§ Order of the Day for the Second Reading read.
THE LORD CHANCELLOR
My Lords, I rise to ask your Lordships to agree to the Second Reading of the Divorce and Matrimonial Causes Bill. My Lords, with two variations the present measure is substantially the same as that which passed the House the last Session of Parliament. Your Lordships will recollect that about ten years ago a Royal Commission was issued, directed to my noble and learned Friend the present Lord Chief Justice, Dr. Lushington, Mr. Walpole, my noble Friend near me, Lord Redesdale and Sir William Page Wood, with a view to ascertain whether any suggestions could be made that would enable the Legislature to get rid of the anomaly of those private Acts of Parliament which for the last century and a half have been passed in cases of adultery, where the parties aggrieved asked for relief at your Lordships' bar. The matter was inquired into by the Commissioners, and an elaborate Report was made, recommending that the passing of private Acts of Parliament for the purpose of granting a divorce à vinculo matrimonii should be abolished, and that there should be established a court for the trial of such matters, and that, when the case was proved with the circumstances now essential for obtaining a divorce Bill before your Lordships' House, this court should have the power of pronouncing a divorce à vinculo matrimonii. In pursuance of that recommendation I introduced 1686 a Bill to your Lordships last Session, which, after passing the second reading, was referred by your Lordships to a Select Committee, in which Committee we had the assistance of more than one right rev. Prelate, and also of a great number of your Lordships who took a deep interest in the subject. I believe all the law Lords were Members of the Committee, though in truth the question was no more one for lawyers than for laymen, having reference to an important alteration in the social habits of the people, and not strictly coming under the head of law reform. In that Committee a suggestion was made by my noble and learned Friend (Lord Lyndhurst) for the purpose of extending the provisions of the Bill, so as to give relief to married persons who had not been separated by divorce à vinculo matrimonii, but were separated by a divorce à mensa et thoro, and to enable persons so separated to have the rights and duties of a single person; and accordingly clauses were introduced at my noble and learned Friend's suggestion, enabling a married woman so separated by the Ecclesiastical Court, but not by a divorce à vinculo matrimonii, to have all the rights and privileges of a single person, so as to prevent the husband from coming afterwards and taking possession of any property which she might subsequently have accumulated. These clauses were very much discussed, but they were eventually adopted by the Committee, and subsequently by the House. By the Bill then introduced, it was provided that a court should be constituted, consisting of the Lord Chancellor, the Chief Justices of the Courts of Queen's Bench and Common Pleas, the Chief Baron of the Exchequer, and an ecclesiastical functionary, to be called the Judge Ordinary, being, according to the present Bill, Dean of the Arches. It is proposed that in the ordinary purposes of an ecclesiastical court as regards matrimonial matters, the Judge Ordinary shall have the power of dealing with them without the concurrence of the other Judges; but that for the purpose of granting divorces à vinculo matrimonii, in order to enable the parties to marry again, three Judges shall be necessary—one of the three being the Judge Ordinary. The proceedings to be adopted are to consist of the examination of the witnesses viva voce, and the Court is to have power to direct issues when necessary to be tried by a jury of the country. The Dean of the Arches is to have all the power ho now possesses, and 1687 the whole Court is to have the power of dissolving the marriage in order to entitle the parties to it to consider themselves as single persons, and to marry again. That is exactly an outline of the Bill then, and it is, with the trifling exceptions which I am now about to state, substantially the same measure as that which came before your Lordships last Session. When the Bill was last before your Lordships, after it had left the Committee, the Bishop of Oxford moved the insertion of a proviso, which was carried by your Lordships, that in case of a divorce being pronounced à vinculo matrimonii, that although the parties should be at liberty to marry again, an exception should be made in the case of the adulterer, and that the adulterer should not be permitted to marry the adultress. Your Lordships carried that provision almost unanimously, and although I thought at the time that it was very objectionable, I did not find much encouragement in the opinion, and the Bill consequently passed in that form. But, my Lords, as I am responsible for introducing the change in the law in what I think the best mode, I have thought it necessary to omit that provision, leaving it to your Lordships to re-insert it if I do not convince you that it is most objectionable. I may state shortly that I consider it a most objectionable proviso, because it involves a most cruel punishment upon the woman, and I am afraid that in nine cases out of ten it will be a great boon to the adulterer. I believe that in ordinary cases a man who has committed adultery, which has resulted in a divorce, would feel himself bound in honour to make all the reparation he can by marrying the woman whom he has excluded from society; and I am afraid that the consciousness that he cannot be compelled to do this will have a tendency to render him by no means less inclined to commit adultery, while, on the other hand, this clause would relieve him from the great embarrassment of a kind of retributive justice by the law actually preventing him from making the reparation; and therefore I am of opinion that the Bill is much better without this clause. But there is another reason why its introduction is most inexpedient. Your Lordships are aware that in private Acts of Parliament to dissolve marriages, it has always been your Lordships' practice to introduce such a proviso, knowing that as a matter of course it was invariably struck out of the Bill in the other House. What reason have you to suppose that a different course would be 1688 adopted in regard to a general Bill to that which has been universally the course adopted in private divorce Bills? That is the great reason why I did not attempt to introduce this proviso. I do not see the use of attempting to introduce a clause which is sure not to meet approval, and most certainly it would, if its introduction were made a condition of the passing of the measure, imperil it. There is another alteration which I will for a moment advert to, although I am aware that when I intimated that it was my intention to make it, a fortnight ago, I met with but little encouragement—I mean the introduction of a clause by which deeds of separation are legalized by positive enactment. It is too late to speculate whether it is desirable for married persons to separate, and as far as they can to remove the restraints and obligations of marriage. Separation deeds have been prevalent for at least more than half a century, and though doubts have existed and questions have been raised in the courts of law and equity as to their validity, ultimately it has come to be established that they are perfectly valid, and the instruments are such as are recognized in courts of justice. Only a few years ago, Lord Cottenham was Lord Chancellor, and so entirely was that principle acted upon, that he supported an injunction restraining one of the parties to such a deed from taking any proceedings in the matter in the Ecclesiastical Court contrary to an engagemennt he had entered into. I am aware that such a principle would not be acted on in the case of simple deeds, in which the parties declare that they intend to separate. As a matter of form they are executed through the instrumentality of friends and trustees. But if a husband and wife agree that either from harsh conduct or other causes they will separate, will it be suggested that there would be any difficulty in finding persons to act as trustees? I do not think a doubt can seriously be entertained upon that point. It is essentially an agreement between husband and wife, and some party on behalf of the wife, covenanting that she should not molest her husband, and vice versa that he should not molest her; the husband is protected against debts incurred by the wife, and there are also other stipulations which experience has shown to be necessary in framing such a deed. What I propose is that without all this complicated machinery it shall he lawful for married persons to make such a deed of separation, which, on being registered in the proper court of registry, 1689 the Ecclesiastical Court should give all the effect which courts of law now give to separative deeds. Whether your Lordships will adopt this view or not I cannot say, but I must observe that I think it would be better to have a law to confirm these deeds of separation, and if yon cannot make people conform to the law to make the law conform to usage; for where a practice is shown to be necessary the law ought to be made to confirm it, because where it cannot be done per directum it will be done per obliquum. Courts of law and equity have recognized the binding validity of these deeds, and that being so I cannot see the objection to get rid of all complication about them. These are the only two alterations of importance which I have introduced into the Bill which passed your Lordships' House last Session, and, having stated shortly what those alterations are, I shall content myself by moving your Lordships to give a second reading to the Bill.
§ Moved, That the Bill be now read 2a.
§ LORD LYNDHURST
My Lords, when this Bill was before the Select Committee of your Lordships' House last year, I thought it right fully to express my views and opinions upon it, and under those circumstances I should not have thought it necessary on the present occasion to have troubled your Lordships with any observations upon it had it not been for the circumstance, that in consequence of the part which I took in the progress of the Bill, which was lost from being sent down too late to the House of Commons last Session, I have received so many communications from persons for whose opinions I entertain great respect—so many communications of objections to the Bill, as violating the principles of morality and religion, that I think I ought not to give altogether a silent vote. I am very much surprised, I must say, at what I consider this change of opinion—for I am persuaded it is a change of opinion—since the Bill passed this House in the last Session of Parliament. I am at a loss to account for this, except by attributing it to what fell from a right rev. Prelate (the Bishop of Oxford) upon the last occasion of this subject being discussed. That right rev. Prelate dealt with the question with all the eloquence and ability which he brings to bear upon every matter; but at the same time he stated a circumstance which I am afraid has had considerable effect out of doors, if not in this House, upon persons whose attention has been directed to this subject. 1690 The right rev. Prelate stated that one of the most eminent fathers of the Church, St. Augustine, to whom this question was referred, said that after considering the question during the greater part of his life and upon repeated occasions, had been unable to make up his mind as to the propriety of allowing divorces. In consequence of that statement I have felt it my duty to look into the voluminous writings of St. Augustine, and I confess that although I have been struck with the singular subtlety and the extraordinary talent displayed by that high authority in drawing nice distinctions, yet it appears to me that that distinguished divine was more skilful in creating difficulties than in discovering methods of removing them. In his comments upon the passage in St. Matthew in the Sermon on the Mount, in which our Saviour alludes to the subject of adultery, he says great discussions have arisen in the Church as to the meaning of that passage—whether it is to be taken in the enlarged sense in which it is sometimes necessary to interpret Scripture passages, as meaning any unlawful desires or worldly views, or in the more limited sense of the words themselves. But, although he gives no express opinion on the subject, he leaves it in such a way as to make me believe that he has come to a conclusion which would be directly in support of the present measure. As the passage to which I have referred contains only two or three lines I will take the liberty of reading it to your Lordships. St. Augustine, after indicating the words of the passage, and referring to the different interpretations which had been given to those words, says:—"But that it is lawful for a man to dismiss a wife for that which in stupris committitur—that is, adultery—does not admit of doubt." Such, my Lords, is the authority on this point given by the distinguished divine to whom I have referred, and he repeats this opinion over and over again. In one case he says—"This is the sole exception which at all arises." When he speaks of a husband dismissing a wife he gives it to be understood that the same rule applies to the husband, since not only has a woman no power over her person but the husband, but also the husband has no power over his person but the wife. As an illustration of what I stated with respect to the opinion of this learned divine I will refer your Lordships to a short anecdote which he cites commenting on those words:—A man was thrown into prison in Antioch for not 1691 paying his taxes, and was threatened with death unless those taxes were paid by a certain time. This circumstance became known throughout the city, and a certain wealthy man proposed to the prisoner's wife (who happened to be an exceedingly handsome woman) that if she would pass one night with him he would pay the amount for her husband. The woman hesitated for some time, and then consulted her husband, who advised her to accept the offer. She performed her part of the contract, and the wealthy man performed in a certain manner his part of the contract. And the question put to the learned divine is whether this was adultery or not. After referring to the passage which I have quoted, namely, that the husband has no power over his person but the wife, and the wife has no power over her person but the husband, he says the question is whether, as the husband gave a licence to the wife for this purpose, it was adultery or not. After giving a great deal of consideration to the question this learned divine said that he would give no opinion, but he would leave everybody to form their own judgment upon it, which shows his caution. I may as well say that the wealthy man referred to behaved in the most scandalous manner; for, instead of giving the man's wife the money, he gave her a quantity of securities on land, and had it not been for the interposition of the government the money would never have been forthcoming. My lords, this learned divine turns his attention afterwards to the question of marrying again, and he says—"Adultery is a good ground for divorce according to the passage which I have read;" but he says also—"I have great doubt whether the parties should be allowed to marry again." Now, it is to that, I suppose, that my right rev. Friend alluded, when he said that eminent divines, after considering the question, had come to no certain conclusion. Certainly, on looking through his voluminous writings, I do not find that he came to any decisive conclusion. So much for the authority of St. Augustine. But supposing he was entitled to more authority than he really appears to have a right to claim, the authorities on the other side are quite overwhelming. I do not pretend for a moment to have consulted these authorities themselves; but in the case of Lord Rosse, 150 years ago, the Bishop of Durham made a statement to the House, now to be found in print, and he says that divorces under certain circumstances are supported by numerous 1692 Councils; he cites the opinion of the most eminent fathers of the Church—among the most learned Catholics he instances Erasmus; and among the most eminent Protestants, Grotius, Selden, and others, and the whole of the Church Commission, clergy and laity, appointed in the reign of Edward VI. upon the canon law. On the other side, in support of the doctrines of the Roman Catholic Church, there was little to rely on of great authority, if we except the Council of Trent; and everybody knows that the Council of Trent was called for the purpose of increasing the power of the Church of Rome, and for the purpose of supporting the Roman Catholic religion. It is obvious, therefore, that it has never been regarded as possessing any authority in our Church. If the right rev. Prelate opposite (the Bishop of Oxford) is disposed to take part in this discussion, I would remind him that divorce Bills have passed in this House for at least 150 years, and there are only one or two instances in which any opposition has been made by right rev. Prelates on that bench. The whole authority, therefore, I am persuaded, is in favour of the principle upon which the Bill is founded, and I think that no just and effective opposition can be made to it. But there is another class of objections which have been raised, and noble and learned Lords tell us that they think it better to adhere to our present practice and continue the present exceptional course. I should like to hear them argue the case on that point. I think the argument would be all in support of the Bill. Granting divorces have been in practice for 150 years, it is part of the law of the land, for having been sanctioned by both Houses of Parliament, it is quite equivalent to the law. It is certain that any person introducing a Bill into this House complaining of adultery on the part of the wife, and showing that on his part he had conducted himself with the most perfect propriety, would obtain his Bill. It may be said, if that is the effect of the present practice, why should any change be made? The answer is obvious. It is an unjust practice, limited in its operation, and confined only to the wealthy. No person of moderate income can sustain the expense of a divorce Bill. What can be more unjust, then, or more improper, to continue such a practice? My Lords, persons possessed of great wealth and large estates, enjoying comforts of every description, have sources of consolation against injuries of this description; but persons in a more humble 1693 station of life must rest their hopes of happiness on their domestic establishments and domestic comforts. How hard, therefore, it is for them if, when their domestic hearth was violated, this privilege was confined only to the wealthy, and they were excluded. Again, it may be said, "What are you going to do with the poorer classes?" The answer I make to that is this: "It does not follow that because my noble and learned Friend proposes to establish a tribunal consisting of persons of high stations, that therefore the expense of proceeding in such a court should be necessarily great, and I have no doubt that such a tribunal would make regulations to enable all classes to have recourse to it. I have heard it stated that the proposed change in the law will be productive of immorality among the humbler classes. But upon that point I have come to a contrary conclusion. What will follow if all hope of legal redress is refused in this case to that portion of the people? Why, the want of such redress will naturally lead to acts of brutal violence. What, I would ask, can be more fatal to the cause of public morality than that a continuance in a course of adultery should afford no ground to the injured party for a dissolution of the marriage tie? I find that in Scotland adultery on the part of the husband gives the wife a right to a divorce, just as the adultery of the woman gives the man a similar right; and the remedy extends alike to the lower as to the higher classes; and yet I believe that the state of the law has had no demoralising effect in that country. Why, then, should we assume that a similar provision would be prejudicial to morality in this portion of the United Kingdom? In my opinion there is no reason why the law of Scotland upon this subject should not be extended to England; and I do not think that one arrangement ought to prevail upon such a point in the north, and a different one in the south of the island. When the former Bill was before a Committee I took occasion to say that, as in Scotland the law was equally applicable to the husband and wife, I thought there was no reason why a similar rule should not be adopted in this country. I am fortified in that view by the state of the ecclesiastical law, which places the adulterous husband and the adulterous wife upon precisely the same footing. I was desirous of adopting that rule in our law of divorce; but the Committee of your Lordships' House which inquired into the question was averse to 1694 my proposal. I pressed it on the Committee as strongly as I could, but I pressed it without success; and I do not feel that there is now any chance of my securing to it the assent of your Lordships. I have, therefore, abandoned it for the present. But there is another alteration which I am most anxious to see introduced into this Bill. I think there are four cases in which a divorce from a husband is allowed, and I wish there should be a fifth. I think that when a husband breaks his marriage vow, and, after abandoning his wife for a certain number of years, goes to a distant country with the view of deserting her, a divorce à vinculo ought to be granted to a wife so deserted. In pressing that point on your Lordships' notice, I would ask you to reflect for a moment on the objects of marriage. Look at the marriage ceremony of our Church. Three objects are there stated; first, the procreation of children and their nurture in the fear of God; secondly, the prevention of sin; and, thirdly, the love, comfort, and protection, in sickness and in health, between the husband and the wife. What is the vow taken by the husband in the ceremony of marriage? Nothing can be more stringent. He vows he will love, comfort, keep, and protect his wife, in sickness and in health, and, forsaking all other women, keep only to her until death do them part. That was the obligation which he voluntarily contracted; it was as strong an obligation as any into which it would be possible for him to enter, and it was one which must exercise the most powerful influence over any man possessing the least degree of feeling. When he disregards that obligation, when he defeats all the objects for which marriage had been instituted—when he passes into a distant country with a view to cut off all communication between him and his wife, is it right or just that she should still be bound to him by our marriage law? Can we say, under such circumstances, that the wife should be tied to a man who has so cruelly deserted her and her children? Is there any justice in such a system? Since this matter was last brought under the consideration of your Lordships' House I have received several communications from women placed in this unfortunate situation, and I cannot describe to your Lordships how strongly their recitals of the wretchedness of their condition were calculated to wring the heart. The first thing to which a woman looks in early life is a matrimonial union, on which she may build all her prospects of future happiness. 1695 She afterwards selects an object for her affection; with that confidence and fidelity which women only can entertain she gives, up to him her property, her person, and all her expectations of welfare in this life. Before long, however, she wakes from this dream, and finds herself abandoned and deserted by the object of her love; she sees nothing before her but a dreary existence without anything on which she can repose her affections; her life is a life—Where no hope comes that comes to all.Possessed, on the other hand, of a warm heart, a generous spirit, and a confiding temper, she meets with some cowardly seducer, sinks into sin, and ends her life in misery and wretchedness. I most earnestly implore your Lordships to consider this state of the law. We are here not to protect our own sex alone, but we are still more called on to protect those who have no means of protecting themselves. Why, I repeat, should the law in this respect be so different between the two parts of the United Kingdom? Why should Scotland be just and generous to women in this respect, and England be cold, unfeeling, barbarous? Let me remind you that the great mass of the enlightened divines of the Church of England, and many laymen of distinguished talent and position, laid down the doctrine in the reigns of Henry VIII. and Edward VI. that the rights of divorce should be granted to a wife who had been abandoned by her husband. I make these observations, my Lords, in the present stage of this Bill in order to give your Lordships an opportunity of reflecting on the justice of this claim; and the more you reflect upon it I am sure you will be the more disposed to grant the necessary relief. There is a novelty in the Bill to which I desire to call your Lordships' attention. It enables parties to do that by a short course which they can now do by an expensive and circuitous proceeding. I doubt very much whether it is desirable to adopt such a course. My Lords, let me remind you when my noble and learned Friend is introducing a clause into this Bill for the purpose of facilitating the voluntary separation of husband and wife that that is contrary to the law of England. Lord Hardwicke, I may state, expressed his opinion in the strongest terms against the legality of voluntary separations; but I shall not go so far back as that. I must, however, refer your Lordships to the opinions of other eminent judges upon the subject. Lord Stowell 1696 laid down the rule which prevailed in his time in Doctors' Commons on the subject in these words—This Court considers a private separation as an illegal contract, implying a dereliction of stipulated duties, which the parties are not at liberty to desert.;and, after enlarging on this point, he concludes by saying that the ecclesiastical courtsto which the law has appropriated the right of adjudicating upon the matrimonial contract, have uniformly rejected such covenants as insignificant in a plea of bar.Again, Lord Eldon said he considered deeds of separation contrary to the policy of the law. If, then, it has not been held by the ecclesiastical courts or by the Court of Chancery to be wise and prudent to encourage such private separations, and if they have been regarded as contrary to the policy of the law, why should we now adopt a measure for the purpose of facilitating the practice? I must explain that in cases where parties have separated, and the Court of Chancery is called upon to intervene with respect to agreements founded on the articles of separation, all the learned Judges of the Court have protested against interfering, and have considered it contrary to public policy to do so. They have considered themselves bound by previous decisions, but the tenor of their language was that, if it depended on them, they should never adopt such a principle. Speaking of covenants arising out of such separations, Lord Eldon observed that Lord Stowell doubted whether covenants arising out of private separations were legal contracts, and ought to be the foundation of an action for specific performance, and added, "That doubt has long since had place in my mind." Again he says, "That if this point were re-considered he would not have permitted such a covenant to be the foundation of an action at law or a suit in Chancery." Sir William Grant is equally precise on the subject. He says—It is now settled that courts of equity will not carry into execution articles of separation between husband and wife. They recognize no power in them to vary the rights and duties growing out of the marriage, or to effect, at their own pleasure, a partial dissolution of it. It does seem strange" (he is referring now to the agreements founded on articles of separation) "that the auxiliary agreement should be enforced, while the principal agreement is held to be contrary to the spirit and policy of the law.I hope I have not tired your Lordships 1697 with these passages. They are of the utmost importance, because they come to this—that the Courts consider the agreements of separation to be contrary to public policy and inconsistent with the contract of marriage. Something has been grafted upon this, however, which has led to a different conclusion as to the auxiliary part, but in giving effect to the auxiliary part, though the Judges have been compelled to abide by previous dicta, they have all protested against the original separation. It is on these grounds, then, that I say your Lordships should do nothing to facilitate a separation which all men who have considered the subject believe to be inconsistent with the law of marriage and at variance with public policy. But my noble and learned Friend goes much further than the present law. As that law stands, I believe—though it is true I have not been in courts of justice lately—that such a contract is not binding upon the wife. She may at any time sue for a restitution of conjugal rights in the Ecclesiastical Courts, and I believe there is no case in which a court of equity has ever enjoined the wife against taking such a proceeding. Therefore my noble and learned Friend is not merely facilitating an action under the present law, but he is going one step further. At present, although a man may have entered into a covenant such as I have described, it by no means follows that, if he sues in an Ecclesiastical Court for the restitution of marital rights, the Court of Chancery will enjoin him against such a proceeding. In the case of "Wilson v. Wilson," which came before the House on appeal in 1854, there was a covenant not to proceed in the Ecclesiastical Court. What did my noble and learned Friend—then also holding the Great Seal—say upon that point? He said it was true there was a covenant, but he must leave the parties to their natural rights; he would not interfere with the jurisdiction of the Ecclesiastical Court. I say, then, that my noble and learned Friend is not maintaining, but is altering the law by this Bill; and if he does that which is, as I believe, contrary to what all the Judges have considered as consistent with public policy, contrary to the law of marriage, and the contracts arising out of it, then, my Lords, unless my noble and learned Friend makes a great alteration in his Bill, I think he will not succeed in passing it through both Houses of Parliament. In the same case of "Wilson v. 1698 Wilson," my noble and learned Friend (Lord St. Leonards) expressed the following opinion—For it does not at all follow, because the Court of Equity compels the appellant in this case to enter into a covenant that he will not, by the force of ecclesiastical censures, compel restitution of his conjugal rights, that the Court would enjoin him from breaking that covenant which he has entered into; the Court, I apprehend, would leave him to answer any action that might be brought for damages upon the covenant. What amount would be recovered would be another question.So that you will see, when a party enters into a covenant, in consequence of an agreement of separation, that he will not sue for the restitution of conjugal rights in the Ecclesiastical Court, it does not follow that the Court of Chancery will enjoin him from such a proceeding, because the other party has another proceeding open—namely, the recovery of damages by an action for a breach of covenant. I hope, therefore, my Lords, that my noble and learned Friend will so alter the clause I refer to when we go into Committee that the objections that I have urged against it may be in some measure obviated. I trust I shall be pardoned for the observations with which I have troubled your Lordships, but the deep interest I feel upon this question must be my excuse.
THE BISHOP OF EXETER
(who was almost inaudible) said, that the great object of such a measure ought to be to establish the same law for the poor as for the rich; and as he believed that the present Bill could not possibly effect that object, he would move the postponement of the second reading of this Bill for three months, in order to give the noble and learned Lord on the woolsack time to amend it. The present Bill created for all England one exclusive Court in matters matrimonial and divorce, and that Court was to sit at Westminster. Now, that might be very well for the people of Surrey and Middlesex, but what advantage could it be to the people of Cumberland or Yorkshire? It was, no doubt, true that by certain provisions of the Bill evidence could be taken in the country by commission; but surely it would do away with all the advantage which the Bill proposed to confer on the poor man if he were put to the expense of an inquiry by a commission. The only way to make justice cheap in this matter, and easily attainable, was to establish throughout the country district courts, which would administer justice in each 1699 particular locality. Their Lordships must remember that they were legislating, not for the benefit of the opulent, but on a question which was essentially the people's question. It was a question, too, which related not only to the domestic happiness of the people, but to their religion: and there was a principle involved of which their Lordships were bound not to lose sight—namely, "Those whom God hath joined, let no man put asunder." He did not mean to say that in certain cases divorce was not justifiable; but that in legislating on such a question they ought to have regard to the principle of the Divine law. To put a poor man to the expense of an inquiry by commission would be a perfect mockery, for if the court itself were not carried into the country, neither would justice be so. He trusted, therefore, that their Lordships would not sanction a measure which, in reality, infringed upon the relief which the people had a right to expect. As to the proposed Court at Westminster, its form of procedure was to be that of the Ecclesiastical Court, and yet the Dean of the Arches would be the only one of the Judges conversant with that method of procedure:—the other members of the Court were to be either common or equity lawyers. It was necessary that their Lordships should look at this case in a somewhat larger view than they had hitherto done, and that they should regard it as connected with those great statutes of reformation which were passed in the times of Henry VIII., Edward VI., Elizabeth, and James I. The present law of divorce in this country was founded on the law of Rome; and they (the Commissioners) must make up their minds to give their whole thoughts to the subject; and they must not fancy that they had a light labour to undergo, for they might depend upon it that the web which had been woven by the Church of Rome was not to be easily broken through. It was not by a few smart sayings that they could get rid of a system which had been inaugurated by the wisest but most corrupt of Churches; and he must say that, in his opinion, the question had, down to this time, been most partially and superficially dealt with. If they meant to carry out the matter satisfactorily, they ought to appoint a Commission which should have the power of examining learned divines as to the doctrines of the Church on the subject. The Commissioners who had previously reported upon it had exhibited a marvellous unfitness for the inquiry, and 1700 it was evident that they wanted some one to tell them what was the law of God, and how the law had been carried out, not in Rome, but in a purer state of the Church. The doctrine of matrimony and divorce had been taken up by a very wise Sovereign, Constantine, who undertook it about the year 331, with the advice of the bishops of those days; and, having learned from them what the Divine law of the question was, he applied also the wisdom of human laws, and propounded a scheme which was incomparably better than anything which had been proposed since; and their Lordships would remember that Constantine gave to injured husbands a divorce in the event of adultery, and one or two other matters on the part of the wife, but that he refused to give it to the wife, in the case of adultery on the part of the husband, unless there were certain other ingredients in the case. With regard to the doctrine of divorce à mensâ et thoro, he thought that it was wholly inapplicable to the nature of the offence and to the circumstances of the law. It was unknown by the Church of Christ at any period, except under the dominion of Rome; but they were now asked permanently to inflict the corrupt system of that Church upon the Church and nation of England. He regretted to find that there was no clause in the Bill now before the House similar to that which had been proposed by the noble and learned Lord opposite in the Committee for extinguishing for ever that foul reproach to the English people and the English law, the right of action for criminal conversation. He should be perfectly satisfied, so far as that point was concerned, with the assurance that a clause to effect an object so desirable would be introduced into some measure immediately to be submitted to their notice; but he thought that there were some considerations which would render such a provision particularly applicable to the present Bill. In the Committee it was also proposed that the adulterous parties should be liable to the punishment of misdemeanor. Whether that was the right mode of dealing with the subject he would not stop to inquire, but upon this portion of the case he observed that, under the most favourable circumstances of justice being brought home, as it were, to every man's door, there would always be a considerable expense incurred in connection with these proceedings, and he suggested, therefore, that a clause should be introduced compelling 1701 the individual who inflicted the injury to bear all the expenses of the process. He apprehended that there would be no difficulty in inserting a clause to that effect. He thought that, in the present state of the Bill, it was not one that ought to pass. Such a measure ought to receive the consideration of men of different professions, especially of the clergy; and persons well qualified to tell them what had been the Divine law and the law of the Church in the present times, and what had been the practice of different Christian countries, ought to be examined before the Commission. It would not do to found such a Bill on the opinions of lawyers alone, however eminent. He had not asked a single individual to support him, but, if he stood alone, he would ask their Lordships to read this Bill a second time that day three months.
§ Amendment moved, to leave out ("now,") and insert ("this Day Three Months").
§ LORD ST. LEONARDS
said, that so far as he understood, the present Bill left the law on the subject of divorce exactly as it found it. It merely proposed to give to another Court that prerogative in such cases as had hitherto been exercised by the Legislature; and as complaints had been made that Parliament withheld from the poor what it gave to the rich, he trusted that the institution of the new Court of Divorce, which would give a remedy both to rich and poor, would remove that reproach. He should therefore be disposed to give his assent to this Bill if it assumed the shape that he thought it ought to have. He was not disposed to alter the law, but he would give to the proposed Court the power which at the present time was only exercised by Parliament. To suppose, as some did, that it might be rendered easy to obtain a divorce, and at a light expense, was, he feared, somewhat chimerical. The right rev. Prelate who had just spoken had objected to the new Court that it was a central Court; but how could that be avoided? Was it possible in cases of this kind to have a roving commission, or even to have stationary Courts in various parts of the country? He desired as far as possible to put the poor man on a level with the rich, but he must at the same time say that he was by no means so desirous of facilitating the obtaining of divorces, as to place it in the power of every inconsiderate person, whether man or woman, to rush into these Courts and demand a divorce as if they were going to demand 1702 the payment of a common account. At present there was less inequality than was generally supposed, because a poor man who came to that House and swore that he was not possessed of more than a certain sum might sue in formât pauperis. In several cases divorces had thus been granted to poor men without expense, and they were not therefore justly open to the reproach of having shut their doors against the poorer classes. There were but few cases comparatively in which this remedy had been afforded to the rich, and some cases in which there had been denials of divorces to those who were rich. To revert, however, to the Bill which was immediately before the House. His noble and learned Friend said he had not reproduced in the present Bill the clause which had been introduced into the Bill of last Session, which prohibited the marriage of persons divorced on the ground of adultery with the partakers of the crime; nor was there any clause which did away with the action at law for damages. He should be sorry to see a clause introduced into the Bill prohibiting the marriage of the adulterer with the woman he had debauched. Theoretically, he had never believed that the law ought to prevent the offending man from remedying the wrong to the woman whose prospects he had destroyed. Practically, he believed that in many cases there could not be a more sure punishment upon the man than the necessity of marrying the woman whom he had ruined. The moment the marriage tie was broken and dissolved the woman was at liberty to marry again, and a man was bound in point of honour, and could scarcely evade the claim, however degraded, to marry the woman. No doubt a man would be glad in many cases to shield himself when called upon to repair the wrong he had done, under the pretence that the law prohibited him from marrying the woman, but to give him the liberty to marry her would be a salutary check rather than an encouragement to adultery. He trusted that actions to recover damages, to which a party suing for a divorce must now resort, would be abolished, for he perfectly agreed with the right rev. Prelate that if there was anything more disgraceful than another in our legal procedure it was this action for damages. He should like to know what a man was to do with the money so recovered? He could scarcely mix it up with his common funds, or consent to use it for his own benefit in any of the ordinary 1703 transactions of life. He would no more touch it than he would touch scorpions. But the question was not so much whether that which was after all no compensation to an injured husband, should be taken away, as whether the person who had committed the crime should escape unpunished. What he would suggest was to abolish that form of action, which disgraced us in the eyes of foreign nations; to make the injury a misdemeanor, which the husband alone should have the right of prosecuting; and to punish, on conviction, by a fine to the Crown. Thus the money would go to a public fund and be applied to public purposes. He would not have it imperative that the husband should have taken proceedings against the seducer before suing for a divorce à vinculo, because the husband might be a poor man; but, if he did not take such proceedings, he would compel him to bring before the Court of Divorce the unhappy lady and the seducer. At present the effect of the action was, that while the man had the opportunity of denying and disproving his guilt, the woman was ruined for ever without being allowed to say one word—without being allowed to say one word by her counsel in denial or extenuation. They should both be heard, and the Court should have the power to impose a fine upon the one, and to pronounce a dissolution of the bonds of marriage as to the other. The provision in the Bill that a desertion of the wife by her husband for two years should entitle the wife to a divorce, à mensâ et thoro was one to which he was altogether opposed. If a wife were deserted he would give her alimony, but not a divorce à mensâ et thoro, as was proposed in this Bill, though not in the Bill last year, nor authorized by any recommendation of the Committee. It was difficult to remedy the injustice of the husband, who had left his wife, suddenly corning down upon her and sweeping off all the property she had realized by her exertions since his desertion and leaving her utterly destitute; but he would try to overcome that difficulty by taking away the right of the husband after his desertion had continued a certain time. He entirely objected to the important alteration of the law of England by the provision enabling married couples to separate by private arrangement between themselves, and making such separation deeds a bar to the restitution of conjugal rights. 1704 According to the present state of the law, a man and his wife could not so separate themselves. Their mutual tie could not be severed except under very peculiar circumstances, and it should be the object of the Legislature not lightly to create facilities for the severance of that tie. The provision in the Bill relating to voluntary separations was open to grave objections. At present, if a woman desired to separate from her husband she had to procure a friend who entered into covenants with the husband to hold him harmless from all debts contracted by the wife, and other stipulations of an onerous character. No person would willingly assume such a responsibility, and the consequence was that when the wife applied to her friends they in the first instance asked whether it was necessary to separate, and inculcated mutual forgiveness and forbearance—advice which in many cases avoided the necessity for any separation between the parties. Under the Bill there would be no such wholesome interference; upon the slightest difference of opinion recourse would be had to the provision in the Bill, and the extreme step of separation would be taken. And then, again, in the event of there being children, no consideration of their interests was to be found in the Bill. With respect to the composition of the new Court to be established, he did not approve the scheme proposed. In the debate upon the Testamentary Jurisdiction Bill he had suggested that the Judge of the Prerogative Court should be the Judge of the new Court to be created under that Bill, and so in this instance he thought the Dean of Arches should still have the administration of matrimonial business. He thought the best course would be to take this Bill and the Testamentary Jurisdiction Bill together, and to vest the supreme authority in both Courts in the same Judge.
THE BISHOP OF OXFORD
said that, without being able to acquiesce in all the arguments of his right rev. Brother, he should feel himself bound to vote for the Amendment if it were pressed to a division. He assumed that in all legislation upon this subject the first obvious principle to he observed was to surround marriage with every new fence and every guard that could be devised. After a careful perusal of the Bill before the House, he had arrived at the conclusion that it had been framed upon a totally different principle, and in the new clauses for voluntary separation 1705 this principle was carried to the utmost, for his noble and learned Friend on the woolsack was thereby affording every facility to those who wished to violate the marriage tie. No one could desire to be freed from the tie of marriage without the existence of sin on one if not on both sides. In granting any relaxation of the present law the first consideration ought to be whether, by granting that relaxation to a few persons whom sin had brought into difficulties, injury was not done to numerous innocent persons who were maintaining the sanctity of marriage. He regarded the provision relating to voluntary separations as affording an indication of the principles upon which the Bill had been constructed. It was the introduction of a totally new principle—that upon the occasion of any slight difference or misunderstanding between a married couple they could proceed to destroy the most solemn religious compact of marriage. That provision marked the animus with which the Bill had been framed. At present persons separated were in an anomalous and not creditable position, because the law did not sanction their separation. But if the law stepped in and recognized the position of separated parties, the law must be held to some extent to invite that separation, by giving them a status in society which they did not at present possess. He thought the Bill was undoubtedly in its chief provisions a delusion, because it professed to be an attempt to do away with the superior advantages, as they were called, which the rich possessed over the poor in this matter, but, practically, did not advance a single step towards that end. But it was said that a poor person could sue in formâ pauperis before the new divorce tribunal. In order to do that, however, he must swear that he was not worth £5 in the world, and all the poor class who could not take that oath would virtually be excluded from the benefit of the Act. But even those who could proceed in formâ pauperis could not do so so as to bring their suit to a successful issue, for how could they find the means to pay the expenses of the numerous witnesses who would be necessary to prove that there had been no collusion between the husband and the wife or adulterer? He contended, moreover, that the more their Lordships brought down those actions to the lower ranks of society the more danger there would be of collusion. The Bill did not, he repeated, do away with the difference between the several 1706 ranks of society in this particular point. But there was another ground on which it was objectionable, and it was this,—if they dealt with this question at all he thought they were bound to do away with that foul reproach on our law, the action for criminal conversation. He was not prepared to read any Bill a second time that did not face the difficulties which beset that question. Of all others, a Government Bill ought to have presented some mode of meeting those difficulties. The House ought to have the whole scheme before them in its completeness before they were asked to deal with it. Those were great fundamental principles with which they ought to deal in the Bill under consideration before it was read a second time. But the Bill was so scanty, silent, and incomplete on many of the most essential requirements, that he thought if they proceeded further with it in its present shape they would involve themselves in the most inextricable confusion hereafter in dealing with this subject. The voluntary separation clause was, perhaps, the most remarkable thing about the Bill. He thought he remembered to have heard it said by a noble and learned Lord in a former debate that the principle of voluntary separations was part of the law of France, and was found to work well. He (the Bishop of Oxford) contended that there was no such principle in the law of France—even in the laxest of all codes on marriage, that of 1792. Besides, in most, if not all, of the other countries on the Continent, who were by no means austere in their views, the system of voluntary separation had been repudiated. The French law laid down this wise and philosophic principle, that "marriage does not subsist for spouses alone, but for the children, and for society; it is in its essence permanent, and we cannot fix a term to it." He therefore on these grounds would strongly beg their Lordships to adopt the Motion which had been made by his right rev. Friend (the Bishop of Exeter). He repeated they ought to have a nobler basis on which to legislate on this most important subject. He might be suffered to remind their Lordships that, even with all the evils of the existing system, they could hardly calculate the mischiefs they might do by meddling with it, and that, in dealing with the subject, the deeper they descended into the lower strata of society the greater would be the disturbing influences they would have to encounter. The 1707 present system might require change; but, in God's name, let alterations, if any such were made, be most maturely weighed. Let them be alterations which would suggest to every mind the idea that they were final; that they were not the beginning of a set of changes with regard to this holy law; that they were, as far as the Legislature could make them, final—final because they were the embodiment of the conviction of the great minds of England that these laws had been made to accord with the law of God. Such changes should not be introduced as an expedient to get rid of present difficulties, as if in dealing with the law of marriage Parliament was dealing with some of the trifling rules affecting the transfer of property, but as though it was dealing with a great institution of God, upon which the purity and the happiness of this Christian land, more than upon any one other matter, did indeed depend. It was because he believed that this Bill could lay no claim in its principles to be the embodiment of such an idea—because he believed it would shake everything and settle nothing—because he believed it would tend greatly to unhinge men's minds as to the sanctity of marriage, and would lead to no permanent and purifying result, that he ventured to entreat their Lordships not to give it a second reading.
§ LORD WENSLEYDALE
said he could not concur in the proposal to defer the second reading of this Bill for three months. He believed it to be imperative upon his noble and learned Friend on the woolsack to introduce the measure in the present Session, after the understanding which had been come to at the close of last Session. The Bill had its origin in the recommendation of a Committee consisting of very learned and eminent persons, among whom were the Lord Chief Justice of the Queen's Bench, Dr. Lushington, and other high authorities, who recommended the establishment of a court differing in construction from that existing before, which should take cognizance in all cases matrimonial, and possess the additional power of dissolving marriage. Now, it was abundantly clear that, from the time of the Reformation to the present day, the law of England was that a legal marriage should not be dissolved except by Parliament, and he must own that upon this part of the Bill he had some misgivings. Generally speaking, it was not a fit thing to confide to a court of law, which was established for the 1708 settlement of disputes between man and man as to their legal rights, that relief which Parliament alone can give. Of late, however, a different course has been pursued. Last Session his noble and learned Friend on the woolsack brought in a Bill enabling the Court of Chancery to grant certain powers to tenants for life, which powers before that time could only be conferred by Parliament. No doubt such a measure, saving the public, as it did, the time and expense involved in passing private Bills through Parliament, was a wise and beneficial one. When, however, the question was as to the propriety of giving to a law tribunal the power of deciding whether or not divorces should be granted, he confessed that upon that point he entertained some doubt. The proceedings in Parliament were exceptional proceedings, and they were attended with this advantage—that although Parliament had laid down certain rules beyond which it would not go—as, for example, that a divorce should be granted on the ground of the wife's adultery, or incestuous adultery on the part of the husband, yet it was not bound by those rules, it might depart from them in any case if substantial justice required. Were they to entrust such a jurisdiction as this to an ordinary court? It was said that the establishment of this new court would give to each party a cheaper mode of obtaining the redress to which he or she was entitled. His fear was, however, that if such a jurisdiction as that contemplated in this Bill were created no answer could be given to any future demand for an extension of the power of deciding these questions; and no one could then say why it should not be brought home to the door of every poor man, and why the County Court should not have authority to dissolve the marriage tie. That, in his opinion, would be a very serious evil, and he thought it extremely likely to introduce into the lower orders a degree of profligacy and a corruption of manners which could hardly be contemplated without dismay. It was argued that this must be a false alarm, because in Scotland, where a different state of the law prevailed with regard to divorces from that now existing in this country, no such evils ensued. The Scotch, however, besides being a moral people, had long been accustomed to this law, and he did not think such an alteration in the English system as the present measure seemed to involve would have the same harmless effect upon the people of this country. 1709 This, however, was only a presumption of his own, and inasmuch as the question had already been discussed, and the principle to which he had referred had been decided on by a large majority, he felt it impossible on this ground to refuse to go into Committee, where, perhaps, the provisions of the Bill might receive satisfactory alteration. He would say the same respecting the points of detail referred to by his noble and learned Friend (Lord Lyndhurst), and by the right rev. Prelate who had just addressed their Lordships. His noble and learned Friend had stated that deeds of separation of husband and wife were contrary to public policy. The legality of these deeds had certainly been questioned more than once by Lord Eldon and other authorities, but there was not the least doubt that they were as perfectly legal as any other contract, and might be enforced in every court of justice. [Lord LYNDHURST: By injunction?] No, certainly not, because he was aware of the case of "Wilson v. Wilson;" but if his noble and learned Friend maintained that an action arising out of these contracts would not lie, and that such contracts were illegal and void, this would be a doctrine which no other man in the profession would hold. It might be that a court of equity would not take cognizance of such contracts, but that these contracts would be held valid in any court of law he apprehended there was not a moment's doubt. This being so, it would be for their Lordships to consider in committee whether the law on all these points of detail should remain as it was, or should undergo revision. He saw no reason why they should not consider the different clauses of the Bill in Committee, and fer that reason he should certainly give his vote against the postponement.
§ THE EARL OF DERBY
I came down, my Lords, with the intention of voting in favour of the second reading of this Bill, because I thought that the advantage which might be produced by it would preponderate over the disadvantage; but I have never in the course of my experience heard a speech which has caused me to feel so much hesitation as to what vote I shall give as that of the noble and learned Lord who has just sat down. In the first place, I should naturally approach with great reluctance and doubt a subject involving such important considerations as a Bill must do which affects marriage and divorce, and when I find that the principle of this Bill is condemned in a most able 1710 manner and with great eloquence by the only two Members of the right rev. Bench who are present on this occasion, those feelings of doubt and reluctance must naturally be much increased. I should have thought, my Lords, that if there were one question to which the heads of the Church in their legislative capacity were bound to give their utmost attention and consideration, and to advise your Lordships as to what is the law of the Church, what, in their opinion, is the law of God, and what the effect upon the moral and social condition of the people under the present system, that question would be the question of marriage and divorce. It is to me a matter of deep regret that, on a recent occasion, when the subject under your Lordships' consideration was almost entirely of a secular character, no less than twenty-three right rev. Prelates gave their votes, and that on the present occasion, when it would well become the right rev. Bench to enlighten your Lordships on this subject, there are only two right rev. Prelates present. When, again, I turn to the legal authorities, and, without any disrespect to the noble and learned Lord who spoke last, I may say the highest legal authorities, my doubts are increased. I find the noble and learned Lord throwing his vote and his speech into opposite scales, for although he has stated his willingness to go into Committee on this Bill, he has expressed grave doubts as to the expediency of substituting a court of law to supersede the exceptional jurisdiction of your Lordships' House. Now, my Lords, that appears to me to be the very essence of the Bill. The great objection to the existing practice is that it renders necessary a succession of legal proceedings, there by giving a great advantage to the rich over the poor, and practically depriving the latter of any advantage of the law. Now, the whole principle of this Bill is to do away with the present exceptional course of proceeding, and to bring every case before a judicial tribunal; and I do not, therefore, understand how the noble and learned Lord can be prepared to go into Committee upon a Bill about the principle of which he entertains grave doubts Having listened to the two right rev. Prelates who have spoken on this subject, I confess I cannot go so far as to hold with them that by the law of God the marriage tie is indissoluble.
THE BISHOP OF EXETER
said, he had not intended to convey that impression, for he admitted its dissolubility in certain cases.
§ THE EARL OF DERBY
Then, as I understand the right rev. Prelate, marriage is dissoluble according to the law of God in certain cases. Marriage is, to my mind, the highest and holiest of human ties; but I hold it to be dissoluble on certain prescribed grounds. I do not, therefore, my Lords, object to the principle of the Bill which lays down the doctrine of the dissolubility of marriage in cases of proved adultery, nor do I object to the principle which declares that those cases shall be dealt with by a judicial tribunal according to established judicial rules of proceeding, instead of being dealt with as exceptional cases. Adopting, therefore, these two principles, I am prepared to go into Committee upon this Bill. I agree with the right rev. Prelate (the Bishop of Oxford) that a more workmanlike measure might; have been brought forward by the Government—a measure which would have dealt with the other matters to which reference had been made. Still, agreeing with the right rev. Prelate, I go further and say that this Bill ought to be a final measure, and I think that it would be a great misfortune if it went out of your Lordships' House without dealing with those other important subjects which have been touched upon in the course of this discussion. I quite concur with my noble and learned Friend (Lord St. Leonards) that this Bill should not pass through your Lordships' House without some provision being added to it repealing the scandalous action for damages in cases of criminal conversation. I know not—for I had not the honour of being a member of it—upon what ground, the Committee of last year thought it necessary to repudiate the proposal to consider these two questions together, and to do away with that odious action, at the same time imposing a penalty upon the adulterer. There is in law no difficulty in imposing a penalty upon a man who has robbed the person who has trusted him of a trifling sum of money, and it is open to the judge and jury, more especially to the judge, in measuring out the penalty to be inflicted, to take into consideration whether there has been any undue negligence on the part of the prosecutor, or any undue exposure of his property, or whether there are any extenuating circumstances. Yet, in the case in which the 1712 highest injury is inflicted which man can inflict on man, in which a man is robbed by the man whom he has trusted of that which is dearer to him than anything upon the face of the earth, when his social position and the reputation and success in life of his children are affected by the wrong done to him by his friend, the law says that that injury shall not be visited with any penal consequences, but that the person injured may obtain in the shape of a sum of money a paltry reparation for an irreparable wrong. I admit, my Lords, that nothing can be more absurd than to attempt to make men moral or virtuous by Act of Parliament; but the question is whether we may not employ the criminal law advantageously to check an outrage upon society. I cannot understand upon what principle any hesitation can be felt in accepting the principle of doing away with the present disgraceful action for damages, and imposing upon the adulterer a criminal penalty. I do not understand why the discretion should not be allowed in each case of visiting the offence with fine or imprisonment, as in other misdemeanors. If you visit it with fine alone you place the rich man in a better position than the poor; and if you say that in the event of the fine not being paid imprisonment shall follow, the rich adulterer will have comparative impunity, while the poor man may have to undergo a long term of imprisonment. We are, my Lords, severe enough, and properly so, upon the crimes of violence, robbery, and attacks upon property or life, in which the lower classes are subject to greater temptation than we are; and it is our duty to take good care that there shall be no feeling on the part of the country that those temptations to which the rich are at least as much exposed as the poor should be deemed less criminal and treated with less severity. I trust, therefore, that this Session will not pass over and that this Bill will not leave your Lordships' House without there being some such measure passed or engrafted upon this Bill as was proposed by my noble and learned Friend, and that we shall do away at once and for ever with that opprobrium on our law, the action for damages for criminal conversation. There are two or three other clauses which have already been adverted to which appear to me to be very objectionable. The 17th clause, for example, it is impossible ever to agree to. Everything which tends to give additional facilities to the hasty separation 1713 of married persons, without affording time for the passions to cool, or for the intervention of the advice, assistance, and counsel of friends, should, in my opinion, be carefully guarded against; for it is not the policy of the Legislature to encourage those separations hastily, without due consideration, and without those checks which the law at present imposes. I agree with my noble and learned Friend also in his objection to the 15th clause of the Bill, which, contrary to the recommendation of the Committee, permits the I granting of a divorce à mensâ et thoro to the wife upon the ground of desertion. I think, with my noble and learned Friend, that that is carrying the principle further than is desired. I agree that there ought to be a provision by which the wife may be secured and protected in the event of, long-continued desertion by her husband; but when my noble and learned Friend; said that there was no provision for securing to the wife any property obtained by her own exertions after her desertion, I think that he overlooked the 18th clause, which would give her entire protection in the case of a divorce à mensâ et thoro. On the whole, I look upon this as being very far from a perfect measure. We have a choice of evils and of difficulties in this matter; but the state of the law at present is such that we cannot adhere to it as it stands, and the question is whether we shall absolutely prohibit all dissolution of the marriage tie, or whether we shall adopt some such provisions as the present Bill contains, which shall make the law positive and conclusive, instead of being as now optional and uncertain. Under these circumstances I shall vote for the second reading of the Bill, trusting that it will receive the fullest consideration before it passes through Committee.
§ THE MARQUESS OF LANSDOWNE
My Lords, an opposition has been raised to the seeond reading of this Bill which I must say I hardly anticipated, because it is only carrying out that which has been the manifest intention of Parliament for years past. I utterly deny that the Bill which has been laid upon your Lordships' table is calculated to facilitate divorces or to render the law of marriage more lax. Its object is to record the principle that the present mode of effecting divorces is liable to great and serious objections, and to substitute for that which has been found to be attended with so many evils a more safe, a more just, and, let me add, a more 1714 decent method of dealing with such cases. It is intended to carry out suggestions which were discussed in a Committee of your Lordships' House, and to give effect to that which has already the concurrent approbation of almost all sides of the House and almost all classes of the country. But the Bill effects that partly by means and machinery which were suggested last year, and partly by some additions which have been made with the view of obtaining for it a more universal consent. It is unnecessary for me to enlarge upon the subject of actions for criminal conversation, because I endeavoured to impress upon your Lordships last year what were my views with respect to it; and because my noble and learned Friend on the woolsack well knows that my constant opinion has been that neither this Bill nor any Bill of this nature ought to pass if it were not accompanied, or immediately followed, by a Bill removing that great stigma upon the legislation, the manners, the habits, and the customs of this country—the trial for what is called "criminal conversation,"—which exists in no other country in the world, and which, existing here, is represented in all other countries in the world as an indication of, I will not say the "degraded," but of the loose, selfish, and sordid principles which prevail in this country. When I am told that the Bill as it now stands, does nothing to remedy that practice, your Lordships must bear in mind that most of those actions have been instituted with a view to obtain that which could be obtained in no other way, the divorce not being procurable until such an action had been brought. I agree with your Lordships in opinion that this Bill ought to be for the poor as well as for the rich; and I apprehend, so far as the Bill goes, that greater facilities will be afforded by it to persons who approach the tribunals of justice than exist now. At present many actions are necessary, and the expenses are great; and even if the attendant expenses should still be heavy, at all events all the legal poison, so to speak, will be concentrated in one place, and all the fees paid and all the extortion incurred—if there be any—will be under one roof and in one proceeding. I think it is most important that this Bill should pass. It is not improbable, as the right rev. Prelate has foretold, that you may have a greater number of divorces under the operation of this Bill; but they will only be permitted where they are required. And, my Lords, 1715 judging from my observation, and speaking as a member of society, I believe that the evils arising from the want of the power of divorce are as great among the lower orders of this country as among the higher classes—nay, I believe them to be greater. I believe that the vice and misery of every kind that ensue from the want of this power of separation, are much greater among the lower orders of this country than among the upper classes. Among the poorer classes this want not only leads to actual vice that is tolerated by the absence of divorce—the wife living in a state of adultery and incontinency—but to that other vice which is the greatest bane of the lower orders of this country—the vice of drunkenness. I have found in my own neighbourhood, and I dare say the testimony of every noble Lord who hears me as to the manners of his neighbourhood will be to the same effect, that many drunken persons have been led to that habitual state of drunkenness from having a debauched wife, with whom they could not live in peace at home, whom they could not respect, and whose ill conduct leads them to go abroad and indulge in those habits of drunkenness. So that, while the wife lives in a state of vice, and has intercourse with another man, the husband is led, from the impossibility of obtaining a separation from her, to indulge in habits of dissipation. It is possible that if the House will go into the inquiry, some means may be found of extending the tribunal having cognizance of these cases to every part of the country. The experiment having been once tried and succeeded, it may be possible to extend the power, at least of obtaining evidence, to every part of the country, and then we may attain that which must be the object of all your Lordships, and extend the power of obtaining a divorce to all classes equally. Before I sit down let me add one word on the 17th clause, which gives married persons the power to separate by arrangement. I think that you should requite a certain interval between the signification by the parties of an intention to separate and the time when that declaration acquires a legal force and effect. We have a precedent for this in the French code. By that code a divorce for a séparation de corps is not given at once. The parties have to signify their intention, which is formally notified through the mayors of the communes, and has no effect until after the lapse of a year or two, according 1716 to circumstances. If at the end of that time the parties manifest their intention to persevere, the notice then acquires the form and substance of a law. I have understood, on the best authority, that the result of that interval of delay is that a very large proportion of the parties who have signified an intention to separate come forward at the end of the year, and declare themselves changed and reconciled to each other by the mere operation of the law, which thus interposes a valuable test by compelling the parties deliberately to review their intentions. If your Lordships adopt some modification of the law in this respect it may be very desirable; but in principle the law of France is sound, because I am satisfied that there exists in England, in the higher classes of society as well as in the lower, a practical separation on the part of those who desire to separate more formally, and to come before a tribunal which can give a validity to those arrangements which ought to be made, but which at present these parties are not able to enforce. For the want of such a tribunal these parties live in a state of conflict, which is the occasion of incessant disputes and torment, and is productive of nothing but mischief to the family. And, my Lords, when I am told that it is the interest of the children that these separations should not take place, I say that the interests of the children will be better provided for under a separation regularly entered into, and where the tribunal will give validity to the contracts made between the parties, than where the children are left to witness disputes between parties who wish to separate, but who live together for the purposes of hatred, because they are not able to give legal form and solemnity to their separation. It might be true that these separations did not exist in France during the iniquitous period of 1792. The revolutionists encouraged divorce rather than separation; but upon the first occasion on which the question of divorce was reconsidered the French immediately had recourse to a séparatoin de corps, which is now the law in France, and which exists under the modifications I have described. I do not pretend to say that I think this Bill perfect, or that it ought to go forth in its present shape without amendment. But the subject has been long considered. We have had the Report of a Commission and of a Committee of both Houses of Parliament, and there is no reason for interposing any further delay. Your Lordships may rely 1717 upon it that this question of divorce will remain a constant subject of discussion until you reform the existing state of things. I trust that your Lordships will not oppose the second reading of the Bill, and that you will agree to it for the purpose of making the Bill perfect in Committee.
§ EARL GREY
said, that if he voted for the Amendment of the right rev. Prelate, he should not do so because he was an advocate for the existing state of things. No man was more strongly of opinion than himself that the present state of the law was disgraceful and ought not to be allowed to continue. But it must be admitted that the right rev. Prelate had been successful in showing that the Bill was extremely imperfect, and his noble Friend who had just sat down had given additional reasons for this belief. The very foundation of the Bill was the constitution of the Court which would have to decide questions of divorce. The noble Marquess said that it was more necessary that facilities for divorce should be extended to the very lowest class of society than to any other: but if that were the object of the Bill, and if it were a Bill for the poor, was it not a mockery to constitute a Court of which the Dean of Arches was one member, the Lord Chancellor another, and the three chiefs of the common law Courts the remaining members? How could such a Court deal with the number of cases that came before them? It was matter of extreme difficulty and doubt how far they ought to afford facilities for divorce; but his opinion was that Parliament ought to provide some means by which all ranks of society should be relieved from wives who had committed adultery. The measure was shown by its supporters to be altogether inadequate to accomplish the object which they had in view. He was perfectly persuaded, from experience in both Houses of Parliament, that to read an immature and ill-digested measure a second time was not the way to expedite reform; and, being thoroughly convinced that this Bill was so essentially defective it was impossible it could ever be made a perfect piece of legislation, he should vote for the Amendment of the right rev. Prelate. Let the Government take this Bill back, revise it carefully, get the best assistance they could, and lay upon the table such a measure as their Lordships might pass with a fair expectation of obtaining for it the sanction of the other House of Parliament, and of its working 1718 when brought into operation, in a manner satisfactory to the country.
§ LORD REDESDALE
was confirmed in the opinion which, as a member of the Commission, he had expressed, that it was impolitic to introduce any law by which divorces à vinculo could be obtained. The objections taken against this measure were objections against any measure of the kind. What their Lordships ought to do was steadfastly to uphold the law, and refuse to grant exceptional Acts for the dissolution of marriage. From the earliest period no such remedy had ever been open to the nation at large, and the consequence was that in no country in the world was there more domestic happiness or greater regard for the marriage tie than in England. It was absurd to suppose that the principle of divorce, if once admitted, would not be carried further, and ultimately divorces be granted for comparatively light reasons. Believing that this alteration was not demanded by the people generally, and that, if made, it would cause greater mischiefs than it would cure, relieving a few cases of hardship, but introducing misery into many families, he should certainly vote against the Bill.
THE LORD CHANCELLOR
said, that when he had the honour of introducing this Bill, he never supposed that there would be any serious opposition to it on the part of their Lordships, and he thought he was justified in that opinion. He might remind their Lordships that, with the exception of a very few particulars, the Bill was ipsissimis verbis the same as their Lordships sent down last Session as a proper measure to the House of Commons. He thought it would, under those circumstances, have been an impertinent waste of time, if on moving the second reading he had done more than give an explanation of the way in which it differed from the Bill of last year. There had been some objections urged to which he would very briefly direct attention. The right rev. Prelate who moved the Amendment stated that upon such a matter it was not right to legislate without much more previous consideration. What amount of previous consideration did the right rev. Prelate consider would be sufficient? The question was ten or twelve years ago referred to a Committee of their Lordships' House, and that resulted in a Commission consisting of Dr. Lushington, Sir W. Page Wood, Mr. Walpole, Lord Campbell, and one or two others, whose names did not at that moment 1719 occur to him. Those eminent persons investigated the matter with great care, and issued an elaborate Report, in which they urged substantially the propositions contained in the Bill now before the House, namely the constitution of a Court—not so perfect as that provided fur by the Bill—but a Court to consist of a Vice Chancellor, a common law puisne Judge, and an ecclesiastical Judge. The present Bill substituted the Lord Chancellor for the Vice Chancellor, and the Chief Justices of the common law Courts for a puisne Judge. The Bill had been referred to a Select Committee and Amendments had been introduced. Five days of anxious attention had been devoted to the measure, and the result was that the Bill introduced last Session was passed through their Lordships' House. That was the Bill which he now asked their Lordships to read a second time. What, then, became of the allegation of the want of previous consideration? If it had been said that there were such great difficulties surrounding the question as to render legislation impossible, he could have understood it; but he believed that to expect to derive further information by any amount of further inquiry was to hold out a hope that could never be realized. It was said that this court was a sham; that we were constituting a tribunal just as inaccessible to the great bulk of Her Majesty's subjects as the present system of relief; but he denied that in toto. He did not mean to say that the poor man would have the same facilities in applying to this court as the rich man, but where was there any court in which that was the case? That was one of the advantages of wealth which could not be prevented. But the Bill would relieve the poor man from the necessity of applying to three expensive courts for redress. If an attempt had been made to pass at once from the highest tribunal in the country—their Lordship's House—to the County Courts, it would have been scouted at once as impracticable; but the tribunal as now proposed was precisely what had been approved by their Lordships last Session, as recommended by the Select Committee. Of course, if any improvement could be suggested they could be listened to in Committee. There were some variations from the Bill of last Session which he had introduced considering them to be improvements in the measure. The Select Committee recommended that if a woman was 1720 deserted for the term of two years—he believed—without any reasonable cause, that then it should be competent to the Court to grant to her alimony, to continue until further order of the Court. In the present Bill, that had been altered by proposing that, instead of alimony, it should give a right to a divorce à mensâ et thoro. If, however, their Lordships objected to that introduction and thought it better that the original clause should be restored, it was easily done—it only required the stroke of a pen. It had been objected to the 17th clause that it would alter the whole of our social relations, because it would facilitate voluntary separations. Now the progress of judicial opinion had gone on altering from time to time on the subject, and he would say, without fear of contradiction, that the doubts which were thrown formerly on the validity of deeds of voluntary separation were now totally scouted. There was not the smallest doubt that contracts entered into to facilitate those separations were contracts perfectly valid. The object he had in proposing the clause was not to facilitate separations, but to facilitate the machinery for separation. It might be that, the clause was not fenced about with sufficient protections—it might be that it would be improved by requiring the lapse of a certain time, and the concurrence of friends to the act of separation, and he would therefore endeavour to make some alteration in that respect before the Bill went into Committee. Many observations had been made respecting actions for criminal conversation. No man could feel otherwise than disgusted at the actions for crim. con. under the existing state of things, but the reasons why those actions had been so common was, that without bringing such notions it was a rule of their Lordships' House that there should be no divorce. When that objection was removed, he believed that those actions would die a natural death. The difficulty the Committee had felt in recommending its abolition was that if there were no such action there would be no remedy against the adulterer. It had been suggested that the adulterer should be tried for a misdemeanor; but was the woman also to be made guilty of a misdemeanor? Then, again, what was the punishment to be? If merely a fine, it would be totally disregarded. He believed that the real punishment would be found in the Bill as it was then before the House—namely, omitting the proviso introduced 1721 by the right rev. Prelate (the Bishop of Oxford) into the Bill of last Session, forbidding the man to marry the woman he had seduced; for he believed that the feeling that he could not abstain from marrying the woman without forfeiting his honour in the world would be a very great safeguard against the commission of the crime. He had thought it right to explain why he he had introduced the matter so briefly to the House at the beginning of the evening; having done so, and their Lordships being aware what the Bill was, he hoped they would, after the great care and deliberation which the subject had undergone—first in a Select Committee on the subject—secondly, before a Royal Commission; and, finally, before a Select Committee of that House—he trusted they would have no hesitation in giving a second reading to the Bill in its present state, in order that any improvements which might be suggested might be impressed on the House in Committee. These improvements, he trusted, would make the Bill, if not a perfect measure, at least one which would be a material improvement on the anomalous state of the law as at present existing.
§ On Question, that "now" stand part of the Motion, their Lordships divided:—Content 25; Not Content 10: Majority 15.
§ Resolved in the Affirmative: Bill read 2a accordingly.