§ THE EARL OF WINCHILSEA
I beg to ask the Lord Chancellor a question, of which I have given him private notice—whether his attention has been called to statements by certain Magistrates that, in consequence of the decision in what is known as the Clitheroe abduction case, they will no longer make Separation Orders, or otherwise interfere for the protection of married women; whether the law as laid down in that case has really such an effect as those statements seem to import; and, if so, whether the Government will propose legislation on the subject?
§ THE LORD CHANCELLOR
In reply to the noble Lord's questions, I beg to say that I have not myself seen the statements of Magistrates which he mentions; and I should be very unwilling to think any such reports could be accurate, and that any Magistrates could have given utterance to the statements attributed to them. Nothing, to my mind, could be more inappropriate or inconsistent with the demeanour which 642 becomes persons in judicial positions than to make general statements beforehand as to their views on classes of cases which may come before them; and I should be reluctant to attribute to any Magistrate, on the authority of a newspaper only, a view of the law laid down in the case referred to so erroneous as almost to appear perverse. The Court of Appeal released, by their order, a person whom they held to be in unlawful custody. As to legislation, therefore, as the noble Lord sees, there is only one point to be dealt with—whether or not a man may imprison his wife. I am sure that the Government will not propose a Bill to enable a man to imprison his wife, and I should not myself personally be able to give such a measure my support. If they did bring in such a Bill, the facts published in the recent application for a habeas corpus would not, I think, be likely to assist them in passing it.
§ LORD ESHER
My Lords, as I was a party to the judgment, which seems to have been more misunderstood than any judgment I recollect, I, perhaps, may be excused from making an observation. It was urged before the Court of Appeal that by the law of England a husband may beat his wife with a stick no bigger than his thumb if she refuses to obey him, and that if a wife refused her husband conjugal rights, whatever that phrase may mean, which I have never been able to make out, he may imprison her until she restores him conjugal rights, or satisfies him that she will. All that the Court of Appeal decided was that a husband cannot by the law of England, if the wife objects, lawfully do either of those things. Those intelligent people who have declared that the judgment is wrong must be prepared to maintain the converse, namely, that if a wife disobeys her husband he may lawfully beat her; and if she refuses him a restitution of conjugal rights he may imprison her, as it was urged, in the cellar or in the cupboard, or, if the house is large, in the house by locking her in it and blocking the windows. I thought, and still think, that the law does not allow these things. The intelligent objectors say that by so holding we made a decree for the restitution of conjugal rights a farce, so that it is a farce to grant it; and that a Magistrate 643 ought not, or even cannot, give a protection order to a wife. They may rest assured that the Court did not hold any such nonsense. If there is a difficulty in enforcing a decree of restitution of conjugal rights it is caused by the Legislature, which lately took from the Divorce Court the power of imprisoning a wife for contempt for refusing to obey such a decree. But—perhaps it may appear absurd to the intelligent critics—we did not think that, by taking away from the Court a power which the Legislature thought was oppressive and unnecessary, the Legislature meant to give to the husband the power of perpetual imprisonment which it took away from the Court. We thought, and I still think, that the Judge of the Divorce Court may grant a decree, and the Magistrates may make an order, and that they need not attribute to the Court of Appeal decisions which, if they had read the Judgment, they would probably have seen that the Court of Appeal did not arrive at. I cannot see that the critics have reason to find fault with the decision of the Court of Appeal, which, begging their pardon, I venture to think was perfectly right.