HL Deb 11 March 1861 vol 161 cc1688-94
THE LORD CHANCELLOR,

in moving for a Select Committee to consider the Law respecting the Parties who are entitled or ought to be entitled to sue in the Divorce Court in England and in the Court of Session in Scotland for a Dissolution of Marriage, said he had no intention of entering at present into the constitution of the Divorce Court, or how far additional judicial assistance was at present required. An Act was passed last Session which would expire in July 1862, and by that time it would be seen how far it would be necessary to add to the judicial strength of the Court. At present he would only express his belief that if it had not been for the long Shedden case, Sir Cresswell Cresswell would have gone a long way towards clearing off the arrears. What he wished now to bring before the House was the important subject of what parties were entitled, or ought to be entitled, to sue in the Court. Until very recently marriage was considered indissoluble in this country—that was, no judicial tribunal could dissolve it—but, practically speaking, any person who was sufficiently wealthy might obtain an Act of the Legislature to dissolve his marriage, having first gone through the preliminaries of bringing an action for crim. con. in the common law Courts, and obtained a divorce a mensâ, et thoro in the Ecclesiastical Courts. Having done these things, he might then get a Bill passed through both Houses of Parliament, which must lastly receive the Royal Assent. This generally cost from £1,000 to £1,500. Those who were not wealthy enough had no remedy. A Commission was issued of which he had the honour to be the head. The Committee took great pains to inquire into the subject, and by the assistance of its able Secretary, Mr. Fraser Macqueen, who might be said to have devoted himself to this subject a Report was produced, which recommended that divorce should be entirely withdrawn from the Ecclesiastical Courts, and that there should be a civil tribunal which should dissolve marriages for the cause of adultery. Their intention was that this Court should be open to England and all the dependencies of the English Crown. The law at present existing in Scotland was to be left untouched, and a Court similar to that in England was to be established in Ireland. In 1857 a Bill was passed establishing a Court for England; but, unfortunately, all attempts to extend the change to Ireland had as yet been unsuccessful. The proposal to establish a Divorce Court in Ireland excited great alarm there, and it was then proposed to allow Irishmen to sue in the English Court. A measure for that purpose he himself twice introduced, but it met with successful opposition on both occasions. He had never for a moment proposed to do anything that would encroach upon the rights of the Roman Catholics of Ireland; but the Irish Protestants were consequently left in a very unsatisfactory position, for they could only obtain a divorce by going through the old expensive and unsatisfactory process. It had been decided that Sir Cresswell Cresswell's Court had no jurisdiction in Irish cases. Their Lord- ships were of course acquainted with the case which had recently created so great excitement throughout the country — he meant the case of Mrs. Yelverton. Some time ago that lady sued before Sir Cresswell Cresswell for restitution of conjugal rights. The case was "Yelverton versus Yelverton," and the Judge-Ordinary then said in effect, "this is a Court for England, not for the United Kingdom, or for Great Britain. For the purpose of this jurisdiction Scotland and Ireland must be deemed foreign countries equally with France and Spain." Now, he thought it well deserved consideration whether, for the relief of our Protestant fellow-subjects in Ireland, there should not he established in that country a separate Court for divorce, or whether the advantages of the Court now sitting in Westminster Hall should not be opened to them. Then there was the case of Englishmen residing in India. Believing that the Act would apply to all the dependencies of the Crown, he had imagined that these persons would have been enabled to sue in the Divorce Court at home; but it was laid down by the most eminent authorities that if they had acquired what was called an Anglo-Indian domicile they could not procure a divorce in any English Court. Since 1857 two Divorce Bills had passed this House, and there could be no doubt that this and the other House still had jurisdiction; but the point respecting this Anglo-Indian domicile remained in abeyance. Then, again, the conflict of law between Scotland and England produced lamentable effects. The Scotch Judges insisted on the right to dissolve the marriage of any one who came within their jurisdiction; while the English Judges held that, unless the parties were domiciled in Scotland at the time of the dissolution of the marriage, the dissolution was a nullity. The first case was that of Lolley, who, having married an English wife, went across the border and procured a divorce in Scotland. If he had married again in Scotland, the second marriage would have been lawful, and his children legitimate; but, returning to England and marrying here, he was convicted for bigamy and sentenced to transportation, and his children of the second marriage were illegitimate. Thence a rose this strange conflict, that the children of the second wife were legitimate in Scotland and illegitimate in England. Such a conflict of authority led to most inconvenient results. He had, therefore, last Session proposed to enact that a divorce which was valid in any part of the United Kingdom should be valid all over the Empire; hut with this restriction, that in Scotland the right of dissolving marriage should not be exercised unless the parties were domiciled in Scotland. This restriction was necessary, or otherwise the door would be left open to endless confusion. He had the greatest possible respect for his brethren in Scotland, both the Judges and the advocates—no part of the world were there more enlightened men and learned jurists; but on this subject be thought they entertained an erroneous opinion. Not only did they claim jurisdiction in respect of divorce over all persons after forty days' residence in Scotland, hut ratione originis, rations delicti, and ratione citationis. Such claims were incompatible with the laws of independent nations. Story, the great American jurist, laid it down that a jurisdiction to dissolve a marriage depended on the domicile. Yet in "Tollemache v. Tollemache," where there had been a Scotch divorce the parties were divorced again in England. He was anxious that there should be harmony of legislation on this subject. The Scotch Judges had a notion that the English Courts wanted to encroach upon their jurisdiction, and to give much greater jurisdiction to the Courts at Westminster, than to the Court and Session at Edinburgh. He denied the existence of any such wish, his object being that in both countries the jurisdiction respecting divorce should rest on exactly the same principles. He should be perfectly ready, if necessary, to fix on one period of time—say one or two years —and to provide that if there had been during that time a bonâ fide matrimonial residence either in England or in Scotland, the respective Courts should have power to dissolve the marriage. He should have been prepared to introduce a measure at once dealing with the whole subject, but thought it would be more discreet to appoint a Committee of Inquiry, to consist of Peers both of England and Scotland, and he hoped that, as the result of their full investigation, some legislation would take place before the close of the Session. The noble and learned Lord then moved for the appointment of a Select Committee.

LORD CRANWORTH

said, he feared there would be a universal combination across the Border to defeat any interfeience with the marriage law of Scotland; but he was not entirely without hope that the Committee would have a good effect, as the Royal Commission undoubtedly had in securing the passing of the divorce law in this country. But with regard to the Scotch divorces there was another difficulty, which it was extremely hard to grapple with, but which he hoped they would get over. It was this: not only did the Scotch Courts claim a jurisdiction over all persons in that country, but they dissolved marriages on different grounds from those on which a dissolution could be decreed in this country. Such an anomaly on such an important subject was a discredit to both countries. No such distinction ought to exist; the question of who should be at liberty to sue in the Court here ought at once to be dealt with. He only pointed out these matters, as he did not think they ought to be too certain that they could achieve a satisfactory result. When the Bill of 1857 was introduced it applied exclusively to England; but he was asked whether he intended to extend it to Ireland, and he answered, "certainly not;" but he added that he intended to introduce a measure of the same kind for Ireland. A change of Government, however, prevented him from doing this; hut he believed that his noble and learned Friend opposite did make the attempt. [Lord CHELMSFORD: Not whilst I was in office!] There was a strong prejudice in Ireland against giving the Divorce Court in England jurisdiction over cases arising in Ireland, though he never could understand the ground of the feeling; for they had now to come to Parliament for a divorce, and the only effect of allowing them to go to the Divorce Court would be to cheapen the proceedings. He himself could see no rational ground why all Her Majesty's subjects should not be enabled to receive the benefits of Sir Cresswell Cresswell's Court, if their misfortunes necessitated such proceedings. The administration of the Court under that learned Judge had given universal satisfaction. He hoped that the proposed Committee would not consist of lawyers only, but that the Members would be so chosen, especially in reference to the localities with which they were connected, as to give universal satisfaction.

LORD MONTEAGLE

said, that there was a strong feeling in Ireland against the extension of the existing law of divorce, or of the Divorce Court in any shape, to that country. An attempt of a similar kind had been made more than once on former occasions, but he rejoiced to think that it had failed, though recommended on the high authority of the two last Lord Chancellors (Lord Cran worth and Lord Chelmsford). Nor was there any danger that this decided opposition both of the Irish people and their representatives should now be withdrawn. There was more unanimity against it than he ever remembered upon any other subject; and he thought it would be found not less difficult to carry such a hateful proposal now than when it was first introduced. The manners and the morals of that country did not cause any necessity for such a measure. Liberals any Conservatives, Whig and Tory secretaries, and ex-secretaries all combined in opposition and the measure was justly abandoned. If the Committee were moved for simply to collect information he had no objection whatever. He warned his countrymen to be prepared for resistance, he would take an early opportunity of moving for a Return of the number of divorce cases which had come before Parliament from that part of the kingdom. He denied altogether that the English experiment had been successful. He trusted that their Lordships would recollect the peculiar circumstances under which the Bill of 1857 was passed. There was a strong feeling on the part of many against the Bill as a whole; there was a strong feeling on the part of many others against some portions of the Bill; but there was an extraordinary union between those who promoted the Bill and those who suggested Amendments with a view to its rejection; he believed some Amendments were suggested for the purpose of making the Bill so repulsive as to ensure its defeat. This did not originate with his noble Friend Lord Cranworth. He recollected that the measure was proposed by him as a very simple one, as one not intended to alter the law of divorce, but only to improve the tribunal before which such cases were tried, and to put an end to those somewhat discreditable scenes their Lordships too often witnessed at the bar of that House. But when the Bill came to be considered in "another place" the outline of the measure which had been drawn by his noble and learned Friend was greatly extended, and their Lordships were then called on to consider not merely the tribunal but fatally to multiply also the causes of divorce. To what extent this led to an increased number of applications for divorce he was not yet able to state, but there was, undeniably, a continuation of many of the evils for which the Divorce Bill was proposed as a remedy. For instance, it had been urged as a strong ground in favour of the existing Divorce Bill that great harm was done to morality under the former system by the publication of the details of proceedings in crim. con. actions, but he thought no reader of the journals could venture to assert that public morality had gained by the change. He trusted that the Committee would be fairly constituted, and witnesses impartially called, and he then felt confident that he might trust the matter in the hands of his noble and learned Friend.

THE EARL OF WICKLOW

said, it was quite true that there had always been opposition against the extension of such a measure as that referred to to Ireland; but the truth was, that whenever the matter was discussed in that House, the noble Lord (Lord Monteagle), and he alone, raised the opposition. Every Peer in the House who was connected with Ireland was in favour of the proposition except the noble Lord. The noble Lord, no doubt, was influenced by the consideration that Ireland was a Roman Catholic country, and wished to avoid giving offence to the religious feelings and prejudices of the community; but he should bear in mind that the Roman Catholics were not the only persons in Ireland, and that their prejudices ought not to be allowed to deprive the Protestants of Ireland of the benefit of the Act which had been passed in regard to England.

Motion agreed to.

And on Friday following the Lords following were named of the Select Committee:—