Lords Sitting of 28 July 1859

MINUTES.
PUBLIC BILLS.—1a Fishing Vessels passing the Nore; Boundaries (Ireland).
2a Diplomatic Pensions; Consolidated Fund (£7,000,000); Cambridge University Commission (Continuance); Criminal Justice Middlesex (Assistant Judge).
3a Chief Superintendent (China).

DIVORCE COURT BILL.—COMMITTEE.
THE LORD CHANCELLORsaid, that in moving that the House resolve itself into a Committee on this Bill, he thought it right that he should briefly indicate the Amendments he meant to propose in the measure. The first would enable the Judge Ordinary to take precedence in the Court immediately after the Lord Chief Baron. He would not oppose any clause, though he should not move it himself, enabling persons domiciled out of the kingdom, in India or any of the Colonies, to petition the Court to dissolve marriage, instead of their having, as now, to resort to their Lordships' House for a legislative measure for that purpose. He would propose a clause giving power to the Court to sit with closed doors; but, in order to obviate an objection that had been made that the Court might arbitrarily close its doors to screen aristocratic delinquents, he would so word the clause as to confine the exclusion of the public from the Court to cases where public decency required it. Again, instead of enacting that every petition should be referred to the Attorney General, he should propose that the Court should have the power of invoking the assistance of the Attorney General whenever they thought it desirable.
Motion agreed to.
House in Committee.
Clause 1 (All the Judges of the Queen's Bench, Common Pleas, and Exchequer, to be Judges of the Court for Divorce) agreed to.
Clause 2 (Judge Ordinary and Eight of the other Judges to appoint the Sittings of the Full Court) agreed to.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to insert after Clause 2 a clause providing that the Judge Ordinary shall have precedence in the said Court next after the Lord Chief Baron of Her Majesty's Court of Exchequer.
Clause agreed to.
THE EARL OF WICKLOW THE EARL OF WICKLOW moved the insertion of a clause enacting that any person domiciled in any part of the United Kingdom, except Scotland, may petition the Court for a dissolution of marriage. The noble Earl said that the object of his Motion was to extend the operation of the Bill to Ireland. In a Roman Catholic country, where a great majority of the people had an insuperable religious objection to divorce it would be most inexpedient to establish a Court for that especial purpose; and it appeared to him that the best method of enabling those persons in Ireland who had no such religious scruples to obtain a divorce was by enabling them to come to the Court established here. Another objection occurred to him. They had now constituted all the Judges of the English Courts members of the English Court for Divorce: but in Ireland, many of the Judges were Roman Catholics, and they would of course have the same objection as the priests themselves to agree in pronouncing divorces.
LORD MONTEAGLEsaid, the opinion of almost every person, whether Protestant or Roman Catholic, he had conversed with on this subject in Ireland was against the extension of the Bill to Ireland; nor had the people of that country, as the law had heretofore stood, appealed in many instances to their Lordships' House. There were no petitions in favour of that country being included in the Bill; there were no complaints of the present state of the law, and the number of divorce cases from Ireland was so few that no necessity existed for the proposed change. If a change of this kind was proposed to be made, the people of Ireland ought to have had notice of it; but no notice had been given, and it was to be observed that Scotland was omitted from the Bill. He opposed the introduction of the clause.
LORD BROUGHAMsaid, the reason why Scotland was omitted was, that there was already in that country a Court for granting divorces; but in Ireland there was no Divorce Court whatever.
EARL ST. GERMANSsaid, the introduction of the clause would not affect the general marriage law of Ireland. The only effect of it would be to place the law on the same footing in both countries in so far as regarded the granting of divorces. It could in no manner affect the feelings and prejudices of the Irish people, for it was not compulsory; it was merely permissive to those who chose to take advantage of it.
LORD CRANWORTHreminded the noble Lord (Lord Monteagle) that at present a person in Ireland seeking a divorce was compelled to prosecute for damages in the Irish Courts, and then to come to the Legislature at great expense to get the marriage annulled; whereas the principle Parliament had adopted was to get rid of this cumbrous and discreditable machinery; and the clause now proposed would enable him to come over and obtain a divorce in the Imperial Court.
THE DUKE OF LEINSTERsaid, that the Bill was not intended in any way to affect the Roman Catholics; but it was undoubtedly hard on Protestants and Protestant Dissenters in Ireland that they should have to go through all the horrid forms of an action of crim con. to enable them to sue at the bar of their Lordships' House for the simple remedy which was administered by the Divorce Court in England, He should gladly therefore support the clause.
THE EARL OF DONOUGHMOREsaid, it had been urged by the noble Lord (Lord Monteagle) in opposition to this Bill that no petitions in its favour had been presented; but it was precisely one of those matters in which no man liked to be complainant in his own case, and the House would therefore have to wait for a long time if they did not legislate until they received many petitions on the subject, Although he was firmly persuaded of the general purity of marriage life in Ireland, he thought it was but fair that when persons there were unfortunately under the necessity of seeking for a dissolution of marriage they should have the power of doing so. He had been informed by one of the advocates in the existing Divorce Court that there were at this moment upon the files of that Court three petitions from

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Ireland. Those were cases in which parties had been married and domiciled in that country, and it was there likewise that the alleged adultery had taken place; but as the law stood it was exceedingly doubtful whether any relief could be afforded to them in the English Divorce Court. In order, however, to bring themselves within its powers they had come over to this country, taken houses, and paid rates, in order to obtain such a domicile as would enable them to take advantage of the English Divorce Court. The question was one of considerable difficulty, and he did not pretend to give an opinion with regard to it; but it was certainly one as to which considerable uncertainty existed. Therefore, while disclaiming for himself and the other Members from Ireland of their Lordships' House any intention to interfere with the Roman Catholics, they certainly considered that equal facilities with those which were extended to English Protestants should be given to them.
VISCOUNT DUNGANNONsaid, it did appear a hardship that the Protestant population of Ireland should be condemned to increased expense, by being debarred from the advantage of the Court, if they wished to obtain a dissolution of marriage. He did not see how any party in Ireland could be offended by this clause; nor could he imagine any reason for refusing to Irishmen the relief which was given to Englishmen.
THE LORD CHANCELLORstated that he had been so fully sensible of the force of the argument in favour of this proposition that in the Bill as originally framed he had introduced a clause extending the operation of the Divorce Act to Ireland; but he had been so frightened by the representations made to him by the noble Lord on the cross benches (Lord Monteagle) and others that he had been led to withdraw it. Now, however, that all the noble Lords connected with Ireland, with one exception, called with one voice for such a clause, he was merely returning to his original opinion in consenting to its reintroduction. At the same time he thought that the principle, if extended to Ireland, could not rest there, but should be extended to India, to the Colonies, and other dependencies of the Empire. He would therefore suggest the insertion in the clause of words to that effect, retaining however the exemption of Scotland from the provisions of the Bill.
Agreed to.
Clause, as amended, to stand part of the Bill.
Clause 4, (Court may sit with closed doors).
THE LORD CHANCELLORproposed the insertion of words limiting this power to cases in which the Judges should think that its exercise was necessary "for the sake of public decency."
Amendment agreed to.
On the Question that the Clause stand part of the Bill.
LORD STANLEY OF ALDERLEYadmitted that a great deal of evidence came before this Court which it was very desirable should not be published; but the principle which it was proposed to introduce by this clause—the power of enabling a court of justice to try cases with closed doors—was a novel, and, he thought, an evil one. Many cases came before Courts of assize and common law which involved details quite as disgusting as any of those in the Divorce Court, and the arguments in favour of secrecy would therefore be quite as strong in regard to those Courts as with reference to this. He recommended their Lordships to pause before they assented to this provision.
THE EARL OF DONOUGHMORElikewise opposed the clause on the ground that publicity was essentially necessary to secure confidence in the administration of justice. When under the previous state of the law cases of a similar description were tried in their Lordships' House their doors were never closed.
LORD CRANWORTHsaid, the Courts frequently assumed their power of excluding the public, and hearing the cause foribus clausis, where it seemed to be desirable for the sake of public morality, and the chance of a Judge closing the doors when public decency did not require it was so small that it could not be compared with the advantages which would be derived from adopting this provision. He thought it for the public interest that the public should be shut out from hearing these shocking disclosures.
VISCOUNT DUNGANNONthought that, if it was sometimes found necessary in the Common Law Courts to hear particular causes with the public excluded, some power should be especially given to this Court to do so.
LORD BROUGHAMpointed out that their Lordships possessed the power which it was proposed to confer on the Court. Whenever a Divorce Bill was in progress

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they might any time order all strangers to withdraw.
THE EARL OF WICKLOWthought that if Parliament passed the Bill with this clause it would he estahlishing a precedent of a most dangerous character, and would make the procedure of the Divorce Court an exception to that of all other courts of law. He thought that the publicity insured by the admission of the public to the hearing of these cases was of itself productive of benefit, for the very apprehension of publicity tended very often to deter persons from bringing cases forward where no fear of the costs would do so. It was acknowledged throughout the whole country that publicity in the proceedings of law courts was of the greatest possible advantage to the public, and he had sufficient confidence in the press of this country that it would not publish details which might be injurious to morals?
THE EARL OF POWISreminded the noble and learned Lord opposite (Lord Brougham) that it had always been the practice of the House to print the evidence of Divorce Bills, so that it would have been of no use to exclude strangers while they were being discussed. All the evils incident on the present practice would be met by the ordinary jurisdiction of the Judges, and there was no reason, therefore, for making an exception in this case.
THE LORD CHANCELLORbelieved this was the only civilized country in the world in which the judicial tribunals had not the power of saying they would sit with closed doors, and his object in giving the Divorce Court that power was to prevent the publication of those shocking scenes of depravity too common in cases brought before that tribunal. He asked where would be the danger in giving it such an option?
LORD STANLEY OF ALDERLEYsaid, he had always understood that the great superiority of our courts lay in the complete publicity with which their proceedings were conducted, and he believed it would be found, where corruption had crept into the administration of justice in foreign countries, that it was in cases where the Judges had dispensed law in private. He felt so strong a repugnance to the Motion under consideration that he would divide the Committee upon it.
On Question, That the said Clause stand part of the Bill?.
Contents 26; Not-Contents 9: Majority 17.

CONTENTS.

Campbell, L. (L. Chancellor)

Brodrick, L. (V. Middleton).

Brougham and Vaux, L.

Cleveland, D.

Camoys, L. [Teller].

Newcastle, D.

Cranworth, L.

De Tabley, L.

Lansdowne, M.

Elgin, L. (E. Elgin and Kincardine).

Amherst, E.

Clarendon, E.

Foley, L. [Teller].

Ducie, E.

Keane, L.

Ripon, E.

Llanover, L.

Rosslyn, E.

Sundridge, L. (D. Argyll)

Saint Germans, E.

Teynham, L.

Wensleydale, L.

Dungannon, V.

Wodehouse, L.

Sydney, V.

Wynford, L.

NOT-CONTENTS.

Chichester, E.

Congleton, L.

Powis, E.

Monteagle of Brandon, L.

Wicklow, E.

Hutchinson, V. (E. Donoughmore) [Teller]

Redesdale, L.

Stanley of Alderley, L. [Teller].

Leinster, V. (D. Leinster).

On Clause 5, (Petition for the Dissolution of Marriage to be referred to the Attorney General),
THE LORD CHANCELLORsaid, the object of this clause was to remove the danger, which at the present time existed to some extent, of collusive divorces. It had been suggested that the assistance of the Attorney General might be useful in preventing fraud in all cases where suspicion arose. This clause would therefore empower the Court to call in the Attorney General either before or after the hearing, or at any time before the final decree, to sift the matter under certain rules and regulations to be laid down by the Court.
LORD CRANWORTHthought the clause a good one. It was extremely reasonable that the Court should have the power of referring cases in which collusion was suspected to the Attorney General; he might be made a party opposing the divorce, and there would be an adverse litigation in the case. He could not, however, agree with the Lord Chancellor that there was anything unreasonable in what he (Lord Cranworth) had proposed with the same object. It was not so necessary now, perhaps, as before the clause was amended, but it was not unreasonable. The collusion they had to guard against was that by which both parties to the suit would endeavour to keep from the knowledge of the Court any evidence that would prevent the divorce being decreed. How could this difficulty be met? His noble and learned Friend proposed that

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the Attorney General should be empowered to inquire into the matter when any case of suspicion arose, He approved of the suggestion so far as it went. But at the same time he did not think the proposition he had himself made at all unreason-able. There might be facts which neither the Divorce Court in the first instance, nor the Attorney General in the second, would he able to discover; but those facts would be known to many persons who would be willing to discover them to the Court if they were made aware of the decree likely to be pronounced in the case. What he had proposed, therefore, was, that the decree should not be an absolute one; and before it was made so, means should be taken to give it publicity among those likely to know why it should not be made; they would inform the Attorney General, and their evidence would put him in motion, and he would take such steps as he deemed best to prevent the Court being made an instrument of fraud.
LORD BROUGHAMsaid, he would like to know who, under these circumstances, was to put the Court in motion, and suggest to it the ground of fraud and collusion, on which it would refer the matter to the Attorney General in cases where no facts indicating a collusion appeared in the evidence. A decree Nisi had been suggested; and it was also suggested that, after that had been promulgated, any one might communicate with the Attorney General; but unfortunately, no one who was not before the Court could make any suggestion to it. When divorce cases were tried before the House of Lords there was nothing to prevent parties from making a suggestion to any individual Peer that was likely to discover the fact of there being collusion between the parties, and the fact could be brought out on the examination of the witnesses or by requiring further evidence. By one of these modes collusion would be proved and the Bill thrown out. This was impossible in the Court of Divorce; no one would make a suggestion to it; it would be an act of contempt. He hoped his noble and learned Friends would take this into consideration.
THE LORD CHANCELLORsaid, the Court could infer the collusion from the nature of the evidence; but if it did so, it did not at present possess the means of acting upon it; therefore the closer investigation by the Attorney General provided by this clause was necessary.
LORD BROUGHAMconsidered that the great source of collusion arose where three parties, the petitioner, the defendant, and the co defendant, were all in league, and took care that their counsel should not make any statement detrimental to them, or call witnesses calculated to injure their case; and he spoke from practical experience in their Lordships' House when he spoke of the suggestions he had alluded to. Supposing a near relation of the parties applying for a divorce was minded to prevent it, thinking either that he was pursuing a proper course, or desirous from peculiar interests either that the marriage should not be dissolved or that another should not be contracted—the relation in cases heard before the House of Lords, would come with suggestions to their Lordships, and open their eyes to the facts. He remembered two cases of the kind, and one in particular, from Ireland, where the divorce was rejected in consequence of suggestions that were made to their Lordships.
THE EARL OF DONOUGHMOREsaid, the clause as amended removed the objections he entertained to it, but he doubted whether it would have the effect the noble and learned Lord desired.
LORD WYNFORDthought it would be highly objectionable to refer divorce petitions to the Attorney General for previous inquiry. That functionary was constantly engaged in such important duties, that these petitions would be handed over to some subordinate or another. He should have been glad if some other officer had been selected who could have given his personal assistance to the Court in trying' the cases.
LORD WENSLEYDALEsaid, that his objections to the Bill as it originally stood were much diminished, but not altogether removed by the amended clause. Where the Attorney General was not made a party, no information as to collusion could be by him brought before the Court. To make the clause of use they should allow the Attorney General to receive information and bring it before the Court, although not served with any petition.
After a few remarks from Lord KINGS-DOWN, which were inaudible,
Clause, as amended, agreed to.
Further Amendment.
The Report thereof to be received on Monday next.

DIPLOMATIC PENSIONS BILL.

  SECOND READING.
  THE EARL OF CLARENDONsaid, that the object of the Bill, of which he rose to move the second reading, was to enable persons holding diplomatic pensions to sit in the other House of Parliament. Hitherto persons holding diplomatic pensions had been disqualified by the Act of 6th Anne from sitting in Parliament, and be hoped that it would be their Lordships' opinion that the Act, as regarded its application to retired diplomatists, was neither just nor useful, and that it ought to be repealed. It was not just that men who had passed a long period of their time in foreign countries in the service of the public should be debarred from rendering still further service to the country by sitting in the Legislature, and it was equally hard that if a constituency thought highly of a man's talent, or felt grateful to him for his diplomatic exertions, that they should not have the opportunity of electing such a man to represent them in Parliament if they thought fit. It was neither useful nor expedient that Parliament should be deprived of the knowledge or experience that such persons generally brought with them from foreign countries, and especially the information that they could furnish respecting them. Constitutionally there was no more reason why retired diplomatists should he debarred from sitting in Parliament than Admirals or Generals after they had retired from active service. There had been no opposition to the Bill in the Commons, and he hoped that no argument was necessary to induce their Lordships to give it their sanction. But if anything were wanted to show the necessity for such a Bill it was the operation of the present law in the case of the noble Viscount (Stratford de Redcliffe) whose pension was suspended while he sat in the House of Commons. His noble Friend now had a seat in their Lordships' House, but if he had not, and if he were not in a position to sacrifice the amount of his pension, the country could not have the benefit of his services and knowledge in the other House. He moved that the Bill be read a second time.
  VISCOUNT STRATFORD DE REDCLIFFEsaid, the reference which had been made to himself by his noble Friend who had moved the second reading of the Bill might perhaps excuse him for offering a few words upon the subject, and he would engage that they should be really few. It
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  was quite true, as stated by the noble Lord, that he was obliged to make the sacrifice of his diplomatic pension many years ago, when he bad the honour of a seat in the other House of Parliament—in short, it had been his lot to be a victim of the Act which it was now proposed to revise. It was natural that he should look into the question at that time, and, indeed, he had taken an opinion as to the real meaning of the Act. The consequence was that no doubt remained in his mind as to the sacrifice which it was necessary for him to make, and he did not hesitate to make it for public considerations which operated powerfully upon him at the time. He must in candour avow that he considered the Act as founded on a just consideration of the public interests when it was introduced in the early part, if he remembered right, of the last century. In those days there was greater laxity in the granting of pensions than could possibly take place under the present action of Parliament and the prevailing sentiments of Government. The terms of service were now so lengthened and regulated that there was no longer any hazard of the liberality of the public in rewarding services abroad being taken unfair advantage of. It seemed to him on the broad principle of justice that no individual should have the enjoyment of his civil privileges curtailed, except when the interest or convenience of the State imperiously required it. The moment, therefore, that a guard was no longer required for the protection of the public, whose representatives had already provided the requisite security, it became advisable that the diplomatic pensions with respect to the power of sitting in Parliament should be put on the same footing as allowances granted on retirement to other public servants. On these grounds, and with reference to the case so justly pointed out by the noble Earl of constituencies wishing to be represented by persons distinguished by their services abroad, and the experience thereby acquired, he hoped that their Lordships would receive and carry through in the same just and liberal spirit as had been shown in the other House of Parliament the Bill which was so properly assigned to the management of his noble Friend, whose official experience so well enabled him to deal with such a subject.
  LORD WODEHOUSEsaid, the Bill had the entire approval of his noble Friend the Secretary for Foreign Affairs, and express-

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  ed his belief that it was a measure every way worthy of their Lordships' support.
  Motion agreed to.
  Bill read 2a, and committed to a Committee of the whole House To-morrow.
  House adjourned at a quarter-past Seven o'clock till To-morrow, half-past Ten o'clock,