§ LORD CHELMSFORD
said, that in rising to call the attention of their Lordships to the state of the Court of Divorce, he did so with the view of their considering the desirableness of introducing some alteration in the law with respect to it. Perhaps he ought to apologise for opening again a subject which had been discussed so recently as Monday night; but he considered it one of such great importance that he might fairly hope their Lordships would indulge him with a few moments' attention. Serious doubts were entertained whether the establishment of the Divorce Court had been calculated to strengthen public opinion as to the sanctity of the marriage tie, to advance the security of the married life, and to promote the happiness and morality of society. These, however, were considerations of the past. The Divorce Court had now taken its place as one of the permanent judicial institutions of the country, and all their thoughts and efforts ought, in his judgment, to be directed to improving the tribunal, and making it answer the ends for which it was established. He might be permitted to say that a mistake had been made in the original construction of the Court. Whether it was owing to a regard for economy, or from an expectation that the business would be of such a character and extent that it would hardly be proper to establish an independent Court, for some reason the Divorce Court was unfortunately made dependent for a supply of Judges to constitute a Full Court upon other Courts. 777 By the provisions of the Act no sentence for a divorce or judicial separation could take place except before the Full Court, consisting of three Judges, one always being the Judge Ordinary, and the others to be selected from the Lord Chancellor, the three Chiefs of the superior Courts of Law, and the senior puisne Judges in those three Courts. It appeared to him that very serious objections to that system had been manifested in the course of its working. In the first place the having recourse to occasional Judges was calculated to impair the dignity of any Court; and therefore it would be infinitely better to establish the Court upon a permanent footing, with Judges who should constitute a part of the Court—Judges of such dignity as to give a high character to the tribunal. In the next place, the time of these Judges was so fully occupied in their own Courts, that it was extremely difficult to procure their attendance for the Divorce Court, and the consequence was a very great delay and inconvenience to the suitors. There were certain cases where the parties desired that some of the facts should be decided by a jury, and there were other cases which were determined entirely by the Full Court. Under these circumstances causes could not be taken in the order in which they stood on the list. At the head of the list there might be a case requiring the attention of the Full Court, followed by another requiring the consideration of a jury. Some cases must, therefore, be continually postponed from the difficulty of obtaining the attendance of a Full Court. The Judge Ordinary could not take a case and summon a jury and decide it, and then have his Full Court for the next ease. He must make his arrangements and take the jury cases at a particular time, and appoint the cases for the Full Court, when he could obtain the attendance of the Judges. Again, in many instances the Judges of the Full Court did not hear the whole of the case which they were ultimately to decide. The Judge Ordinary alone presided at the trial by jury; but such trials were merely directed to a portion of the case upon which the ultimate decision depended—the single fact of adultery, for instance. When the Full Court was assembled to determine the case, the Judge Ordinary read the evidence taken before the jury in order that they might have the full circumstances before them; but evidence merely road from notes made but a very slight impression on the mind and was not to be 778 compared with the advantages of hearing evidence vivâ voce and seeing the witnesses. All these circumstances had induced him (Lord Chelmsford) to think that it was a great mistake not to have established the Divorce Court originally on a permanent footing, constituting it a Court of considerable dignity and importance, and with Judges with adequate remuneration, making it in fact one of the Superior Courts of the country. The Judge Ordinary was no doubt the primary Judge presiding over that Court; he it was who was imbued with all the principles upon which the practice of the Court was administered—and yet, whenever the Full Court assembled, the Judge Ordinary became almost a cypher—he was the inferior Judge in his own Court. It was quite impossible to do justice to this subject, or even to advert to it for one moment, without speaking of the admirable manner in which the business of the Court had been conducted by his right hon. and learned Friend Sir Cresswell Cresswell. He believed there never was a Court which was launched on its course for the first time under more favourable auspices. It was impossible to over-estimate the indefatigable activity and consummate ability with which his right hon. Friend had conducted the business. Upon his attention being first attracted to this subject, he communicated with Sir Cresswell Cresswell to ascertain what was the state of the business of the Court, and what was the probable amount of time likely to be required in order to transact the business. His right hon. Friend was good enough to send him a Return of the actual state of the business in the Court 011 the 27th of last month. It appeared that the number of petitions for dissolution of marriage now on the file was 275, and the number of them now ready for trial 180. The number of judicial separations on the file was seventy-seven; and the number ready for trial five. The number of cases of nullity of marriage on the file was eight; and those now ready for trial two; while the number of eases for restitution of conjugal rights on the file was fourteen. His right hon. Friend thought at that time that ninety days in the year would be sufficient for the transaction of the whole of the business of the Court; but he (Lord Chelmsford) had been favoured with another communication by his noble and learned Friend opposite (the Lord Chancellor) containing an amended estimate, from which it appeared the 779 learned Judge ordinary calculated there would be about sixty days required for the trial of cases of divorce, and an equal number of days fur the cases of judicial separation, and probably twenty days for motions which the Judge Ordinary had to dispose of. That would make about 140 working days in the year. When his right hon. Friend first communicated to him the time it would be necessary to sit in the course of the year, while he thought it very desirable to place the Court on an independent and dignified footing, he felt that the amount of business would hardly be sufficient to warrant the appointment of Judges who were to be confined merely to the duty of attendance in that Court. It occurred to him, therefore, that he might suggest some other employment to the Judges during the time that their attendance would not be required in the Divorce Court. In January last he communicated a scheme to his noble Friend at the head of the Government and his colleagues; but no opinion whatever had been come to upon the subject, which was therefore quite open to their consideration. It did occur to him that when the two permanent Judges who might be appointed as assessors to Sir Cresswell Cresswell should not be required in the Divorce Court they—being made members of the Privy Council—might form a part of the Appeal Court of the Judicial Committee. The state of that Appeal Court, which was one of the greatest importance, required a little strengthening, for there were now only two permanent Judges who having no other business to attend to could attend regularly, namely, Sir Edward Ryan and Sir John Coleridge. Sir John Patteson could not be expected to attend constantly, and the other Judges had their own duties to look after. For instance, Sir Cresswell Cresswell and Sir Stephen Lushington had their separate courts to attend. It was true that a noble Lord who sat behind him (Lord Kings-down) gave his great services by attending in that Court, and the public were much benefited by it; but it would be well if the Court were regularly supplied with Judges who did not neglect other duties. It appeared to him that his noble and learned Friend did not propose to make permanent Judges, but simply to extend the choice to all the common-law Judges who could not now attend the Court.
§ LORD CHELMSFORD
assumed that it 780 was to be only temporary; but he did not like those experiments in matters relating to the administration of justice, and such a course would leave open all the objections which now existed. There was a suggestion thrown out in the course of discussion the other evening by his noble and learned Friend (Lord Brougham) which appeared to deserve their Lordships' attention, namely, the appointment of some person to watch the proceedings in divorce cases, in order that he might prevent all collusion between parties in cases of that description; but he believed that such an appointment would not prevent collusion taking place if the parties were determined to practise it. His noble and learned Friend had referred without sufficient ground to the presence of the Attorney General being required in all cases where an extension of time was asked in patent cases. The attendance, however, of the Attorney General in such cases could not be considered as analogous to his attendance in divorce cases; for the public, though they were interested in the general cause of morality, were not interested in each particular divorce case; whereas a patent being a monopoly, the public were interested in every case in an application for an extension of the term, and it was the duty of the Attorney General to see that it was not granted except upon sufficient ground. He must, however, say that in his experience the attendance of the Attorney General on those occasions was not of the most satisfactory description. All the instruction which the Attorney General received was a copy of the petition, and he had to gather as the case proceeded any objection which might present itself, if it were not a very beneficial invention, or the patentees had been sufficiently remunerated. He was quite satisfied that the appointment of an official, with extensive powers to compel the attendance of the parties and to summon witnesses, would not prevent improper motives dictating divorce proceedings. There was another point to which he wished to advert, namely, the views which his noble and learned Friend (Lord Brougham) had taken with regard to the form of procedure in the Divorce Court. His noble and learned Friend seemed to be of opinion that the simple form of petition now adopted might be varied and extended so as to prevent collusion. Now, a petition for divorce or judicial separation set forth the material facts in a very simple manner, and there was an affidavit of the party verify- 781 ing the petition. He understood his noble and learned Friend to suggest that the petition should be extended so as to give in detail the history of the whole married life of the parties, including the knowledge of the paramour. He was not aware that that would have any effect in preventing or exposing collusion, because there was no occasion to put in any answer, and the details might just as well be framed collusively as not. But, supposing such a form of petition should be adopted, each statement in it might be made the subject of a separate and distinct issue, and the consequence would be that they would have all the multifarious and voluminous proceedings which were the reproach of the ecclesiastical courts. He ought, perhaps, to apologize for trespassing so long upon their Lordships, but there was another point to which he wished to attract the attention of his noble and learned Friend on the woolsack. It might be in the recollection of their Lordships that when he had the honour of sitting there, his noble and learned Friend asked him whether it was his intention to extend the Divorce Court to Ireland, and when he stated that it was not his intention to introduce a measure of that kind, his noble and learned Friend expressed in very strong and earnest terms his deep regret that such was the answer which he had received. His noble and learned Friend, having attained the object of his highest ambition, was now in a situation in which he could carry out the desire of his heart, and, inasmuch as he took it for granted that his noble and learned Friend was sincere in the regret which he expressed, he begged to ask him whether, among the amendments and improvements of the Divorce Court, it was contemplated to extend the law to Ireland?
§ THE LORD CHANCELLOR
said, that in answer to the question of his noble and learned Friend, he would state that be held in his hand the heads of a Bill which he should have the honour of laying on the table, and that Bill was confined to England. He hoped yet to have the honour of introducing a Bill establishing a Divorce Court in Ireland; but he would rather proceed experimentally in England first, before he proposed to institute a similar tribunal in the sister island. If it had not been for the question which had been so pointedly put to him, he should not have troubled their Lordships with any observations, because he had already stated all that was essential before in- 782 troducing the Bill, and the discussion of the course of procedure, whether the petition ought to be lengthened or curtailed, and of many other points, would come in due course when the Bill passed through its several stages. He entirely differed, however, from his noble and learned Friend with regard to the course which Parliament ought to have taken when the Divorce Court was established. He thought it would have been most rash, indiscreet, and mischievous at once to have established an independent and permanent body of Judges before knowing what amount of business would be brought before the Court. It was much better to proceed experimentally, and he was sincerely of opinion that they had not yet arrived at the time when they could permanently constitute the Court with exclusive Judges. There had been a great amount of business, but that had arisen from there having existed no such tribunal before, and it would be wrong to appoint permanent Judges before they knew whether there would be sufficient business to employ them during the course of the judicial year. His noble and learned Friend said,—"Send them to the Privy Council." He believed that the Judicial Committee of the Privy Council never was more effective. It wanted no supply of Judges, and to add two or three permanent Judges, with the rank of Privy Councillors, would be so improper that he should feel bound to give it his strongest opposition. Considering (he assistance contributed by his noble and learned Friend opposite (Lord Kingsdown), who was still able to be the great polar star of the Judicial Committee, such an addition was most unnecessary.
§ LORD CRANWORTH
said, that he did not think his noble and learned Friend (Lord Chelmsford) need feel any regret that he had brought the subject under the attention of their Lordships, because the more it was considered and discussed, the more the apparent defects of the Court could be discussed and remedied. The very circumstance that the business of the Divorce Court was increasing beyond what was originally anticipated, proved only that the want of it was severely felt throughout the country by a class of persons who, but for its institution, would have no redress for an intolerable grievance. For his own part, he did not think he could be charged with having taken an impolitic course in not having, when he introduced the Bill under the operation of which the 783 Divorce Court was established, provided for the discharge of the business which came before it a more enlarged judicial strength, inasmuch as, it was impossible to predict what the extent of that business might he, and very easy to add to the number of Judges if such a proceeding should be deemed expedient; while it would be found by no means quite so easy to dispense with the services of any person who had once been appointed to office in the Court. Whether or not it might ultimately become necessary to add to the permanent judicial staff of the Court was a question with respect to which there were, he concurred with his noble and learned Friend on the woolsack in thinking, no adequate materials for forming a sound judgment; and the point was one, he might add, on which no one was in a better position to pronounce what was likely to be a correct opinion than the learned Judge who at present presided over the Court with such distinguished ability. He might, before he resumed his seat, be permitted to suggest to the noble and learned Lord on the woolsack the adoption of a course of procedure, by having recourse to which the occurrence of that collusion of which so much had been said might be, if not altogether prevented, at all events rendered more difficult. The course of procedure to which he alluded was one which was very well known in our courts of justice, and it was this—that the decree originally pronounced in a suit should, in legal phraseology, be a decree nisi—that was to say, a decree which should be effectual, unless after the lapse of a certain time—six months, for instance—cause should be shown to the Court why the contrary should be the case. If such a decree were granted in the first instance, and a rule of court were established providing for its publication in the newspapers, and for otherwise giving it publicity, the probability was that it would be brought under the notice of all those persons who were cognizant of the circumstances of the matter in dispute. If, moreover, notice were issued to the effect that any person who thought proper to act upon the information furnished by the decree might, if he chose, communicate to an officer of the Court any circumstances connected with the suit which might have come to his knowledge, collusion would by that means be rendered more difficult, while the course taken to secure that end would be much less open to objection than that preliminary inquiry which had been recom- 784 mended. He might also suggest that the judicial strength of the Court might be increased by enabling the Judge Ordinary to grant divorces a vinculo without being bound to call upon the other Judges to assist him in forming a Full Court. He was, however, of opinion, that it would be better to refer the whole matter to a Select Committee before any permanent legislation was adopted with respect to it.
said, it was a mistake to suppose that he had advocated the institution of a preliminary inquiry under the auspices of the Attorney General. What he had said on the subject was that it was desirable that the Attorney General should, as far as it was feasible, attend in Court and watch the proceedings, and so gather from the various circumstances which must there come under his knowledge that information which would enable him to judge whether collusion had or had not taken place. Their Lordships were well aware that suits for divorce had more than once been stopped in that House simply owing to the fact that one Peer had heard in the course of conversation from another certain details which had led to the conclusion that the suit was one which ought not to be allowed to proceed.
§ LORD REDESDALE
said, he adhered to the opinion he had already more than once expressed with regard to the policy of the present law. One of the advantages which was proposed by the constitution of the Court was that this House should be relieved from the duty of hearing these unpleasant cases. But that, unfortunately, had not been the result; for their Lordships had this year been obliged to hear one case from India, and were still open to try future cases from that country, from the Colonies, and from Ireland. Now, he did not see why the newly constituted Court should not take cognizance of all these cases.
§ THE LORD CHANCELLOR
said, it had been decided that any subject of the Queen domiciled in England might sue in the new Court for a divorce, though the marriage might have been solemnized and the adultery committed in a foreign country. The Court had not been called on to deal with any Indian case. He was not aware whether any objection had been made to the introduction of a Bill into that House to dissolve a marriage, but it was in their Lordships' discretion to refer such a case to the Divorce Court.
§ LORD REDESDALE
was glad to hear 785 that that was the case, but he regretted to say that it was not so with regard to parties who resided in Ireland, for their Lordships might still have these cases brought before them. When the Bill of last Session was passing through this House he felt it to be his duty to propose a clause enabling parties from Ireland to apply for advice in the new Court, and that clause met with the approval of the Lord Chancellor, and also of the noble and learned Lord who had charge of the Bill; but it was struck out in the House of Commons, in consequence of an engagement having been entered into that the Amendment should not be pressed. He trusted that in the Bill which the noble and learned Lord on the woolsack proposed to introduce power would be given to allow parties from Ireland who sued for a divorce to go to the new Court instead of coming to their Lordships' House.
THE EARL OF WICKLOW
remembered that the clause referred to by his noble Friend had been discussed, and had met the approbation of their Lordships last Session, and up to that moment he had been under the impression it had passed the other House, and was now the law of the land. He thought it was most desirable that a measure of this kind should be extended to Ireland, and he therefore trusted his noble and learned Friend would take the matter into his consideration in any measure he intended to introduce on the subject. At the same time he thought it would be far better that the Irish public should be allowed to come into the English Divorce Court than that there should be a separate Court erected for themselves in Ireland.
§ THE LORD CHANCELLOR
said, if he were to introduce any measure on this subject he would be most happy to adopt the suggestion of the noble Earl; and so far as he was concerned he would be most happy to throw open the doors of the Court to all persons domiciled in the United Kingdom.