members knew that the privilege of divorce was practically granted to the class to which they belonged; and they felt that it ought to be equally open to all. But if they looked at the manner in which the divorce à vinculo was granted, they would see that it was nothing but a job in favour of the higher classes. The first time a great Peer had attempted to get such a special Act in his own favour it was opposed, and only passed by a narrow majority, and then, Parliament having once admitted the precedent, other cases followed. But there had never, to the present time, been any popular demand for a general law on the subject; and it was only in order to support the consistency of that and the other House of Parliament, and because Parliament had actually been accustomed to perpetrate these jobbing special Acts in the cases of particular individuals, that it was now proposed to make so momentous a change, and to introduce into the law of this country a principle hitherto quite unknown to it. Such a matter was not to be so hastily dealt with. The utmost that could be gathered from the Bible was a separation for adultery, and it did not sanction a divorce à vinculo. He thought, however, the remedy of the divorce à mensa et thoro ought to be more easily obtained than it now was, not only for adultery, but for different other injuries. It was a very expensive proceeding at present, and out of the reach of the larger part of the community. The same tribunal, however, should not be competent to grant the divorce à vinculo matrimonii; therefore this question was quite distinct from that. There ought to be facilities provided of obtaining a separation, with protection, and of obtaining a remedy for some of those wrongs to which married women were subject; but the larger question of the divorce à vinculo was one which needed further inquiry.
§ THE EARL OF ABERDEENsaid, the only objection he felt to referring the Bill to a Select Committee was, that such a course might involve the danger of continuing that unreasonable and unjust system which had so long existed, for the delay attending an inquiry by a Committee might prevent a remedy from being applied within any reasonable time. He rose, however, mainly for the purpose of saying that, as he had on many occasions 425 stood forward as an humble advocate of the law of Scotland, it had been most satisfactory to him to find that so much justice had been done by noble and learned Lords opposite to the law of divorce as practised in Scotland. He believed that the Scotch law, in that respect, was founded upon wisdom and justice, and he thought it might induce his noble and learned Friends to look with a little more complacency upon the law of marriage in Scotland. His noble and learned Friend opposite had imagined an absurd case, and supposed that a young Duke might be entrapped into a marriage by an artful and designing woman. He (the Earl of Aberdeen) did not deny that such a case was possible; but, he would ask, how many young Dukes had entrapped innocent young women in comparison with the number of young Dukes entrapped by the artful persons to whom the noble and learned Lord referred? He thought nothing more just could be conceived than that a promise of marriage, followed by cohabitation, ought to constitute a valid marriage, and that was the case in Scotland. He believed, generally speaking, that women were infinitely more virtuous than men. He believed, that for one woman who had entrapped a thoughtless young man into marriage hundreds of innocent women bad been entrapped by artful and designing men. He, therefore, thought that the possibility of such an absurd case as his noble and learned Friend had suggested was no argument at all against the justice of the marriage law of Scotland.
THE LORD CHANCELLORsaid, he should not object to the Bill being referred to a Select Committee; indeed he could not resist it. But he would not admit that it was his duty, in introducing a measure for the amendment of the law of divorce, to undertake a perfect amendment of the code of laws concerning the relations of husbands and wives. Undoubtedly there might be cases which required amendment, and if his noble and learned Friends would introduce or suggest such improvements they should have his respectful attention; but it was a subject so interwoven with every part of our law, that any attempt to alter it would be beset with difficulties. What he proposed was to meet an admitted grievance by this Bill; and all the arguments used which did not relate to divorce were beyond the object to which his attention was at present directed. There was 426 one argument now used which did relate to that object. It had been said that the wife ought to have the same right as the husband, and that under this Bill she would have no remedy. That was a mistake; she would have the same remedy which she now possessed. She would not have the extended remedy which this Bill proposed to give to the husband, but she would have the right of applying for a divorce aà mensa et thoro, just as she had now; and the husband would have the right of coming to the new court, instead of coming to their Lordships' bar.
§ LORD LYNDHURSTBut how unjust that is!
THE LORD CHANCELLORsaid, he could not quite understand what it was that his noble and learned Friend proposed. He could understand a proposal that the law should be as it was in Scotland, where a wife, as well as a husband, might obtain a divorce for adultery, though he saw great difficulties in that. But the eloquent speech of his noble and learned Friend had not been confined to that, but contained strong pictures of the wife suffering ill-treatment of other kinds from the husband, being deserted by him or beaten by him. Now, he should expect his noble and learned Friend, in the Committee, to tell him what the cases were to which he would propose to apply this remedy of divorce; because he (the Lord Chancellor) must say fairly that he was not prepared with anything of the sort. It was easy to point out such grave cases, which were incident to human nature and to the relations between man and woman, and to show the great oppression which they involved, but it was not so easy to propose a remedy. He (the Lord Chancellor) could not anticipate much good from the Select Committee, but he would not resist its appointment, after the second reading of the Bill. It was due to the House, however, that he should state that he had no measures to propose for the extension of the remedy of divorce to anything except adultery, and adultery committed by the wife—a remedy given to the husband by the practice of the last century and a half; at the same time he should be very ready to hear the reasons on the other side of the question.
§ Amendment, by leave of the House, withdrawn. Then the original Motion was agreed to. Bill read 2a; and the Bill and the Law and Practice of Divorce referred 427 to a Select Committee, with directions to inquire whether any and what alterations it will be proper and just to make in the said Bill; and to report thereon to the House.
§ House adjourned to Thursday next.