HL Deb 21 July 1859 vol 155 cc141-50

Order of the Day for the Second Reading read.


, in moving the second reading of this Bill, said, the measure affected what might be considered the most important tribunal in this country, for its decisions bore especially upon the purity, and morality, and happiness of the homes of England. The Legislature had recently made a great alteration in the law as regarded the marriage tie. For 150 years, every man who was able to afford the expense of carrying a Bill through Parliament, if he could prove that adultery had been committed by his wife, was, he might say, entitled to a dissolution of marriage; for in the absence of any misconduct on the part of the husband, such a Bill invariably passed. But in this state of things great injustice was done to the middle and lower classes; for though they laboured under the same grievance, and had the same legal rights, they had no practical remedy. Notwithstanding the adultery of the wife, though accompanied by the grossest misconduct—though she might be living with another man, or even have contracted another marriage, the marriage tie remained unbroken; and the consequence very frequently was that the husband, thus deserted by his wife, made another marriage, became guilty of bigamy, and was liable to be transported. Their Lordships, in legislating on this subject, came to the resolution that when there had been adultery on the part of the wife, or on the part of the husband with certain aggravations, the Divorce Court which was at the same time established should have power to declare that the marriage should no longer continue. He believed that that law and that Court had worked most beneficially. The objection had been raised, that those who had hitherto resorted to it chiefly belonged to the lower orders; but that, in his opinion, proved its beneficial effects, because it was with them the grievance existed, and it was for them the remedy was mainly intended. Some amendments had, however, become necessary, in order to render the Court more efficient. In the first place, the judicial strength of the Court was not competent to do all the business that was brought before it. It had been suggested that the most obvious remedy for this was to appoint new Judges, to be employed exclusively in this Court. It might possibly become necessary to have recourse to this remedy; but, in the meantime, he thought it would be premature. To make new Judges without necessity was a great evil, and they ought not to make more without strong proof that they were called for. He had had the honour to sit several times in this Court, and he could assure their Lordships that the great majority of cases which he had to try were not of recent origin, some of them extending as far back as fifteen or twenty years, when no remedy could be obtained. They could not yet say what would be the amount of steady business in the Court. That being the case, he proposed that, instead of appointing new Judges, all the Judges of the Superior Courts in Westminster Hall should become Judges in this Court, and act in it according to rotation. As the Court was originally constituted there were only eight Judges; but he proposed that all the puisne Judges should act, which would raise the number to seventeen. It had been suggested that all the ex-Chancellors—of whom he knew not how soon he might be one—should also devote themselves to the official business of the Divorce Court; but he did not think there would be any propriety in adopting that suggestion, as they were fully occupied in attending to the judicial business of the House of Lords. Various valuable proposals had been made by noble and learned friends of his which referred rather to matter of procedure than of law, and he was of opinion that all these subjects would be better left to be dealt with at the discretion of the Judges by means of rules and regulations than by statutory enactment. Among these was the recommendation (which he was much inclined to favour) that the petition for a dissolution of marriage should contain a detailed statement of all that had taken place from the union of the parties to the time of its presentation. One clause had been introduced for the sake of public decency. In Scotland, in France, and he believed in all other countries, tribunals similar to this had power to sit with closed doors; but he understood that his right hon. Friend the Judge Ordinary was of opinion that he had no power to do so without the consent of the parties. He had, therefore, inserted in this Bill a clause providing that, whenever the Court thought that the claims of decency required it, it might sit with closed doors. At present the Court could not, subsequent to granting a decree of separation, make any order as to the custody or the management of the children. The only mode of having them cared for was by means of the expensive and dilatory process of making them wards in Chancery. He, therefore, proposed in this Bill to give the Court power from time to time to make any order with respect to the management of the children. The only other enactment was the result of the suggestion made by his noble and learned Friend (Lord Brougham), that in order to avoid the danger of collusion the Court should have power to call in the assistance of the Attorney General to represent the public. In accordance with that recommendation, he sought to provide by this Bill that the Attorney General should be served with a notice of every petition. He would thus have an opportunity of instituting inquiries, and, if he thought it necessary, of being present at the hearing. The Bill contained nothing with reference to Ireland. He understood that the Irish people would not receive favourably a provision enabling them, if they thought fit, to avail themselves of this Court; and he did not think that it would be wise to establish a similar Court in that country until the experiment had been thoroughly tried in England.

Moved, That the Bill be now read 2a


agreed with his noble and learned Friend as to the expediency of not confounding matters which were fit subjects to be dealt with by rules of Court with those which required to be dealt with by Parliamentary enactments. He agreed with his noble and learned Friend that the law and the Court had in great measure fulfilled the expectation of its advocates; and no time should be lost in making it as perfect as possible. He also entirely concurred with him as to the undesirability of creating additional permanent Judges for this Court. With regard to the prevention of collusion, he was of opinion that it was essential that in all cases of dissolution of marriage the party applying for the divorce should be examined, and that the other parties should be competent to be examined but not compelled.


said, he was not disposed to offer any opposition to the second reading of this Bill, though he did not think that it would be of particular advantage to the public, as it would not have any effect in relieving the Court from the difficulty it now experienced in finding Judges. That difficulty was attributable to the onerous duties which the Judges had to perform, and to their consequent inability to give their attention to this Court; but enlarging the area of choice so as to include all the Judges as well as the chiefs and the senior puisnes, would give no relief, since there was no particular difference in the pressure of their engagements. The Court ought to be established on a separate and independent basis; for it was very injurious to its efficiency to rely upon Judges not connected in any way with it, not interested in its proceedings, and taken away from their own Courts for the discharge of a mere temporary duty. He was fully aware of the difficulty of obtaining a full Court, for when he was Lord Chancellor he was applied to to assist the Judge Ordinary in making a full Court, most of the Judges being so much occupied by their own Courts that they could not attend the Divorce Court without neglecting other duties. The object of the present Bill was to obtain a full Court by extending the power of sitting to all the puisne Judges of the Common Law Courts. One disadvantage of this provision would be that the puisne Judges of other Courts would he the superiors of the Judge Ordinary in his own Court; and that learned personage, who was the very life and soul of the Court, would be reduced to a cipher. He must be permitted to say that the provision to pre-vent collusion would be a complete failure. The noble and learned Lord on the woolsack, who had been Attorney General for many years, must know that it was quite impossible for the Attorney General now to go through all the duties imposed upon him, much less to undertake a new one. How was the Attorney General to ascertain whether there was collusion or not? Was he to summon the parties—or to examine the witnesses and enter into a complete judicial proceeding? If it was answered that the parties must bear the expense, he would ask, which party? Supposing there turned out to be no collusion, it would be very hard to charge the parties with the expense of this preliminary proceeding, and much harder to charge the public. In the case of patents the public were interested in a patent not being unnecessarily extended, and it was quite right therefore that the Attorney General should watch each case on their behalf; but the public had no such interest in these divorce cases, they were only interested in the detection of collusion as it affected public morality. He thought that any attempt to appoint an officer or establish a tribunal to undertake the difficult task of detecting collusion in matters of this nature would be a total failure. He agreed in the propriety of the provisions of the Bill, and felt it to be an improvement on the existing system.


thought it had become perfectly clear that it was necessary to give some assistance to the present constitution of the Court, which did not proceed with that celerity which might be looked for. He very much doubted, however, whether what was now proposed would be sufficient for the purpose; but he entirely concurred with his noble and learned Friend on the woolsack that an endeavour ought to be made to supply the defect without the creation of new Judges. His noble and learned Friend had taken a very proper course in enlarging the area from which the Court might call for judicial aid. He agreed with the noble and learned Lord (Lord Chelmsford) that the clause as to the Attorney General, he believed, would have no effect but that of creating unnecessary expense. The best mode of preventing collusion, he thought, would be to make in the first instance a decree nisi, and then to issue notices to the neighbourhood in which the parties lived, so as to afford any person who was aware of any collusion between the parties an opportunity of coming before the Court before a final decree was pronounced.


said he thought it of the greatest importance to give to the Court a new Judge or new Judges, so as to make it a distinct and independent tribunal. Such an arrangement would manifestly contribute to ensure uniformity in the decisions of the Court, and more strictness in its mode of procedure. The frequent change in the Judges which was proposed in the present measure would lead to great laxity in ruling the principle on which divorces should be granted. With regard to the provisions for the Court sitting foribus clausis, the noble and learned Lord on the woolsack had stated that the object of that clause was to enable the Court to sit with closed doors whenever decency might appear to require it. He (Lord Redesdale) objected to the principle, but if it was to be admitted, there were other cases in which he thought the Court should have the power of sitting with closed doors. Where a judicial separation was sought for it might be sometimes advantageous, not from any feeling of decency, but from the fact that the parties might afterwards be reconciled, that the grounds on which a judicial separation was asked for should not be stated in public. He never heard that it was necessary in the case of actions for damages as a preliminary to a divorce that the Court should sit with closed doors. The suggestion that this Court should sit with closed doors originated perhaps in the belief that the public were becoming disgusted with the working of the Court. He thought that the working of the Court should be fully tested, in order that a sound judgment might be formed upon the Act by which it was established. He was sure that there was in the minds of a large number of persons in this country a very strong doubt as to the advantages arising from the establishment of this Court, and he thought it was extremely desirable that as far as possible the proceedings with regard to divorce a mensâ at there should be carried on in the most public manner. Their Lordships had by this Court been relieved from the disagreeable duty of dealing with the divorce cases in England, and there was no reason why they should not also be relieved from the cases of divorce that came from Ireland. If it was not expedient to establish a Divorce Court in Ireland, why should not this Court, instead of their Lordships, deal with the Irish cases of divorce? He hoped their Lordships would not object to the insertion of a clause in the Bill to the same effect as that of last year, extending the jurisdiction of the Court to cases from Ireland.


very much regretted that the noble and learned Lord was not disposed to allow Irishmen to have the benefit of this Court. In his opinion their Lordships ought not to allow the present anomalous state of the law to continue, but they ought to abolish it, either by introducing a bill for Ireland or by inserting a clause in this Bill to enable the Irish people to resort to the English Court. The great majority of the people of Ireland were Roman Catholic, and they would prefer having no special Act for Ireland. On the other hand, the Protestants of that country ought to be placed on the same footing as their brethren on this side of the Channel. Why should there be a union of the two countries if, Session after Session, Bills were introduced which applied only to one portion of the empire? He believed that one of the best provisions in the present Act was that which directed that full publicity should be given to all the proceedings of the Court, for he believed that the knowledge of this publicity would have a salutary influence in checking those deeds which brought persons within the operation of the Court. He was no advocate for any measure of divorce, for he believed it was in itself highly objectionable, and against the law of Christianity; but, as divorce was now the law of the land, he should be glad to see that law made to work in the best manner possible.


thought that though the Court would he useless to the majority of the population of Ireland, the Catholic Church not admitting a dissolution of marriage, it would be fair to extend to the Protestants of Ireland the same legal remedy that had been provided in England. He therefore called upon the Government to say whether they would bring in a special Bill for Ireland, or insert a sufficient clause in this Bill. He believed that the clause in the Bill for the prevention of collusion would fail. The probability was that the Attorney General would appoint some barrister specially to attend to the business. There would be a certain amount of fees to be paid to the Attorney General, and to his assistant, and that would be the whole result. When it was considered that the object of the measure was to prevent a crying abuse—namely, that the power of separating from an adulterous woman should be confined to the rich, and not extend to the middle and lower classes—they ought jealously to guard against any alteration of the law which would have the effect of increasing the expense; but if petitions for divorce were in the first instance to be laid before the Attorney General, the effect would certainly be a great increase of cost. He cordially desired to prevent collusion, but he hoped the noble and learned Lord on the woolsack would reconsider the matter, seeing that the clause was not likely to effect the object, and must lead to a considerable increase of expense.


said that with regard to the extension of the provisions of this measure to Ireland, the noble Earl who had just sat down had stated the real difficulty, which arose out of the religious feeling of the majority of the people of Ireland; and the minority should not require any alteration in the law if it could be avoided. But unfortunately the House was in this condition, that they must extend the law to Ireland; and he would advise the and noble learned Lord on the woolsack not to create a new tribunal, but as quietly as possible to allow the few cases of divorce in Ireland to come to the Court in this country. One reason why it was imperative on Parliament to take this matter up was, that the scandal of an action for criminal conversation was still retained in Ireland, and as the Standing Orders of that House still required such an action before a divorce Bill could be obtained, the extending of the jurisdiction of the new Court to Ireland was the only way to prevent the continuance of that action.


had always thought that the establishment of the Divorce Court would not produce any great public moral good, and he objected to any system which facilitated the dissolution of the marriage tie. But as the measure was now law, he thought it was something like injustice not to give the Protestants in Ireland the same privileges as those of England, and he could not understand why a clause should not be introduced into this Bill to allow Irish suitors to come to the Court in this country. He agreed that it was not advisable to establish such a Court in Ireland, where the Roman Catholics, on special religious grounds, consider marriage altogether indissoluble. Although some good might perhaps have arisen from the Divorce Act, it was by no means unaccompanied with evil. He was doubtful as to proceeding with the hearing of certain causes with closed doors, which was contrary to the usual proceedings in the administration of British justice; but at the same time he admitted that there not un-frequently occurred cases in which it would be better, on the ground of public morality, if they were not made public.


deemed it a defect in the present law that the Full Court which had to pronounce on the dissolution of the marriage did not hear the previous evidence. In reference to the Attorney General interfering in the matter, there was the objection that that course would increase the expense when it was the intention to render the law accessible to all persons.


, in reply said, he was glad to find that none of their Lordships had thought it necessary to oppose the second reading of the Bill. He had no objection that Irish cases of divorce should be brought under the cognizance of the English Court, if it were thought desirable to adopt that course:—indeed he had prepared a clause giving the inhabitants of Ireland access to this Court; but, on showing it to some of his friends, they had warned him most strongly against introducing it, and told him that he would only raise a tempest which would overwhelm him, and that he would be in danger of losing his Bill. He would not therefore, propose a clause of that nature; but if any of their Lordships would assume the responsibility of doing so they would encounter no opposition on his part. His noble and learned Friend (Lord Brougham) had proposed that the co-respondent should be made a cempetent witness, and that he should be called and questioned as to whether he had been a party to any improper intimacy; but his experience had shown him that it was considered a point of honour for a man to shelter the partner of his guilt, and that consequently no faith whatever was to be placed on evidence of such a character. A case had once been tried before him in which it was sworn in the most positive manner, that no improper intimacy had taken place, and yet the evidence left no doubt whatever that there had been improper intimacy both before and after the marriage. The other noble and learned Lord (Lord Chelmsford) who had criticised the Bill with some severity, had proposed nothing, unless it were that the Judges of the Court should be permanent.


said, he had stated most distinctly that he had no fixed idea on the subject.


said, that this was after all the real difficulty. If the nine puisne Judges had been competent to sit no embarrassment whatever would have been experienced. It was not proposed that the Attorney General should be called in in every case, but simply where it was desirable, and that there he should proceed under certain rules and regulations. The expense attendant on this course would be very small, and he believed the money would be well expended even if it had to be paid out of the revenue of the State. He had never been more surprised than to hear objections raised to the power of this Court to sit with closed doors. That was a power inherent in every civil Court and which was occasionally exercised with great advantage in particular cases, where it was considered that public decency would be shocked by publicity. Parties at each side often consented to a trial with closed doors, and he himself had sat in a case where that course was adopted about three months ago. All that was proposed by the Bill was that the Court should, on its own responsibility have the power, if it thought right to exercise it, of sitting with closed doors in cases where it was considered desirable; and he asked whether public morality had not been sufficiently scandalized by the reports in the public papers to justify such a proceeding. He should be most ready to attend to any amendments that might be submitted to his notice before the Bill was considered in Committee.

Motion agreed to.

Bill read 2a accordingly and committed to a Committee of the whole House on Thursday next.