SECOND READING. (Hansard, 1 August 1905)

EARL RUSSELL

My Lords, the Bill which I have presented to your 1065 Lordships this year, and the Second Reading of which I am now about to move, is a very considerable modification of those measures which I have submitted previously. The Bill is an extremely short Bill, consisting practically of one clause. I have modified the provisions of the Bill which I introduced before in deference to the feelings of the House and to the remarks of the noble and learned Lord on the Woolsack. The noble and learned Lord, speaking, I think, with his tongue in his cheek, referred me on the previous occasion to the wisdom of Parliament which my attempts at legislation were hurling them selves against. I think an historical examination of the circumstances of 1856 and 1857, and of the conditions under which the Matrimonial Causes Act of 1857 became law, will show that the wisdom of Parliament ultimately expressed itself, as it generally does in our legislation, in a compromise between two opposing factions; and that the Bill which was then passed, while opposed on account of its latitude by one section of opinion, was opposed by another section because it did not go far enough.

The object of this Bill is to add to the reasonable grounds for divorce a vinculo the matrimonial offence of desertion, and to insert in the operative section—Section27—of the Matrimonial Causes Act, 1857, additional words giving desertion without cause for two years and upwards as a ground for a divorce a vinculo. I may be asked why I have taken the particular period of two years. I have taken the exact period and the exact words used in the Act of 1857, which is now in force, to describe the matrimonial offence of desertion. The remedy now given is one of judicial separation, and the object of this measure is to give a judicial remedy and a superior remedy—an entire divorce a vinculo. I do not wish to repeat the many quotations I have already given to the House, but I need hardly tell your Lordships that an extension of the grounds for divorce has had support in this country from different quarters from the time that the question of divorce was first discussed. At the time of the Reformation it was, of course, perceived that an extension of the grounds for 1066 divorce was a logical and natural accompaniment of a Protestant country, and of a country which no longer felt itself bound by the traditions of the Roman Catholic Church.

In the discussion on the Bill of 1857, which constitutes the present law of this country, we find that extensions of the ground for divorce were urged. The Prime Minister of that time, Lord Pal-merston, himself said in the House of Commons that he considered that a judicial separation was not a satisfactory remedy for the matrimonial offence of desertion. Mr. Gladstone opposed the Bill itself, naturally, at all its stages; but Mr. Gladstone himself said that he could readily conceive that there were other causes which might be as good and as reasonable causes for divorce as the cause of adultery. Your Lordships' House also took an active part in the discussion, and several noble Lords expressed the opinion that desertion should be a ground for divorce. Protests were presented by Lord Lyndhurst, by Lord Hutchinson, and by other noble Lords, stating that desertion should be in their opinion a ground for divorce, and a division was taken upon an Amendment to that effect. But from 1857 to the present time practically no amendment has been made in the substantial law of divorce in this country.

There have been some changes since then, and they have been changes partly of legislation, partly of judicial decisions, and partly of custom. One of the changes was effected by what is known as the Weldon Act, by which a decree of restitution was no longer enforced by attachment. Another change in the marital law arose out of the Jackson case. The effect of that decision has been that a husband and a wife in this country are no longer by the law of the country compelled to live together. A husband and a wife may separate without a judicial separation and may live entirely apart, but although the present law allows that, subject, I admit, to proceedings for desertion after a time, and subject to a decree of judicial separation, the law does not provide for any further breaking of the bond, and leaves the unfortunate persons in that position without any 1067 remedy or any possibility of a future life in the married state.

I wish to quote to your Lordships an article in The Times. The Times, I think, will not be accused of being a revolutionary newspaper; yet in a leading article on the Jackson case (March 20th, 1891) The Times is to be found recognising the absurdity of a legal fetter when all moral bonds are broken. This is what The Times said— It has been laid down that a man and woman cannot be compelled to live together against the will of either. Very well. We have not a word to say against it. The principle is in harmony with modern feeling and with modern legislation. But if this is so, if Mr. Jackson or anyone else is thus deprived of his wife's society for good and all, why should he be in any way bound to her? Is it not a flagrant injustice that he should in future be compelled to regard himself as her husband, more or less responsible for her actions, certainly responsible for her debts, she bearing his name, and he bearing the burden of her claims upon him? Freedom is a very fine thing, but let it not be one-sided. If a woman for no fault of the man is entitled to desert him, he ought in common justice to be free to have nothing more to do with her and to marry again. I have another quotation from a recently-published work which contains the reminiscences of one of the most experienced of our stipendiary magistrates, Mr. Plowden—who has been driven by his daily Police Court experience to write as follows— I cannot help observing that I have often found myself wishing in the course of my duties that magistrates were clothed with the power to grant divorces as well as judicial separations. These latter are only in the nature of compromises, and often fall short of the full measure of relief which the circumstances demand, and which is not less deserved than ardently desired. To stretch a chain is something, but it is not the same thing as to break it. And there must be many and many a matrimonial link which galls and chafes so cruelly that to sever it in twain effectively and once for all offers the only hope of happiness. Mr. Plowden goes on to say— With regard to the far larger question of amending the grounds for divorce, whatever may be the objections to such a course it can hardly be contended that the existing condition of things is wholly satisfactory. I say nothing of what some consider to be the transparent unfairness which puts the husband who seeks relief in such a much better position than his wife. What presses on the minds of some people who recognise the propriety of granting divorces is the un wisdom of limiting relief practically to cases of infidelity. To tell a wretched married couple leading a cat-and- 1068 dog life, with no particular blame on either side, that the law will not help them unless one or the other is secretly unfaithful, is really almost an invitation to sin. These, my Lords, are the deliberate expressions of opinion of Mr. Plowden, and you will see that on his experience there has weighed the necessity—the imperative necessity—for some change in a law, which has remained practically unaltered for fifty years.

Turning from authorities at home, I invite your Lordships' attention to the significant fact that this is practically the only Protestant country in which you have not some other ground for divorce than adultery. It is the case in the Protestant States of Europe and in America. We have this very matrimonial offence of desertion recognised in Scotland as a fitting ground for divorce, and your Lordships have an example there at hand from which you are able to judge whether the extension of the grounds for divorce in that respect has or has not worked evil to the community. I do not feel that it requires any apology on my part for bringing this subject before your Lordships. This is distinctly a social matter which is crying aloud for a remedy. There is a social injustice perpetrated by the present state of the law; there are a large number of people who are suffering from the present state of the law and suffering in an unmerited way, from no fault of their own, but simply because this country has so far refused to amend its law and bring it into harmony with the requirements and desires of a great many of the subjects of this country.

I was accused by the noble and learned Earl on the Woolsack on the last occasion when I brought this subject forward of doing so because I had a personal interest in the matter. I confess I did not quite understand the charge. If the noble and learned Lord meant that I was thirsting to avail myself of some remedy I can assure him he is mistaken. But if he meant that I have had experience of the injustice of our present law, I agree with him; but I do not see that that is any reason why I should refrain from doing all I can to prevent other people undergoing unnecessary suffering. It is also said very often that it is not for a private Member to bring in a 1069 measure of this character, but it should be left to His Majesty's Government. There are, no doubt, a great many measures that should be brought in by the Government, but I think all practical legislators know that the Government never bring in a Bill until they are forced to do so by the pressure of public opinion. It requires the pressure of public opinion, and very often a pressure extending over a long series of years, before the Government will take in hand a reform, however much it may be required.

I daresay that after many years some measure of this sort or some more comprehensive measure may be brought in by the Government, but at the present time I feel compelled to bring this subject before your Lordships, and I can assure you that some extension of the grounds for divorce, however it may be supported in this House, has already the support of a very large body of public opinion among thinking men and others who have been brought in contact with the necessity of the case and who have felt that the present divorce law does not provide an adequate remedy, more especially in so far as the poorer classes are concerned. This is a subject which your Lordships should be willing to discuss and consider impartially, and exercise your judgment upon as to whether any remedy is needed and what remedy. It is for the purpose of giving your Lord-ships that opportunity that I have

CONTENTS.
Russell, E. [Teller.]	Stanley of Alderley, L. [Teller.]
Gordon, V. (E. Aberdeen.)	Tweedmouth, L.

NOT-CONTENTS.
Canterbury, L. Abp.	Doncaster, E. (D. Buccleuch and Queensberry.)	Chelmsford, L
		Colchester, L
Halsbury, E. (L. Chancellor.)	Minto, E.	Cottesloe, L.
Vane, E. (M. Londonderry.) (L. President.)	Onslow, E.	Ellenborough, L.
	Roberts, E.	Hawkesbury, L.
	Shrewsbury, E.	Hylton, L.
Argyll, D.	Waldegrave, E. [Teller.]	James, L.
		Kilmarnock, L. (E. Erroll.)
Bath, M.	Churchill, V. [Teller.]	Kinnaird, L.
Lansdowne, M.	Colville, of Culross, V.	Kintore, L. (E. Kintore.)
Linlithgow, M.	Cross, V.	Lawrence, L.
Ripon, M.	Hardinge, V.	Newton, L.
	Hood, V.	Overtoun, L.
Clarendon, E. (L. Chamberlain.)	Hutchinson, V. (E. Donoughmore.)	Ramsay, L. (E. Dalhousie.)
		Stalbridge, L.
Camperdown, E.	Knutsford, V.	Stanmore, L.
Carnwath, E.		Thring, L.
Denbigh, E.	Bath and Wells, L. Bp.	Windsor, L.