HL Deb 01 May 1902 vol 107 cc389-409

[SECOND READING.]

Order of the Day for the Secoud Reading read.

EARL RUSSELL

My Lords, I must ask your Lordships' indulgence while I explain the provisions of this Bill and state the reasons which to my mind justify them. I can assure your Lordships that on my part this measure has not been hastily prepared. I have had occasion to consider the question of the divorce laws of this country for the past eight years at least, and I have felt that some Amendment is required. The Bill now before your Lordships has actually been drafted for three years. Your Lordships no doubt recollect among the fables of your youth the fable of a fox without a tail, and I have felt until the present moment that if I were to introduce any Bill dealing with the subject of divorce I should be exposed to misconstruction, and my attempt to alter the law would be regarded as not entirely disinterested. That objection no longer applies, and I am therefore emboldened to present this Bill for your Lordships' consideration. Clause 1 states the reasons for which a marriage can be dissolved a vinculo. The only existing ground for dissolving a marriage is set out in Sub-section (a) of Clause 1. The clause also sets out five other grounds on which either party to a marriage—the woman being placed in exactly the same position as the man—may petition for a divorce—namely, cruelty, penal servitude for a term of not less than three years, lunacy, living apart for three years, and living apart for one year provided the other party concurs in the petition. Clause 2 provides that when the wife presents the petition she shall have precisely the same remedies against the co-respondent with respect to damages as the husband in cases where the petition is presented by him. Clauses 3 and 4 are consequential clauses dealing merely with the settlement of property. Clause 5 provides for suits for nullity of marriage; and Clause 7 abolishes petitions for judicial separation, restitution of conjugal rights, or in respect of jactitation of marriage. A remedy to obtain the same object as a suit for jactitation is provided in Clause 6, which enacts that a person may present a petition to the Court for a decree declaring that a marriage has or has not been in fact solemnised between him and any other person, and the Court may pronounce a decree accordingly.

As to procedure, Clauses 8, 9, 10, and 11 make considerable alterations. They abolish the present ecclesiastical common law and the ecclesiastical procedure of the Divorce Court, and provide for the framing of rules in accordance, as far as possible, with the rules in force in the King's Bench Division; power to tax costs and have them paid into Court before the hearing is abolished; but provision is made for security for costs. Clause 12 provides that a suit for the dissolution of marriage may be brought in the County Court, where the total joint annual income of a husband and wife does not exceed £500; but no claim for damages against a co-respondent shall be made in a County Court. Clause 16 alters the law as to the time when a decree of dissolution of marriage shall take effect. Instead of the present system of a decree nisi running for six months and then being made absolute, the clause provides that a decree of dissolution shall take effect, if there is no appeal, on the expiration of one month from the date of the decree; and if there is an appeal, at the conclusion of the hearing of such appeal or at the expiration of time for further appealing.

Clause 17 provides for legitimation by subsequent marriage, and is not connected with the divorce provisions of the Bill; and Clause 18 legalises marriage between a man and his deceased wife's sister, and between a woman and her deceased husband's brother. I desire to say at once that I introduced the latter clause into the Bill intending thereby to lay before your Lordships what appeared to my mind to be desirable provisions to enact in regard to the law of marriage; but I do not propose to offer any observations upon it or to press it in any way, desiring to confine discussion to the provisions for divorce. No doubt these provisions will be considered by many of your Lordships as entirely novel, and perhaps unheard of; but they will not appear so novel to any one who has read the debates in both Houses of Parliament in 1856 and 1857 on the Matrimonial Causes Act, for nearly all the suggestions I now make were made when the Act of 1857 was passed. The history of that Bill is in itself interesting, and to some extent explains why it left some questions not fully dealt with. A Commission reported in 1850 or thereabouts, and a Bill was introduced into this House in 1856, but did not proceed farther. A second Bill was introduced at the beginning of 1857, and, having passed through your Lordships' House, was sent down to the House of Commons in March of that year, but its progress was interrupted by a dissolution of Parliament. In the same year a third Bill was introduced and passed, and sent down to the other House in the month of July. That Bill—it was a Government measure—appears to have been forced through the House of Commons in the face of considerable opposition. The discussions on the Bill continued until well past the middle of August—an unusual time for Parliament to be sitting—and therefore the consideration given to it was not what it might have been if the Bill had been before the House at an earlier period of the session.

The mind of everyone who considers the question of divorce turns naturally to the religious view upon the subject—to the Scriptural warrant for divorce or the Scriptural prohibition of divorce, as the case may be. That occupied a very large portion of the discussions in your Lordships' House in 1856 and 1857, and I find that very divergent views were taken on that subject. In July, 1856, the Bishop of Salisbury said— He thought that no teaching could be more plain than this, and he could come to only one conclusion, viz., that our Lord had annulled the provisions of the libellum repudii and that divorce and remarriage were, according to the law of Christ, impossible. He, however, admitted that there was one exception allowed for divorce—not for divorce and remarriage, but for separation without the power of remarrying—and that was the case of adultery.

The Bishop of Oxford, whose view appeared to vary somewhat from time to time, said on July 3rd, 1856— He thought that it would be in the recollection of the House that he had never alleged that any canon of the Church laid down the law upon the matter, nor had he denied that marriage in its essence was other than a civil contract.

On June 25th, 1857, the Bishop of Oxford said— There were many of their Lordships who believed that whatever doubts there might be as to the general power of remarriage after divorce, there was me doubt that the words of our Lord forbade the adulterous woman remarrying in the lifetime of her husband.

Finally, in uttering a last protest against the passing of the measure, the Bishop said— He believed it was contrary to the law of God, contrary to the law of the Church of England, and, as he believed, fruitful in future crime and misery to the people of England. He believed that in passing it they were dealing a more fatal blow to family purity than they could by any other Act.

Whereas the Bishop of Oxford held that divorce and remarriage were impossible, other Members of the Episcopal Bench seemed to think that divorce was permitted in the case of adultery, and that remarriage—in the case, at any rate, of the innocent party—could take place. I have done what I could to arrive at a conclusion on the subject, and my own mind is that Christ, in answering the questions that were put to Him, did not contemplate what we understand by a divorce a vinculo. That being so, I do not think it is necessary for your Lordships at this date further to deal with the question whether or not there is a Scriptural permission for divorce a vinculo, because that has been settled by the passing of the Act of 1857. I need not, therefore, trouble your Lordships further with regard to the Scriptural argument, which seems to me not to be conclusive one way or the other; and I do not know that your Lordships would feel bound, in legislating at the present day, by some dictum laid down in the New Testament, and variously interpreted. The question was felt to be so difficult in 1857 that the appointment of a Select Committee was moved to consider it, but the proposal was rejected, it being felt that the decision of a Select Committee could have no authority which would be binding on a theological question of this character.

What is our present practice with regard to divorce? A divorce a vinculo is granted to a husband for adultery on the part of his wife, and to a wife for adultery on the part of her husband when coupled with cruelty or other aggravating circumstances. It was felt at the time when the Act was passed that that difference between the sexes was an unfair difference, and one which could not be maintained; and, owing to the growth of that feeling, the practice in the Divorce Court has been to find the husband guilty of cruelty, when adultery has been proved, on evidence which is continually decreasing in strength. The other remedy that the present law provides is that of judicial separation, which is a divorce for all practical purposes, but does not dissolve the legal bond of marriage or enable either of the parties to marry again. Such a separation as that is granted for cruelty and desertion. It is a sort of via media that has been discovered in this country, and is, I believe, peculiar to this country, between absolute divorce and refusal of divorce; and it is supposed to afford sufficient relief to those who suffer through unhappy marriages. Desertion, according to the ruling of the Courts, cannot commence if the parties have once separated by mutual consent. I speak subject to correction, but I have been advised that where a desertion takes place in the first instance by consent, even for a time limited, that cannot be converted into a wilful desertion by the refusal of one party to return to cohabitation. Your Lordships are, of course, aware of the provisions against collusion and connivance, and for damages against the adulterer. In addition, there is the special provision that a decree when made shall not become absolute for six months, and there is an official known as the King's Proctor whose duty it is to spend the interval in ascertaining whether anything material has been kept from the Court, and whether the petitioner came to the Court, as the expression is, "with clean hands." The law as it exists at present in this country is that where one party to the marriage has committed adultery a divorce can be granted, but where both parties have committed adultery a divorce is refused. In accordance with the present practice of the Court, if both parties desire a divorce they are almost certain to be found guilty of collusion. The provision with regard to collusion was originally intended, I presume, to prevent one party committing adultery by agreement with the other; but it has come to mean in practice that one of the parties must be supposed not to desire the divorce which the other party is seeking. An action for divorce has only to be undefended for collusion to be at once suspected.

Then, my Lords, there is a curious claim as to territorial jurisdiction made by the Divorce Court, which makes the law bear harder on many people than might otherwise be the case; for if persons were able to obtain divorces in other places the severity of the divorce law in this country would not affect them so seriously. But, as the law stands, a divorce obtained in another country is not recognised unless the person who obtains it is domiciled there, and the admission of such foreign domicile is practically never made by the Court. The Court, however, claims to exercise jurisdiction over persons even of alien nationality who are not domiciled in this country. There is the case, familiar to the legal Members of your Lordship's House, of a gentleman, a native of France, who was acting as consul in this country for the French Government. He was a foreigner, and had acquired no domicile in this country, but he was divorced by his wife, the Divorce Court claiming to have inherited the ecclesiastical jurisdiction of a bishop to discipline Christians having their marital home in his diocese. So your Lordships will see that the Court claims jurisdiction over a foreigner who is not domiciled in this country, while it refuses to recognise that power on the part of the Divorce Courts of other countries. We have very close at hand a divorce law which differs materially from ours, and which agrees to a large extent with the proposals I am laying before your Lordships. We have to go no further than Scotland to find a country where divorce a vinculo is permitted for desertion for three years and upwards, and that law has not, so far as I am aware, led to scandal or abuse. In America, divorce is allowed for a great many reasons, some of which might appear almost frivolous. The practice is so varied in the different independent sovereign States of the Union, that it is difficult to lay down any general law; but your Lordships are, no doubt, aware of what are the general grounds on which a divorce is granted in America, and that desertion and cruelty provide grounds for divorce in a large majority of the States. The question arises, is there any need for an Amendment of the divorce law? Although not one of your Lordships may be prepared to support this Bill, I still think there is not one noble Lord who can say that the divorce law is in a satisfactory or logical position, or who will not admit that some Amendment is urgently called for. Cases of hardship arise perpetually. There are cases in which persons have been, to all intents and purposes, divorced for years and years, but, notwithstanding, severance of the legal bond is refused to them, and they are condemned to live a mutilated life, without a home, a spouse, or a family, or the chance of obtaining any.

The illusory remedy of judicial separation stands, I think, as the worst ever presented as a settlement of matrimonial differences. That I am not alone in that opinion your Lordships will find from the debates that took place in 1857. I am glad to find that even a Bishop—the Bishop of Exeter—took the view that the remedy was not a suitable one. He said— With regard to the doctrine of divorce a mensa et thoro, he thought that it was wholly inapplicable to the nature of the offence, and to the circumstances of the law. It was unknown by the Church of Christ at any period, except under the dominion of Rome; but they were now asked permanently to inflict the corrupt system of that Church upon the Church and the nation of England.

On July 3rd, 1856, the Earl of Donoughmore said— What was the law of the Church? It was a remnant of old Catholic times—a remnant of those laws which were made by the priesthood for the purpose of obtaining complete control over the people, and an invention to raise quibbles with the object of levying taxes for dispensations on the marriages of the whole population of Europe. It was confessedly by mere accident that this part of the ecclesiastical law was retained in our jurisprudence. … He hoped the day was not far distant when Parliament would adopt a general law dealing with this subject in the plain common-sense view which had prevailed in Scotland for years without having inflicted any injury to the morals of the people—that we should recognise the fact that a wife had the same right of divorce as the husband. Great stress had been laid by the noble Baron and by both right rev prelates upon the danger likely to ensue from the liberty of divorce which the Bill would give; but, in reply to that apprehension, he would refer to the case of Scotland, where that liberty had existed for years, and without producing any deteriorating effect upon the morals of its people.

I have another opinion, which I regard as a very valuable one, to quote. On August 6th, 1857, during the passage of the Bill through the House of Commons, Viscount Palmerston said— The position in which man and wife were placed by these judicial separations was a most objectionable one, and if marriage were dissolved at all, he thought that it should be dissolved altogether, that the parties should be entirely set free, and that they should be able to contract other engagements. He thought that parting man and wife by these judicial separations placed both of them in situations of great temptation, where they were liable to form connections which it was not desirable to encourage.

I must apologise for reading so many quotations to the House, but I feel that the words of other speakers in support of my argument must carry far more weight than any words of mine can. There can, I think, be no question that the religious view taken of marriage is a survival of that taken by the Roman Catholic Church. In the days when the Church was first allied with the Roman Empire divorce went on very much in accordance with the principles of Roman law, and with a freedom which nobody wishes to re-establish; but the Church gradually came to obtain control over human relations, and the Council of Trent, I believe, finally settled that marriage could not be dissolved for any reason at all. That survival came near being abolished in this country as long ago as the sixteenth century. Archbishop Cranmer, with the assistance of numerous other eminent divines and jurists, drew up a code of Protestant reforms considered desirable, dealing among other things with the law of marriage and known as the Reformatio legum. It may be a surprise to those who have not studied this subject to know that this code provided for divorce a vinculo not only on the ground of adultery, but on the ground of cruelty and desertion. At that time, therefore, the country came near obtaining that for which I fear I shall ask your Lordships in vain to-day. What is it that happens when a marriage is disolved by a sentence of separation a mensa et thoro? Both parties are deprived of the opportunity of making fresh ties; both are left neither husband nor wife, nor is either capable of marrying again. They have no home and no power of re-establishing one, they are deprived of mutual help and comfort, of family life and of home. I submit that increased facilities for divorce do not, as is too generally assumed, tend to immorality, but where divorce is justified, tend rather to morality, happiness, and family life.

There has been a change also in the facts of married life in the present day. Your Lordships are all acquainted with the play "The Taming of the Shrew," in which a somewhat violent man marries a rather violent and rebellious wife. The methods which the husband adopts to reduce his wife to order would in the present day expose him to a successful petition for cruelty and the wife would get a judicial separation. An argument often used against divorce is that where there is an opportunity of separating, the bond of marriage will be less kept to than when it is known that the bond is indissoluble. But no husband is bound at the present day to live with his wife and no wife is bound to live with her husband. The Eccles-siastical Courts took at any rate a logical view of the matter, and recognised that you must either have a real marriage by which the party who refused to live with the other party should be compelled to do so or to go to prison (and for that purpose gave the action for restitution of conjugal rights), or give up the argument of indissolubility. But what is now the effect of that action? The effect of a successful action for restitution of conjugal rights is not to restore the parties to the married state. The order used to be enforced by the painful process in the last degree of imprisonment for contempt, but since the Welldon Act that is no longer the case, and a refusal to obey the order for restitution is now taken as an equivalent for wilful desertion for two years and upwards, and gives the right to a judicial separation. In this way the action effects the exact contrary of its nominal object.

Since the Jackson case was decided it is no longer the law that a husband may put duress on his wife to remain in his house longer than she wishes. If she chooses she may leave him at the church door, and the marriage which has been effected in the church may be broken at that moment by the wife walking away, and there is no power which can bring them back to a state of marriage. I say that if the state of marriage has in fact been abolished it is no longer an advantage to say that the marriage bond shall be indissoluble. Under these circumstances we are not justified now in saying—though I admit that this was an argument which had force in its day—that persons are bound to live together and will somehow endeavour to make the best of it.

I now turn to the provisions of this Bill. Adultery is already admitted by the law to be a sufficient ground for divorce, and I submit that cruelty should also be a reason for obtaining a divorce. At present it is the means of obtaining a divorce a mensa et thoro—a partial divorce—but it would be better for the morality and the happiness of the parties were it recognised that cruelty is inconsistent with the marriage vows that bind husband and wife together. Desertion is also entirely inconsistent with the vows they have taken to comfort and assist each other. I have the support in this view of Mr. Gladstone. Mr. Gladstone was a strenuous opponent of the Bill of 1857, and he made many observations against it, among them the following— We have many causes far more fatal to the great obligations of marriage, as disease, idiocy, crime involving imprisonment for life, and which is, if the bond is dissoluble, might be urged as a reason for divorce; but that is not what I wish to dwell upon at present. My hon. and learned friend said by the fact of the adultery the marriage bond is destroyed, and then he asked the House to pass a Bill under which nineteen out of every twenty adulterers in the land would be covered with perfect immunity.

Mr. Gladstone was, of course, referring to the provision that a husband could not be divorced for adultery only. He proceeded— I repeat, the enormous majority of adulteries are adulteries of men; and having shown that adultery destroyed the marriage bond, my hon. and learned friend immediately demanded a licence to destroy nineteen-twentieths of the propositions he laid down.

On the same point Lord Lyndhurst said in March, 1857— I find that in Scotland adultery on the part of the husband gives the wife a right to a divorce, just as the adultery of the woman gives the man a similar right. The remedy extends alike to the lower as to the higher classes; and yet I believe that the state of the law has had no demoralising effect in that country. Why, then, should we assume that a similar provision would be prejudicial to morality in this portion of the United Kingdom? In my opinion there is no reason why the law of Scotland upon this subject should not be extended to England; and I do not think that one arrangement ought to prevail upon such a point in the north and a different one in the south of the island. When the former Bill was before a Committee I took occasion to say that, as in Scotland the law was equally applicable to the husband and wife, I thought there was no reason why a similar rule should not be adopted in this country.

On the question of desertion, Lord Lyndhurst said :— There is another alteration which I am most anxious to see introduced into this Bill. I think that when a husband breaks his marriage vow, and, after abandoning his wife for a certain number of years, goes to a distant country with the view of deserting her, divorce a vinculo ought to be granted to a wife so deserted. In pressing that point on your Lordships' notice, I would ask you to reflect for a moment on the objects of marriage. Look at the marriage ceremony of our Church. Three objects are there stated—first, the procreation of children, and their nurture in the fear of God; secondly, the prevention of sin; and thirdly, the love, comfort, and protection, in sickness and in health, between the husband and the wife. What is the vow taken by the husband in the ceremony of marriage? Nothing can be more stringent. He vows he will love, comfort, keep, and protect his wife, in sickness and in health, and, forsaking all other women, keep only to her until death do them part. That was the obligation which he voluntarily contracted. It was as strong an obligation as any into which it would be possible for him to enter, and it was one which must exercise the most powerful influence over any man possessing the least degree of feeling. When he disregards that obligation, when he defeats all the objects for which marriage had been instituted—when he passes into a distant country with a view to cut off' all communication between him and his wife, is it right or just that she should still be bound to him by our marriage law? Can we say, under such circumstances, that the wife should be tied to a man who has so cruelly deserted her and her children? Is there any justice in such a system? Since this matter was last brought under the consideration of your Lordships' House, I have received several communications from women placed in this unfortunate situation, and I cannot describe to your Lordships how strongly their recitals of the wretchedness of their condition were calculated to wring the heart. The first thing to which a woman looks in early life is a matrimonial union, on which she may build all her prospects of future happiness. She afterwards selects an object for her affection. With that confidence and fidelity which women only can entertain, she gives up to him her property, her person, and all her expectations of welfare in this life. Before long, however, she wakes from this dream, and finds herself abandoned and deserted by the object of her love. She sees nothing before her but a dreary existence, without anything on which she can repose her affections; her life is a life 'Where no hope comes that comes to all.' Possessed, on the other hand, of a warm heart, a generous spirit, and a confiding temper, she meets with some cowardly seducer, sinks into sin, and ends her life in misery and wretchedness. I most earnestly implore your Lordships to consider this state of the law. We are here not to protect our own sex alone, but we are still more called on to protect those who have no means of protecting themselves. Why, I repeat, should the law in this respect be so different between the two parts of the United Kingdom? Why should Scotland be just and generous to women in this respect, and England be cold, unfeeling, barbarous? Let me remind you that the great mass of the enlightened divines of the Church of England, and many laymen of distinguished talent and position, laid down the doctrine, in the reigns of Henry VIII. and Edward VI., that the rights of divorce should be granted to a wife who had been abandoned by her husband. I make these observations, my Lords, in the present stage of this Bill in order to give your Lordships an opportunity of reflecting on the justice of this claim; and the more you reflect upon it, I am sure you will be the more disposed to grant the necessary relief.

I do not know that I could possibly express so well, in any words of mine, the necessity and the justification which, in my opinion, exist for divorce on the ground of desertion. Those remarks were made forty-five years ago, and since that time there has been no material alteration in the divorce law of this country. At a later date, in June, 1859, a protest was lodged by Lords Lyndhurst and Hutchinson which cited reasons for granting divorce on the ground of desertion. They stated— It is well known that at the Reformation the subject was anxiously and carefully considered by prelates and divines eminent for learning and piety, and that they came to the conclusion that wilful desertion was a scriptural ground for divorce. We find the names of Archbishop Cranmer, of the Bishops of London, Winchester, Ely, Exeter, and others; of Latimer, Parker, etc., of Peter Martyr, Martin Bucer, Beza, Luther, Melancthon. Calvin, etc., among those who maintained this opinion, and which was adopted by the whole body of Protestants on the continent of Europe.

I think it is, therefore, clear that I was justified in stating that proposals contained in this Bill are not so novel as they may at first sight appear.

I now come to the sub-sections of Clause 1, which provide that either party to a marriage may petition for a dissolution on the ground that the other party is undergoing penal servitude for a term of not less than three years, or has been certified to be of unsound mind under the Lunacy Act; and I submit that lunacy and imprisonment break the marriage tie as much as desertion. Where a wife is devoted to a husband who is sentenced to five years imprisonment, she will wait till he comes out; but there are cases in which that may not be so, and in those cases it does not seem to be unreasonable that the party who is deprived of the society of the other spouse should have an opportunity of dissolving the marriage. The same contention applies with regard to lunacy; and your Lordships will recollect that in the extract which I read from a speech by Mr. Gladstone both lunacy and imprisonment were mentioned as justifying a divorce a vinculo.

The most novel clause in the Bill is that which provides for divorce after one year's separation where both parties concur in the petition. As I have already explained, the theory of the present law is that one of the parties must desire a divorce and the other not. It often happens that both spouses earnestly desire divorce, though neither is willing to enter into collusion or to take the dirty and obnoxious roadprescribed by the present law. At present the only persons who can obtain divorce are those who commit adultery; and, as was predicted by speakers in both Houses of Parliament in 1857, the Act of that year has put a premium on adultery. There are many cases where it is quite impossible for husband and wife ever to live together again, and for those cases this Bill will provide a remedy. The argument frequently used against divorce is that it impairs the sanctity of the home. But in the cases contemplated by the Bill the home has already gone. The effect of these proposals would be to increase, not loose living, but the number of happy homes, and to diminish adultery. There would be fewer scandals and less evidence of a repulsive kind, which neither party would care to produce if a more decent method of breaking the marriage tie were provided. On the subject of the equality of the sexes, I would quote from two or three of the speeches on the Bill of 1857. The Bishop of Oxford said— He could find no shadow of a foundation in the Gospel for the extension of the right of divorce to a wife It was distinctly stated that a husband might put away his wife, but no general principle was asserted in the Gospel which would equally entitle a wife to put away her husband. It seemed to recognise an equality in the sexes; but the truth was, that though the sin might he equal in each, yet the social crime was different in magnitude as committed by the one or the other; and our blessed Master, while allowing a husband to put away his wife for adultery, because all the highest purposes for which marriage was instituted by God would be defeated by the infidelity of the wife, never extended the same right to the other side.

I am afraid that nowadays that will appear rather a Mosaic view to take of the relations of the sexes. Mr. Drummond, in the House of Commons, said— His object was to have perfect equality between the two sexes. The laws of England were more severe against the woman than were those of any other country in Europe. That House was a body of men legislating for women, and they had by a code of their own invention, and for their own purposes, contrived to establish the general notion that unchastity in a man was a much less evil than unchastity in a woman.

Mr Gladstone made a long speech, arguing most strenuously in favour of equal rights for both sexes, in the course of which he said— I believe that the evil of introducing this principle of inequality between men and women is far greater than the evil which would arise from additional cases of divorce a vinculo ; and I take my stand in the first place on this: that if it be assumed that the indissolubility of marriage has been the result of the operation of the Christian religion on earth, still more emphatically I believe it may be assumed that the principle of the equality of the sexes has been the consequence of that religion.

A protest on the same subject was lodged by Lords Hutchinson, Harrington, Lyndhurst, Talbot de Malahide, and Belmore, after the passing of the Bill of 1857, in which they stated in emphatic words their reasons for countenancing equality between the sexes. Subsequently a Bill containing similar provisions to those contained in the Act of 1857 was introduced in the Council of the Governor-General of India; and in the course of a speech on this Bill, Sir Henry Maine quoted the opinion of Sir Barnes Peacock— Sir Barnes Peacock" (said Sir Henry Maine) "states his opinion to be that he does not think it either just or politic to allow a dissolution of marriage for adultery of the wife, and not to allow it to the wife for adultery of the husband, however flagrant and however open, and however often repeated, provided it be not incestuous. He points out that this is not only his opinion, but that of many lawyers, jurists, men of the world, and legislators. He remarks on the inconsistency of placing the sexes on equal terms as regards judicial separation, but not as regards divorce. He cites a dictum, that separations without divorces a vinculo either condemn to celibacy or lead to illicit connection. He quotes a contention to that effect in the Marquess of Northampton's case, reported by Bishop Burnet, and a similar argument used in Lord Rous's case. He appeals to an argument of Lord Thurlow in Mrs. Addingtonts case that, under the Mosaic institutions and the Gospel, a woman might be put away for adultery, and might have similar redress against her husband. He next quotes Lord Eldon's statement that a wife had as good a right as a husband to relief in cases of this description; and he argues that, in a religious point of view, both acts of adultery are equally criminal, and both are alike breaches of the marriage vow if looked at merely as a civil contract.

It often happens that persons make mistakes in their marriages. If we were all omniscient, no doubt we should all contract happy and successful marriages; but as it is, persons sometimes make mistakes, and in such contracts the Legislature ought, as far as possible, to enable the contracting parties to place themselves in the position they occupied before they made their mistake. I hold that the object of a well-thought-out system of divorce should be to provide a lawful method by which persons who contract such unfortunate alliances might free themselves. As to damages against a co-respondent, Clause 2 of this Bill leaves the law as it stands; though it is with reluctance that I admit the necessity of doing so. I agree entirely with the observations of Lord St. Leonardds on that subject, when he said :— He trusted that actions to recover damages, to which a party suing for a divorce must now resort, would be abolished, for he perfectly agreed with the right rev. prelate that if there was anything' more disgraceful than another in our legal procedure it was this action for damages. He should like to know what a man was to do with the money so recovered. He could scarcely mix it up with his common funds, or consent to use it for his own benefit in any of the ordinary transactions of life. He would no more touch it than he would touch scorpions.

There are, I suppose, persons to whom it is a satisfaction and a gratification to recover damages for the loss of their wives, and so I presume some such provision must remain. Clauses 3 (Maintenance and Settlements), 4 (Custody, Maintenance, and Education of Children), and 5 (Nullity of Marriage) leave the law as it at present stands; Clause 8 makes alterations in procedure, and Clause 9 provides that it shall not be necessary for any pleadings to be accompanied by an affidavit. The procedure in the Court at the present time is founded almost entirely on the procedure of the Ecclesiastical Courts, which is quite out of date, and the practice should be made analogous to the Rules in force in the King's Bench Division. I think all who practice in the Divorce Court will admit the advantage of such an assimilation.

Now, I approach a totally different subject, and that is the proposal to give the jurisdiction of the Divorce Court to-County Courts. I cannot resist first reading to your Lordships some observations of Mr. Justice Maule in passing sentence on a bigamist— Prisoner at the bar, you have been convicted before me of what the law regards as a very grave and serious offence, that of going through the marriage ceremony a second time while your wife was still alive.

You plead in mitigation of your conduct that she was given to dissipation and drunkenness, that she proved herself a curse to your household while she remained mistress of it, and that she had latterly deserted you; but I am not premitted to recognise any such plea. You had entered into a solemn engagement to take her for better, for worse, and if you got infinitely more of the latter, as you appear to have done, it was your duty patiently to submit. You say you took another person to be your wife because you were left with several young children, who required the care and protection of some one who might act as a substitute for the parent who had deserted them; but the law makes no allowances for bigamists with large families. Had you taken the other female to live with you as your concubine you would never have been interfered with by the law. But your crime consists in having—to use your own language—preferred to make an honest women of her. Another of your irrational excuses is that your wife had committed adultery, and so you thought you were relieved from treating her with any further consideration; but you "were mistaken. The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you did not think proper to adopt it. I will tell you what that process is. You ought first to have brought an action against your wife's seducer if you could discover him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law. You would then be obliged to prove by evidence your wife's criminalty in a court of justice, and thus obtain a verdict with damages against the defendant, who was not unlikely to turn out to be a pauper. But so jealous is the law (which you ought to be aware is the perfection of reason) of the sanctity of the marriage tie, that in accomplishing all this you would only have fulfilled the lighter portion of your duty. You must then have gone, with your verdict in your hand, and petitioned the House of Lords for a divorce, it would cost you perhaps five or six hundred pounds, and you do not seem to be worth as many pence. But it is the boast of the law that it is impartial, and makes no difference between the rich and the poor. The wealthiest man in the kingdom would have had to pay no less than that sum for the same luxury; so that you would have no reason to complain. You would, of course, have to prove your case over again, and at the end of a year, or possibly two, you might obtain a decree which would enable you legally to do what you have thought proper to do without it. You have thus wilfully rejected the boon the legislature offered you, and it is my duty to pass upon you such sentence as I think your offence deserves, and that sentence is, that you be imprisoned for one day; and inasmuch as the present assizes is three days old, the result is that you will be immediately discharged."

It is said that those observations of Mr. Justice Maule had some effect in obtaining the passage of the Divorce Bill of 1857. That Bill was held out as intended to provide a cheaper remedy for the poor man; but as regards poor persons the Act of 1857 is as much a farce today as the procedure by means of a private Act of Parliament was before that date. The cost of obtaining a divorce, even in an undefended case, varies from £50 to £150, and labourers and other working-men cannot afford to spend £50 for the luxury of a legal divorce. Speaker after speaker in 1857 said these powers should be given to County Courts. The Marquess of Lansdowne said— I believe that the evils arising from the want of the power of divorce are as great among the loner orders of this country as among the higher clashes—nay, I believe them to be greater. It is possible that if the House will go into the inquiry, some means may be found of extending the tribunal having cognisance of these cases to every part of the country.

The Bishop of Exeter said— The great object of such a measure ought to be to establish the same law for the poor as for the rich. The only way to make justice cheap in this matter, and easily obtainable, was to establish throughout the country district Courts, which would administer justice in each particular locality.

Lord Wensleydale said— His fear was that if such a jurisdiction as that contemplated in this Bill were created no answer could be given to any future demand for an extension of the power of deciding these questions; and no one could then say why it should not be brought home to the door of every poor man, and why the County Court should not have authority to dissolve the marriage tie.

The Earl of Malmesbury expressed the opinion that— A single Court in London might no doubt be rendered useful to all classes residing within the Metropolis; but the people in the provinces would not receive, so far as he could understand, any greater benefit from the measure then they possessed under the existing law.

Lord Lovaine said— Even if this Bill passed divorces would still be restricted to the wealthy. The Government, in fact, proposed to still leave marriage indissoluble to nine-tenths of the people.

In the House of Commons, Mr. Collins said— The County Courts were the only Courts to which the poor man could apply for relief in the circumstances supposed by the Bill, but if they were to be closed against him the measure was a mere farce.

Mr. Butt inquired, where was the inconvenience of a County Court determining whether a wife had committed adultery or not, and added— A County Court at this moment tried the very issue to which the Attorney General objected. Any tradesman who supplied necessaries to the deserted wife might sue the husband for the cost. The husband might answer that he had a good cause for deserting her, and then the Judge must decide.

Another speaker thought they ought to make some attempt not to destroy all the existing local Courts without providing some equivalent. I do not think that any words of mine are needed to commend to your Lordship a provision for extending justice to the poor. Whatever might have been thought of County Courts at that date, when they existed for the recovery of small debts and nothing else, County Court Judges have now to deal with cases involving some of the nicest legal points that can be imagined, such as the Workmen's Compensation Act, and there can be no objection to their trying such a simple issue of fact as whether there had been adultery or not. The Bill does not propose that cases in which damages are claimed shall be tried in County Courts. Petitioners who wish to indulge in the luxury of damages may well be left to another Court. There is one other matter and that is Clause 17, which relates to legitimation by subsequent marriage. The practice in this country in this matter differs from that of all civilised nations. I will read to the House a statement by Mr. Henry Goudy, D. C. L., on this subject in a lecture on the survival of Roman Law. He said— In England a son who is born out of lawful wedlock must remain a bastard all his life. The subsequent marriage of his parents, quite lawful in itself, can have no effect on his status; his younger brothers and sisters, born after the legal marriage, will wholly exclude him from the legal succession to his parents or natural kinsmen. He can neither be heir nor himself have heirs on intestacy, except those of his own body. In Scotland the law on this matter is exactly the reverse. The subsequent marriage of the parents of an illegitimate child makes it legitimate. By a convenient legal fiction the marriage is presumed to have existed at the date of the birth, so as to confer the status of legitimacy as from that date. But I venture to think that in any future codification of the law of the family relations, England must be prepared to follow the lead of Christendom and accept the Scottish law on the subject. It seems just that the parents of an illegitimate child should have the opportunity of atonin for their offence by marriage, and saving their offspring from unmerited disgrace.

I think the proposal in the Bill will appeal to everyone as a matter of common sense. In conclusion I have to thank your Lordships for the patient hearing you have given me, and to assure you that I should not have brought this Bill forward had I not been convinced of the urgent need for an Amendment of the divorce law of this country.

Moved, That the Bill be now read 2a.—(Earl Russell.)

THE LORD CHANCELLOR (The Earl of HALSBURY)

My Lords, I very much regret that such a Bill as this has been introduced into your Lordships' House. I cannot help thinking that if the custom which obtains in the House of Commons, requiring leave to be given to introduce a Bill, prevailed in this House, no leave ever would have been given for the introduction of this Bill. In the noble Lord's voluminous observations we have heard a great many things which might be the subject of debate; but the main provision of the Bill, the first clause, shows that practically this Bill is one for the abolition of the institution of marriage. That in itself is enough—at least, I hope it is enough—to prevent the discussion of the Bill. I should be very sorry to think that in this House the question whether marriage should continue to exist in this country should be considered a subject for debate. To prove that this is the principle involved, it is only necessary to read to your Lordships the following Section of Clause 1— That, during the year preceding the presentation of the petition, the parties to the marriage have lived apart, and that the other party concurs in the petition. That is to say, that if two people have married and have entered into the most solemn obligation that can possibly exist among mankind, it is enough for them to live apart for one year and both consent to the dissolution of the marriage, and upon that the Court shall pronounce a decree dissolving the marriage. I take that alone—I decline to discuss a great many of the other topics which might fairly be the subject of discussion—I take that alone, and I say that the introduction of such a provision as that is an outrage upon your Lordships' House, something in the nature of an insult to your Lordships, and it is a thing which I, for one, deprecate most strongly. I, therefore, propose to take this personally. Of later years it has been the custom that what is, in effect, a postponement of a Bill should be moved, and not its rejection. In an earlier period of your Lordships' history it was very common to move the rejection of a Bill, and I propose to move the rejection of this Bill. I should have thought it would have been more in accordance with the ordinary practice of your Lordships' House that I should move an Amendment to the Second Reading in order to introduce the word "rejection," but, on looking up the precedents, I find it is more usual, first of all, to negative the Motion for the Second Reading, and then subsequently to move the rejection of the Bill. I propose to take that course.

On Question, resolved in the negative.

Then it was moved that the Bill be rejected.—(The Lord Chancellor.)

On Question, agreed to; and ordered accordingly.

House adjourned at ten minutes before Six o'clock, till Tomorrow, half-past Ten o'clock.