SEPARATION AND DIVORCE BILL. [H.L.]

HL Deb 12 November 1918 vol 31 cc1184-231

Order of the Day for the Second Reading read.

LORD BUCKMASTER

My Lords, this Bill, for which I ask your Lordships' favourable consideration, is designed to give effect in one respect, and in a limited particular, to the recommendation of the Commission that sat to consider divorce and matrimonial causes. It will be necessary for me to refer frequently to the Report of that Commission in the course of the remarks that I shall make, but before inviting your attention to its provision and its recommendations it is, I think, desirable to state quite briefly what is at the present moment the position of our matrimonial law. If I were to invite your Lordships to any full and adequate consideration of that subject, it would be necessary to take you back through many centuries of our history. This law does not differ from any of our other laws. They always seem to me upon investigation to disclose the same characteristics as some geological stratum, in which you will find embedded among serviceable and massive pieces of rock the curious remains of extinct and strange monsters.

This law to-day is no exception. It is regulated by the Statute of 1857, but it may not be common knowledge to your Lordships that that Act really did no more than change an old, complicated, and cumbrous procedure, which was then the only means by which divorce could be obtained. In truth, before that Statute was passed divorce was not obtained by the order of any Court at all. The Ecclesiastical Courts were the only Courts that exercised jurisdiction in matrimonial matters, and the only exception to the remedy that they granted was what was known as divorce a mensa et thoro, which left the parties separated but still bound by the bond of matrimony. In order to get rid of the last link of the chain it was necessary to institute a Bill in Parliament, and it was only when the Bill had received the Royal Assent that the marriage was dissolved. The injustice and inequality of such procedure was, of course, obvious to all. It enabled rich people to get divorce; it left poor people and people of moderate means bound to endure the misery and suffering from which their better-to-do fellow-subjects were able to get release.

The Act of 1857 did not alter the causes or materially change the remedies. What it did was to concentrate in one Court the whole of the relief which had formerly been obtained by the means that I have described. It still left the Court empowered to grant a judicial separation, which is the legal equivalent to the divorce a mensa et thoro granted by the Ecclesiastical Courts, and it enabled the bond to be completely severed in cases where the woman had committed adultery, or where the man had been guilty of various special and peculiar and abominable offences or had been guilty of adultery, coupled with desertion for the period of two years.

But, in addition, it preserved the power, of ordering the restitution of conjugal rights. A more farcical order has never been administered by any of our Courts. It was an order to compel the spouse who was unwilling to live with his or her consort to resume marital relationship, and until, I think it was, 1884—at any rate until some date considerably later than 1857—this order, if disobeyed, was capable of being enforced by an order of attachment of the Court. That is now abolished, but the order for restitution still remains. The result is that, while a woman can only get divorce for adultery coupled with desertion, if she can obtain a decree for restitution of conjugal rights, and that decree is disobeyed, she is entitled at once, without proof of desertion or waiting for the two years, to go to the Court, and, on proof of adultery, to obtain a complete divorce.

As I said, I do not think the Courts have ever been called upon to exercise such a farcical jurisdiction since the days when they abolished the collusive suits for the purpose of barring entails. For what happens? What I am going to tell your Lordships is nothing but a fact within my own experience. A man and his wife wish to get divorced. The difficulty really is to know which is the party that is to take the proceedings, and who it is that is to bear the public odium of the guilt. Assume that it has been arranged that the man will accept that position. The woman then pro- ceeds to get a decree for restitution. She goes to a lawyer, who writes on her behalf an affectionate letter to her husband which satisfies all the necessary formalities, and he, upon its receipt, has merely to write back a blunt refusal saying he declines to go back to her, and they have taken all the necessary proceedings on which to found the jurisdiction for the decree for restitution.

As soon as the decree for restitution is obtained, what is left is to prove adultery. Now in some cases, where the man is anxious to marry another woman, he is not anxious to soil himself by the previous guilt of adultery; so this also is arranged by a man stopping at an hotel with another woman whose name is given as his wife. The evidence is obtained from the hotel books brought before the Court, which has no power whatever of questioning or checking its validity. The adultery is proved in the same way as the complaint with regard to restitution was, and the divorce is granted. These things are known and these things are practised, and it is not surprising that people who live in poorer circumstances, who have not at their disposal the means that enable them to invoke the jurisdiction of the Divorce Division of the High Court of Justice, should feel that they suffer a great hardship and a great injustice in being deprived of the opportunity, which is given to others, to end a married life which has already been shipwrecked in disaster and to see if it be not once more possible to start anew.

It must, I think, have been plain to your Lordships that it would be impossible for the law to have proceeded under the conditions which I have stated unless some corresponding measure of relief had been granted to the poor. In order to effect this—no doubt with the best intentions—an Act was passed in 1888, and ultimately extended in 1895, by which power to grant orders for maintenance and orders for separation were placed in the hands of the magistrates, who were empowered to grant these orders, speaking roughly, for causes of cruelty, desertion, and neglect to maintain. The extent to which this power was exercised has varied from year to year. It has amounted to as many as 7,000 in the year. I think it would be fair to say that on the whole it might be taken as about 5,000 cases in the year; and these people, separated by order of the magistrate, are left without any chance whatever of getting the bond of matrimony dissolved, although every obligation which that bond imposes has been flouted and denied by one or, it might be, even by both of the parties.

The result of this is not hard to discover. The result is that people who have been separated in these circumstances contract new alliances, but they are unable to get married. They go and live with other people; in some cases they have children. Many of them would gladly, if they could, have their union sanctified. They have no desire to live in a guilty and an immoral state. They want to be respectable, but the law forbids it unless either they can take the formal proceedings, in the case of the wife, of proving cruelty and adultery, or, in the case of the husband, of proving adultery, and invoking the assistance of the High Court to remedy their ills. It was in these circumstances that the late Lord Gorell, who was certainly one of the most illustrious and experienced Judges who have administered the jurisdiction of the Divorce Court, in 1909 moved in your Lordships' House a Resolution that County Courts should have jurisdiction in divorce cases in order that the poor may have ready access to Courts that were near their own doors.

The result of that Motion was a very full and a very instructive debate. On the whole many of the members of your Lordships' House who took part in it, while I think they felt the force of the case that Lord Gorell presented, were anxious that there should be a full inquiry into the whole subject before they made up their minds. Indeed, it was not unnatural, because, in spite of Lord Gorell's unrivalled experience, it was felt that a full investigation of the subject was demanded, and I believe also that some of your Lordships at least felt that the time had come when that investigation should be made, and when we should examine into the condition of our marriage laws and see whether they did satisfy the conditions of society, or whether in an attempt to keep them rigid and unchanged there was not grave danger that you were destroying the very thing that all of us are most anxious to preserve—the sanctity of married life, and the importance of men and women entering into the solemn obligation of marriage before they determine that their lives shall be spent together.

Following upon that desire being expressed, Lord Gorell withdrew his Motion, and in the autumn of that year—1909—a Royal Commission on Divorce and Matrimonial Causes was set up, composed of some of the most representative and well-known names both in connection with that subject and with social matters. It was a Commission that, I think, originally had twelve or thirteen members, including, of course, Lord Gorell himself, the most rev. Primate the Archbishop of York, Lord Derby, Lady Frances Balfour, Sir William Anson, Mrs. Tennant, Mr. Brierly, the stipendiary magistrate of Manchester, Mr. Spender (the editor of the Westminster Gazette), and others. And this Commission set upon their labours and sat for three years, their Report being published in November of 1912. I think it would be impossible to find any Commission before which the evidence was more representative and in which greater care was taken to sift and test it, greater anxiety shown to arrive at a right conclusion. In the end, when the Report was presented, there was a difference of opinion. A majority of nine of the Commissioners made a Report containing very strong observations indeed about the effect of our present marriage laws, and recommending some very stringent and far-reaching remedies; and a minority of three, composed of the most rev. Primate, of Sir Lewis Dibden, and of the late Sir William Anson, gave a Minority Report, dissenting in most particulars, but not in all, from the Majority Report. That Report, among other things, recommended that divorce should be obtained if wilful desertion were proved for a period of three years. The measure to which I ask your Lordships to grant a Second Reading to-day extends that period to five years. They also recommended that local Courts should be set up to deal with the cases of poor people; and the Bill that I ask your Lordships to consider varies that in the manner that I will subsequently explain.

The Report of this Commission and the three volumes of evidence upon which it is based—a great part, I cannot say the whole, of which I have very carefully read—constitute the foundation for the measure which I am introducing this afternoon. I do not propose to ask your Lordships to go again into the evidence which was before that Commission, or even to consider in detail many of the cases of hardship which were placed before them. This Commission was set up for the very purpose of relieving your Lordships of such obligation. It was established in answer to your Lordships' desire for information in order than when its Report was made there might be trustworthy matter upon which you could base your conclusions, and which might lead your to action in the matter. But, my Lords, there are some things in this Report to which I think attention ought to be called. In the first place, I should like to read to your Lordships what the Commission say as to the way in which the present law pressed upon the poor. At page 37 they say this— After the long inquiry upon which we have engaged, and after close consideration of the mass of evidence which has been laid before us, we are of opinion that there is necessity for reform in this country, both in procedure and in the law, if the serious grievances which at present exist are to be removed and opportunities of obtaining justice are to be placed within the reach of the poor classes. So far from such reforms as we recommend tending to lower the standard of morality and regard for the sanctity of the marriage tie, we consider that reform is necessary in the interests of morality as well as in the interests of justice and in the general interests of society and the State. I shall deal with these matters more fully when we examine the evidence.

I do not desire to burden your Lordships with reading more than is necessary of this Report, but the same spirit that is found in those sentences is echoed throughout the whole of the Report. I find, for instance, that at page 46 the Report says— Again we have come to the conclusion that beyond all doubt the present means of administering the law are such as to place it beyond the reach of the poor. One of the most striking features of the evidence of those familiar with the poorer classes is the almost unanimous opinion that they treat the law of divorce as a matter which is beyond their reach, to act as if it did not exist, with direct consequences which it is lamentable to hear. It may be asked why, in those circumstances, this measure does not attempt to carry out all the recommendations that that Commission made. It has been very carefully limited, and by design. It seemed to me that the whole subject was far too vast to be dealt with in a simple measure like the one which I am introducing this afternoon, and that it would be right to test your Lordships' opinion by taking one of the plainest and, to my mind, one of the most obvious of all the grievances, asking your Lordships' attention to that alone, and see if it is not possible, in that respect at least, to carry into effect the re- commendation of this Report. Therefore, my Lords, the Bill that I have introduced is limited entirely to the question of separation.

And if I might ask your Lordships' attention to the Bill for a moment, you will find that by Clause 1 it provides that people who have been separated, either by wilful desertion or by any order of any Court, and have remained separated for a continuous period of not less than five years, may apply to the Court for a decree dissolving the marriage; and if the Court is satisfied that the application is bona fide, the decree is to follow. Clause 2 does away with the difference between the present law, which compels six months to elapse between the first decree and the final decree, and enables the decree to be made absolute when the time for appealing has passed by. The reason for that is this. At the present moment the period that elapses between what is called the decree nisi and the decree absolute is supposed to be a period in which the King's Proctor is able to satisfy himself whether or no there has been collusion between the parties to the suit. Again, it is impossible to imagine that any functionary gifted with the widest and the most extensive inquisitorial powers can by any possibility test all the relationships between two parties about whom he has probably never heard a word from the moment when the decree nisi is granted until the moment when the decree absolute takes effect.

When the Court is busy taking undefended causes they may try twenty in a day. Is it conceivable that the King's Proctor can examine into each one of those twenty cases day by day in order to say whether there has been collusion or not between the parties before the suit was brought? I believe that the noble Earl who used to fill the office of King's Proctor is at present in this House, and I doubt whether he would challenge my statement if I were to say that on the whole his office was productive of but little value, and that he was more frequently called upon to interfere when the parties had begun to quarrel after the first order had been made, and one was seeking to deprive the other of the benefit of the decree nisi that had been obtained. At any rate, this measure that I propose eliminates that jurisdiction from this class of case, and then provides for an appeal with which lour Lordships need not be concerned.

Finally, it deals with the question with regard to the Courts where the jurisdiction is to be exercised in a new and different way. There is no doubt that the Royal Commission was seriously impressed with the hardships attaching to poor people under the present law, and I do not think that I am wrong in saying that even those who signed the Minority Report felt sympathetically to the hardships that many of the poor were compelled to undergo by reason of their being unable to provide the necessary funds that, even now as the law stands, would have given them the relief which their poverty and lack of means deprived them from seeking. There were cases mentioned—Lord Gorell himself mentioned one that came to him when he was sitting in Court, where he found that a woman had saved for twenty years in order that she might have the means to free herself of a bond which, if she had been a rich woman, she could have ended in twenty months. My proposal with regard to that is this. I do not interfere with the primary jurisdiction of the High Court of Justice, but this Bill provides that in any case an applicant is at liberty to go to the County Court Judge in the district, and apply for leave to institute proceedings in that County Court, and if the County Court Judge on reading the application is satisfied that the applicant has not the means to enable him to take proceedings in the High Court of Justice, he shall make an order granting permission to apply to that County Court, which shall thereupon exercise all the jurisdiction which the High Court possesses.

A great deal has been said from time to time against this exercise of jurisdiction by County Court Judges. I have read the evidence upon it, and have given it my very best consideration, and I fail to understand why it is that the County Court Judges should be considered so infirm of purpose or understanding as to be unable to exercise this jurisdiction. After all, so far as questions of fact are concerned, the questions of fact connected with all proceedings for divorce—both those under this Bill and those as they now stand—are really of the simplest character, and they are common to all causes. The law is really not obscure, and the only argument that I have found advanced against the exercise of this jurisdiction is the uneasy feeling lest divorce is made so easy and cheap and accessible that it may become common, and that you ought, there- fore, to interpose some form of restriction to prevent a relief, which the law grants and allows, being made available to people who desire to seek its protection. I submit that that is not an argument that can prevail. County Court Judges exercise to-day jurisdiction in many important commercial cases. They are men who, I think, are chosen—I was going to say increasingly—with care and anxiety to see that they perform their duties, which I believe every Lord Chancellor recognises as being not less important, and in some respects not less difficult, and more delicate than the jurisdiction that is exercised by the Judges sitting in the High Court of Justice. The County Court Judge, I submit, in a case of this kind, is a tribunal to whom society may well look for the protection that it is entitled to demand against the rash and improper jurisdiction in divorce.

May I say a word or two in favour of the main provisions of the Bill? Is it right to permit people, where there has been wilful desertion or where they have been separated by order of the Court, from seeking the dissolution of the marriage tie? The arguments against it appear to be based largely upon this—that desertion is capable of remedy, that separation may be healed, that it is possible that the parties might come together if they had time for reflection, and that it is undesirable to snap the whole bond and prevent that reconciliation from taking place. It seems to me that all these arguments apply with equal force to the act of adultery. In truth, I think that the act of adultery is the gravest breach of the marriage law that is known. It is, after all, only a breach of the main provisions of the marriage contract. But wilful desertion, of the kind of which evidence was furnished from time to time before the Commission, is not a breach of one of the provisions of the contract; it is the complete abandonment and cancellation of the whole bond. It refuses to honour a single one of its obligations. The party who deserts under these conditions intends, as far as he is concerned, that the marriage shall be set at nought, and he leaves the unfortunate partner—too often a woman—to struggle along as best she can to maintain the home and the family that he has deserted.

The cruelty of this was felt by the members signing the Minority Report, and I should like to say—if the most rev.

Primate will permit me that, as this Bill shows, I find myself unable to agree with the Report that stood over his name: yet it was impossible to read it without recognising that the people who signed that Report were both conscious of the ills and the hardships of the present system, and were genuinely and sincerely anxious to treat them with as sympathetic a consideration as they thought their duty permitted. The consequence is that you will find that in the Minority Report there is an agreement with the provision that, on absence for seven years without any communication, the party deserted should be at liberty to apply for an order treating the deserting spouse as dead and that then re-marriage should be possible. Between that provision and the provisions of this Bill it is nothing but a matter of degree. I agree that it may be regarded as a great degree, but it is only a matter of degree. If instead of "seven" years "five" had been introduced as the period within which desertion should entitle the deserted party to assume death, the only difference then would be that in the case where the deserted person had heard of the spouse who had gone away they could not get relief, and in the case where they had not heard, they could.

As for collusion, collusion could be established just as readily under that as under the provisions of this Bill. Whatever law is drawn, whatever provisions are made, I do not believe it is ever possible, when you are dealing with matrimonial offences, to prevent collusion between the parties. If both parties are struggling to get free of the bond, they will devise some means, if they have the wealth, by which the bond can be loosened. The best evidence of that is the account which I gave to your Lordships just now of what does, in fact, happen under the present law. It might be suggested that this provision, as it tends to give a further opportunity for loosening the marriage tie, or rather untying it, will tend to disregard of marriage and to an increase of immorality. It is not, I think, unworthy of notice that the same argument was used against the Bill of 1857. There are people who undoubtedly think that any attempts to loosen the ties of marriage can only have deplorable results, and who have attributed to the Act of 1857 results which certainly did not flow from its clauses.

Upon this, I think that a quotation which is to be found in the Commissioners' Reports is worthy of repetition. It is an extract from the work of the late Mr. W. H. Lecky, and this is what he said— I do not believe that there is any real reason to think that the standard of domestic morals in England has been impaired by the strictly limited right of divorce which was granted by the Act of 1857. And he concludes in these significant words— On the whole, it seems to me that the signs of increasing moral laxity in England are more apparent in other directions—in increased worldliness and hardness, and the craving for wealth and pleasure among the young; in the increased social influence of dishonestly acquired money; in the frequency, the cynicism, and the success of gross instances of political profligacy. I find it difficult to see why, if that be true of the provisions found in the Act of 1857, it should not be equally true if this measure which I ask your Lordships to approve is passed to-day.

But we have something more than mere speculation to go upon in this matter. Reference is not infrequently made to the conditions of divorce in the United States of America. I think it is difficult to compare conditions here with conditions there, because, as all your Lordships know, marriage law there is a matter of State law and it changes from State to State. You may find States where both the law and its administration are lax; you will find others, as the State of New York, where it is very strict. It seems to me that we can find a nearer and a closer parallel at home. When you pass the invisible border that separates England from the northern part of Great Britain you pass into a country where wilful desertion for a period of four years has for 350 years been a good cause for divorce. Since the year 1571 in Scotland that has been the law. And I would ask if there is any member of your Lordships' House who would be prepared to say that the obligations of matrimony were more rashly undertaken in Scotland or less faithfully fulfilled than they are here—that married life and the sanctity of the marriage tie is in all respects less honoured and less observed in that country than in this.

And yet not only is divorce obtainable in Scotland for four years, compared with five in my Bill, but the expense is a triviality. I have heard (though of this I cannot speak with any confidence) that it can be obtained for so small a sum as a £5 note. I do think, if parallels are to be instituted, if comparisons are to be made, that the proper people to compare are the people who are close at our doors, the people who are as much part of ourselves as the two halves of the kingdom are part of one whole. And unless it can be found that some dangerous and prejudicial result has happened from the existence and operation of that law in Scotland for that period of time, I would ask your Lordships what is the reason why people should be denied here the opportunities that they possess there.

I know that there are many people who dislike the whole scheme and character of such legislation as this Bill proposes. I recognise the earnestness and the sincerity of their opposition, and I regard it as the more unfortunate because they are seeking, exactly as those who support this measure are seeking, to do the things that they really believe to be best for the purpose of enforcing a high standard of morality in this country—making marriage an honourable and a sacred institution, and preserving to the utmost of their power the holiness of family life. There are, I know, others who feel themselves unable even to consider such a measure, for reasons other than those of social expediency. They feel that to sanction any extension of the laws relating to divorce is to deny some high principle of faith which admits of no argument.

I recognise and I reverence all such views. But I would with the deepest respect ask those who hold them to consider whether it is not possible that in the past the Church has, by too rigid an adherence to formula and to textual tradition, driven into the wilderness of doubt and indifference numbers of troubled people who would gladly have found shelter beneath her shadow and comfort within her creeds. And I would ask those who oppose this measure to remember that unqualified opposition upon this question condemns to a life of lonely misery or of shame numbers of unhappy women, and denies to men—many of whom have stumbled on the very threshold of their marriage—the pleasure of a woman's society honestly enjoyed, and the pride in children lawfully begotten.

Moved, That the Bill be now read 2^a.—(Lord Buckmaster.)

LORD PARMOOR

My Lords, I rise to move that this Bill be read a Second time this day six months. I desire at the outset to pay my tribute to the sincerity of the noble and learned Lord, and I certainly shall not question that he moved the Bill from the highest motives, not only as regards what he called the sanctity of marriage but also as regards social and moral expediency. But my objection takes two forms. I am opposed to the noble and learned Lord on fundamental questions of principle which I shall explain to your Lordships a little later; and I also think that the inference of fact which he has drawn—namely, the inference that if you granted this extension of the divorce law you would improve the conditions of married life—is not only not justified, but that one might expect exactly the contrary result.

Before coming, however, to that question and to matters of principle, I should like to deal with the speech that the noble and learned Lord has made. If I may say so with great submission, I should quote the great mass of his speech in favour of the Motion that this Bill should not be read until this day six months. That is a strong thing to say, but I desire shortly to analyse the statements of the noble and learned lord in order to make that contention accurate. I understood Lord Buckmaster to say that he was here in support of the Majority Report of the Royal Commission. Now, there is a complete answer to that, and one which to my mind cannot be gainsaid. In the first place, although he thought that this was a proper attitude to take up, he does not purport by his Bill to deal with the reform as regards our marriage and divorce laws which the Majority Report suggested. I join very strong issue on that point. I use the noble and learned Lord's own expression. He said that the subject should not be dealt with as a whole. My answer to him is that if you are going to deal with a great principle of this kind, a matter of fundamental importance as regards the morality and social life of this country, you ought to deal with it as a whole. It is not a matter with which you ought to deal in selected portions, leaving open—as I will show in a moment—the great mass of objections to the existing law to which the noble and learned Lord himself referred in the course of his speech.

The two matters with which the noble and learned Lord purports to deal he deals with not only in a way inconsistent with the proposal of the Majority Report of the Royal Commission, but, under one head at any rate, in a way that, as I understand the Report of the majority of the Royal Commission, it condemns his proposal. Perhaps I may deal with that in the first instance. I myself am certainly one of those who would desire any proper measure of reform in order to give equality of opportunity and access for divorce purposes to the rich and to the poor. I think that any distinction between rich and poor in legal matters is to be avoided as in itself neither right nor just. But that is only half the proposition. The poor man is not only entitled to an easy access, but he is entitled to easy access to a Court of the same quality as that which is open to the rich man. And the late Lord Gorell, whose experience in this matter I agree was unequalled, laid the greatest stress on the point that it was not sufficient to give easy access to a Court unless the quality of the Court was properly comparable, whether the access was by the rich or by the poor.

The majority of the Royal Commission, so far from agreeing with the noble and learned Lord, considered carefully the proposition with regard to County Court Judges and rejected it; rejecting it on the very ground to which I am calling attention—namely, that this would give the poor man a Court of a less good quality than that which was open to his richer neighbour. I agree. I think that the quality of the Court, whether a man is rich or is poor, ought to be equal, and open to both. What was it that Lord Gorell suggested? I believe it was his own scheme. He did not suggest what we find in this Bill. He suggested that you should have the circuit areas, and that within those circuit areas you should have a Judge of the High Court; although he also said that you might select out of the various County Court Judges some of special experience who might take their turns in the place of His Majesty's Judges of Assize. Therefore I want first of all to make this remark—that, although the noble and learned Lord has come forward purporting to carry out the Majority Report of the Royal Commission on this crucial question, not only has he not followed it, but he has adopted a plan with regard to the Court which is inconsistent with the main principle of Lord Gorell. I protest as much as I can against the notion that a poor man is to be satisfied with a Court of less quality than that which is open to his richer neighbour.

I think I shall have to come back to this first point again, but to my mind the second point is an extremely important one. As the noble and learned Lord has pointed out, the Majority Report did not suggest five years, but three years. That is a matter of vital moment. I can understand why the noble and learned Lord suggests five years; he may think to get rid of a certain amount of friction, and to bring in the Scottish precedent. I am going to deal with the Scottish precedent when I come to that point of my argument. But what is the effect of a five years term? I am altogether against divorce being allowed for desertion. I will deal with that as a matter of principle by and by; but if you are going to allow it, the stress and strain either on the woman or on the man, as regards economics or as regards morality, is in the early stages of the desertion; and what the noble and learned Lord would say is this, You are to leave for five years the party—who, according to his view, is suffering from these various disabilities—in an atmosphere of what I may call a continuing immoral mist. My own point of view is that you ought not to have desertion at all. But I am justified in pointing out that if you have desertion, as in many codes on the Continent and elsewhere—desertion for a year—you run the risk of having no safeguards at all; whereas if on the other hand you have an extended time, such as the noble Lord suggests, you do an infinite amount of harm during the period of suspense, which in his case he suggests should be five years.

Let me deal a little further with the noble Lord's argument. I do not at all question the history which he gave us of divorce law in this country. I entirely agree with him—it was stated at the time—that the Act of 1857 did not introduce any new principle, but only introduced a more effective procedure. It has always been quoted, not in favour of extending the reasons for divorce, but as a ground for keeping them within their existing limits, because it has been pointed out that it is a mistake, though it has often been argued, to suppose that any such extension was made in the Act of 1857. What does the noble Lord say? He does not propose in his Bill the reform of existing procedure at all. I ask you to bear that in mind. Yet he says this, that the jurisdiction as at present exercised in cases of desertion is a farcical jurisdiction, leading, as he knew from his own experience, to nothing except collusion.

LORD BUCKMASTER

I said that of restitution of conjugal rights—a different thing altogether.

LORD PARMOOR

I do not think it matters for the purpose of my argument whether it was restitution of conjugal rights or not. What the noble Lord said was that you had a farcical jurisdiction which led to collusion, because at the present time after a period of desertion, if you did not comply with an order for restitution of conjugal rights, then the woman who proves adultery becomes entitled as of right to a decree of divorce. I will refer for a moment to a very learned Judge who appreciated what was going on. The point was this, that as regards the incident of desertion, which is the first incident on the road to divorce, the jurisdiction exercised was farcical and led to nothing but instances of collusion. That is exactly the objection, as I want to point out a little further on, which I am taking to the proposal in the Bill of the noble Lord. I believe there would be nothing but collusion as regards divorce proceedings if you adopt the ground of desertion as a reason for allowing divorce; and in order to show how exactly I agree with the noble Lord on this point I take a sentence from the evidence of Mr. Justice Bargrave Deane, who was for a considerable time, as your Lordships know, a Judge in the Probate, Divorce, and Admiralty Division— So now if two people choose they can establish without any wrongdoing, and by the easiest collusion, a decree of desertion. I quite agree. I do not believe there is the smallest difficulty if people like to collude, in obtaining a decree for desertion, which the noble Lord desires to make a foundation for a decree in divorce proceedings. More than that—although I do not wish to rely upon the particular words—Mr. Barnard, who was a lawyer of the greatest experience in divorce proceedings, said— I think if you have divorce by desertion, it is practically coming to divorce by consent. I do not want to dwell upon the actual words, but as regards their deeper meaning I am convinced that he was right—namely, that if you allow a divorce for desertion only you can have a divorce by collusion of the parties, and there is no effective remedy or safeguard which can be possibly devised.

The Bill itself, if I may say so, shows what I say. The noble Lord pointed out that in the second clause of his Bill he eliminated the jurisdiction of the King's Proctor. Lord Desart, I dare say, may speak later on this subject. But why did the noble Lord eliminate that jurisdiction? He said, "I do so because he cannot effectively intervene." You may have collusion so easily arranged that no King's Proctor can have any power to bring this collusive action to the front in order that divorce may ultimately be refused. Therefore, we have upon the face of the Bill itself what, according to my view, in any circumstances is certain to ensue in cases of this kind. You have upon the Bill itself that a decree is to be made absolute in the first instance because, according to the view of the noble Lord, it is hopeless in cases of collusion, where desertion is alleged, for the King's Proctor to intervene.

One other matter as regards the noble Lord's speech. Again I must join issue very strongly with him. He said, if I understood him aright, that desertion was really a greater reason for divorce than adultery. He said adultery interfered with some of the purposes of married life, but that desertion upset the whole fabric of married life. I profoundly differ. I want to say a word or two by and by upon the Christian view of matters of this kind, but I should like to appeal to the conscience of mankind, to the conscience of the world, and to history, and I say that any appeal of that kind which you make will bring you back to this conclusion, that adultery has been treated as before all other matters a crime in married life. It stands on a platform by itself, quite apart from cruelty, desertion, drunkenness, inhumanity, or any other of the suggested reasons which from time to time have been brought forward in favour of divorce.

Then there is one other matter. The noble Lord referred to the presumption of death, and said that because in the Minority Report it was suggested that you might presume death after seven years, this was in itself some admission that the ground of desertion was allowable as a cause for divorce. The two matters are toto cœlo different. One is a question of presumption that the spouse is dead. Of course, if that presumption is properly founded in law, it is obvious that the marriage has come to an end; but to quote that as any justification for allowing divorce on the mere ground of wilful desertion is really, I think, a misunderstanding of the Report of the Minority. I see in his place his Grace the Archbishop who was so much interested in the Report of the Minority, but I am bound to say that, reading the Report several times with the greatest care, as I have, it never occurred to me that the period fixed as a presumption of death could ever be used as any argument for divorce by wilful desertion for a certain period of time.

Then the noble and learned Lord dealt with separation orders. This Bill makes no difference as regards separation orders. If he feels that separation orders are a cause of immorality, or a cause of difficulty as regards our marriage law, by all means let him bring forward any concrete proposal. I am one of those who think that the law as regards separation orders is very unfortunate at the present moment. But what is the good of quoting that in reference to a Bill which does not touch the separation order at all, a Bill which does not suggest any reform as regards the separation order, and a Bill that leaves the difficulty which the noble Lord feels in exactly the same position as it is at the present moment? As the noble Lord has referred to separation orders, I should like to make just one statement. First of all, I think the true reading of the evidence is that separation orders have not led to immorality or inconvenience as regards the relationship between persons who have been married, and I bear in mind—although I have not the reference here I think I am right—that a letter was written, if I recollect correctly, to 141 clerks to justices asking whether in their opinion the separation order had led to immorality or not. Of these, 104 answered in the negative. That is very strong evidence. I have heard from numerous magistrates who have had great experience in this question that in their opinion no immorality is conduced to by separation orders where the jurisdiction is properly exercised.

Perhaps I may quote an example. This morning I had a message sent me by a magistrate—I do not think I ought to say from which learned magistrate in London it comes—asking me whether, if this question of separation orders was raised, I would give the illustration of his Court, because he is a profound disbelieve in this doctrine of immorality consequent on separation orders. What were the statistics? These were statistics given for a period of a year. There were 414 applications; 381 of them were dealt with by the missionary of the Court, and the people went away satisfied and reconciled. This is a matter which is constantly misunderstood. The number of separation orders is quoted, and it is forgotten that in a great many of them there is no separation order in the true sense at all. The parties come and are reconciled, as is most proper, by the Court missionary, and nothing further is heard of the procedure.

His Grace will know how these matters are dealt with in evidence in the Report. In this case, which I give as a good illustration, 92 per cent. of the applicants were reconciled there and then. That is the effect of the separation order being only for a period of time, and not being permanent. I am bound to say that in my own opinion there is no analogy whatever between the decree of divorce and a separation order, and, as was pointed out, there are cases dealing with this matter with which lawyers will be familiar. It has been stated that there is often a confusion between a maintenance order and a separation order—a maintenance order to which a person is entitled, and a separation order which is a different forum of order altogether. I think it was pointed out in the Court of Appeal that a separation order ought not to be given where only a maintenance order is required, and the real moral and purport of the. evidence given before the Divorce Commission was to show that the whole effect of separation orders had been enormously exaggerated, and that the suggestion that they led to immorality because the two parties were kept apart, not permanently—they were generally reconciled afterwards—but kept apart for a time, was not sustained by the evidence given by those who had knowledge and cognisance of questions of this kind. I feel I ought almost to apologise to the noble and learned Lord for having spent so much time in criticising his statement.

I really think in regard to his arguments in favour of the Bill he has now brought before Your Lordships that, first of all, a great mass of what he said was not really relevant, and, secondly, that his criticisms of the marriage law, so far as they are justified, are not touched by this Bill at all. Before coming to one or two matters of principle, on which I differ from the noble Lord, I should like to cite the opinion of the noble Viscount, Lord Mersey. The noble and learned Lord, I think, is not present in your Lordships' House to-night, but I may quote what I know his views to be. He has had enormous experience, and he is not in favour of this Bill. He will vote against it if he is here. What he does feel, and what I feel very strongly—and I think there we agree with the noble Lord (Lord Buckmaster)—is that what you want to do to secure increased morality as regards these matters of divorce, is not to begin where the noble Lord does but to begin at a different stage. You want a reform the marriage law itself. You do not want to make provision for cases where the marriage law is broken, but to introduce a reform of the marriage law itself and to introduce proper precautions against hasty and ill-considered marriages.

Now let me say one or two words on the question of principle. I do not deny for a moment that the noble and learned Lord has the highest view of what is very properly called the sanctity of marriage, but what I do say is this, that those who are supporting the principle of desertion as a cause for divorce have fundamentally, in many respects a different idea of marriage from that which I, at any rate, should urge your Lordships is the right view. I think that they regard marriage primarily as a contract between the two parties, and when they are approaching the marriage law they are always considering whether those two parties have made a bad bargain or not, and if the parties have made a bad bargain they are always saying, "Oh, poor people!; cannot we release them?" The answer is this. If the principle of the indissolubility of marriage is right as a general principle—and I do not believe any one would quarrel with that—you must maintain that, as you maintain other principles, in spite of individual hardship in special cases. There is no principle of any moral value that does not imply hardships in particular and individual cases, and the worst, the most casuistical, argument is that because in particular cases you may have special hardship, that is a reason for an attack on the principle itself.

I should like to define the principle in an entirely different way, if I may. It is quite true that the contract is an element of marriage. You must have the consent of the parties. Marriage is distinct from any other contract, and is distinct in this way—it constitutes a new status as between the parties; it constitutes what I should like to call, if I do not in any way go against the views of the noble Lord, a new religious status between the parties. And what we have to consider is whether that religious status is to be preserved as far as possible as an indissoluble relationship between the parties in the interests of public and private morality. I think all history and all statistics give only one answer to that question. It is absolutely essential, if you are to have purity of married life, purity of home life, proper example to children, that you should maintain the indissolubility of the marriage status, on which the whole purity and morality of home life and the life of the children depend. You cannot have any compromise upon a matter of this kind. We have been told that we are to have a new life for our children and grandchildren as the result of our exertions in the great war. I say nothing upon that point, but I do say this, that the greatest gift that we of this generation can give to our children and grand-children is to maintain the purity and the religious status of our married life, to hand it down safeguarded and secure as it is at the present moment. It is useless to talk about the future unless we are prepared to take our part in sacrifice at the moment. Of course, an unhappy marriage means service and duty. It is right that in those cases there should be service and duty. Morality demands it; home life is based upon it.

Let me say one or two words as regards the historical outlook. I will not go into the Scottish precedent, except to say this—if it is a precedent at all—that in proportion to population, divorce there is about twice as common as it is in England. Probably that is a comparatively small matter. In America, where, we know, divorce is easy, you have seventy-three divorces per 100,000 of population, as against two divorces per 100,000 in this country. Is that an argument for increasing the facility for divorce? Of course, it is an argument to give rest and contentment to certain individuals; but if you ask me whether it is an argument in favour of this Bill, I say history has established one certain truth—that in proportion to facility for divorce, so do you get a restlessness, unhappiness, immorality as regards married life and the married state. You can connect the two almost completely if you deal carefully with these historical results in the different countries. We know what was said of the corruption, for instance, as regards married life in the early days of the Roman Empire. What did that mean? There never was a people of greater discipline and of greater power than the Roman people while they held, as they did in an extraordinary degree, the purity and sanctity of homelife. That was broken up, and what followed? The demoralisation of the whole Roman character, the whole Roman life. And as I follow these matters—I do not want to be too discursive or to be too positive—but as I follow principle in history it is not what the noble Lord has said, that you get relief by measures of this kind. You increase restlessness of the married, you make them less happy, you make them less content, and, without dealing with the evil, you do undermine what the noble Lord rightly calls the sanctity of the married status.

Perhaps your Lordships will allow me, in conclusion, to say one word from a different standpoint. The noble Lord, towards the end of his speech, referred in very kindly and generous language to Christian religions matters. If I may say so, and if he will not think me impertinent, I agree with all that he said. But he forgot one factor; he forgot that some of us who are Christians feel that we are bound to obey Christian teaching on this marriage question. And I want to make that position strong from the layman's point of view. I have the honour of being Chairman of the House of Laymen of the Province of Canterbury, and I know that I am expressing their view—because we have had discussions again and again—I am expressing their view that you cannot put on one side Christian teaching when you are dealing with this question of divorce and marriage. I see the right rev. Prelate the Bishop of Ely present, and, if he will forgive me for saying so. I copied a passage out of the Majority Report connected with his name, because it exactly expresses my own views upon this topic. He says that he is of opinion that— while much remains uncertain as to the teaching of Christ as to divorce, there is one conclusion absolutely beyond doubt—namely, that there is no version of Christ's teaching, no interpretation of any version of Christ's teaching, which does not forbid divorce except on the one and only ground of adultery. That, I believe, is the Christian teaching. At any rate, there are thousands and hundreds of thousands of Christian men in this country who not only believe that that is the Christian teaching, but protest with the utmost of their power against any proposal which in their opinion is inconsistent with the words of Christ Himself upon the question of marriage.

At the time of the Royal Commission, 61 per cent. of the married people of this country had been married in the Church of England. Every one of those, in the face of the congregation, promised to retain the marriage relationship "until death us shall part." Every one of them has proclaimed in public the indissolubility, except for the one cause of adultery, of the marriage contract. Will your Lordships, in these circumstances, proceed with the Bill which my noble friend has introduced? I have applied my criticism to it. I want to say one further word. Is this a subject which we can properly consider at a time like the present? Is it right that a Bill should be introduced which deals with only one corner of a very great and complex question? I protest as well as I can against proceeding with this Bill at the present time. If it is necessary to meet at any rate some of the difficulties to which the noble Lord has referred, if it is right to give greater opportunity as regards access to our Courts—and I agree with him in that—if there is reason for reform in some of these matters as regards our divorce law, the only way is to proceed with one Bill, including everything that is necessary to settle the whole question. Nothing can be worse than a series of Bills introduced as regards a portion only of this question; so that instead of us looking upon the law of marriage as settled and determined, it shall be uncertain and indeterminate owing to Bills of this character. My Lords, I move that this Bill be read a second time this day six months.

Amendment moved—

Leave out the word "now" and insert at the end of the Motion the words "this day six months."—(Lord Parmoor.)

THE LORD ARCHBISHOP OF YORK

My Lords, I think that your Lordships will expect me to say a few words on this question because, as the noble Lord who introduced it has reminded you, I happened to be a member of the Royal Commission to which he referred and from whose Report. he so frequently quoted. I wish here to pay tribute to the immense learning and skill with which the late Lord Gorell, whose name I am sure will always be remembered with admiration in this House, conducted our proceedings, and if some of us were unable wholly to follow his guidance, we were always impressed by the weight of his learning and the fervour of his desire to promote the common good. I have done my best in support of his son—who has given his life for the country at this moving time—to press upon your Lordships the desirability of introducing legislation which would cover the matters upon which the majority and the minority of that Commission were agreed, but the Bill which the noble Lord has introduced is of a somewhat different and more drastic character.

Let me say at once that the Church of England seems to me most clearly, in the solemn rite in accordance with which, as you have been reminded, 60 per cent. of the marriages in this country have taken place, definitely to regard the marriage as a relationship and status which is terminable only by the death of one of the parties. In proclaiming that standard, and in imposing upon her sons and daughters that conception of married life, with its immense responsibilities, I believe firmly that the Church is following the mind and will of her Divine Founder and Lord, and that in His judgment marriage was intended to be, according to the Divine Will, an indissoluble union. But I quite recognise that not all subjects of the State are Christians. I am willing to recognise that it may not be always, under all circumstances of public opinion or moral condition, possible for the State to impose and to maintain by legislation the highest Christian standard. I think that I am able—and it is certainly what I would desire here to do—to argue this matter entirely from the point of view of its bearing upon the general welfare of the whole community. It is upon that plane, and not on religious allegiance, which remains in my own mind high and clear—on the plane of the highest welfare of the community—that I would desire to speak to your Lordships this evening.

From the public point of view, it is of course fundamental to the whole subject that we should steadily disregard the conception of marriage and the marriage tie as one that concerns the private relationships of individuals. These may be happy, these may be hard, but that is a matter for individuals themselves. It is the business of the State to refuse to regard the marriage contract as one concerning the happiness or hardship of individuals, but to regard it in its bearings as a matter which vitally concerns the whole Commonwealth, and the State therefore insists that marriage shall be public and safeguarded with every possible care, and that everything shall be done to remind persons who enter upon matrimony that they are undertaking a relationship not only, as I believe, of profound religious responsibility, but also of a direct concern to the Commonwealth as a whole.

I do not propose to go into the circumstances which lead to the Act of 1857, or to discuss here and now whether that Act has increased or decreased the marital constancy or the morality of the country. I think that there are many eminent lawyers who have administered the Act of 1857 who, if they were pressed, would undoubtedly say that in their judgment it was responsible for a very great lowering of the marriage standard, and dissolution of the convictions upon which marriage ought to rest. But at least that Act took the position that the permanence of the marriage tie, in the words of the First Royal Commission of 1853, was "a thing essential to the best interests of society, and ought as far as possible in every way to be secured," and made, as has been pointed out, rather a difference of procedure than of principle; it permitted adultery, and adultery alone, to be a cause which would enable married life to come to an end and permit the parties to enter into a new relationship.

Since then the State has steadily refused to add to the causes of divorce with permission to remarry, and I think that what the noble Lord has just said will commend itself to the judgment of your Lordships, that there is a deep and fundamental difference between that rupture of married life and either desertion or any of those other causes for whose sake, in many quarters, it is urged that there should be a further relaxation of the marriage law. Adultery means the deliberate and wilful transfer of the physical union of man and wife which has always been regarded as necessary to its consummation, and it is plain that the wilful and deliberate transfer of that symbol and seal of the unity which ought to exist in mind and soul to another person—that such an act of treachery to the whole meaning and significance of married life—stands, and I hope always will stand, by itself in the judgment and the conscience of mankind.

But the question that is now raised by the subject of the Bill of the noble Lord is whether the State is prepared to add to that quite unique cause other causes permitting divorce with permission to re-marry. The noble Lord, in a speech which, if I may say so, I found most interesting and moderate and persuasive in its tone and manner indicated, or rather pleaded, that his measure was one which only dealt with the cause of desertion and all that desertion means. The first criticism which I would offer upon his Bill is that, unless I misunderstand it, that claim is not substantiated by the Bill itself, because—subject to his correction—it seems to me that subsection (1) of Clause 1 indirectly, but quite definitely, does introduce other causes of divorce as entitling the parties to release. Your Lordships will notice that the words are— In any ease where married persons have been separated from each other by wilful desertion of either spouse, or by any order of any Court, and have remained separated for a continuous period of not less than five years, either party may apply to the Court for a decree dissolving the marriage. But you are aware that by the Acts, one of which I think he quoted, of 1895 and 1902 the magistrates are permitted in the case of husbands to give separation orders for the causes of cruelty and habitual drunkenness as well as of neglect to maintain, and in the case of a wife for the cause of habitual drunkenness only. Therefore separation orders given by these Courts of summary jurisdiction are given not for wilful separation only but for cruelty and drunkenness; and therefore, according to the noble Lord's Bill, it would be open for any person who had obtained an order in a Court of summary jurisdiction on the ground of the habitual drunkenness or cruelty of the other party to remain separate from that party for five years and then to obtain a divorce—not, your Lordships will notice, on the ground of wilful desertion but on the ground of cruelty and drunkenness. In other words, the noble Lord's Bill not directly and openly but, if I may say so, by a side door, brings in not only wilful desertion but also drunkenness and cruelty as permissible causes of divorce in this country. I am rather surprised that the matter was intorduced in that side way, but I am not alto- gether surprised that it should be so, because I feel more and more strongly that there are hardly any reasons which can be urged in favour of including wilful desertion as a cause of divorce which cannot even more poperfully and impressively be urged on behalf of drunkenness or cruelty or other causes. And yet if your Lordships will take the trouble to read the immense amount of expert and careful evidence collected by the Royal Commission, on which I sat, with reard to drunkenness and cruelty, I think you will have reason to see that there was some justification for the noble Lord in not expressly and definitely putting these causes as well as that of wilful desertion before your Lordships in this Bill.

But may I also point out on this part of my criticism of the Bill that the effect would be that in this matter, if you happen to be poor, and therefore have recourse to a Court of summary jurisdiction, you could after waiting for five years get divorce for drunkenness or cruelty; but if you happen to be rich and do not frequent Courts of summary jurisdiction for orders of that kind it is a relief which you would be denied. I do not think that this makes for that equality between rich and poor which formed a part of the noble Lord's argument. On this, what I wish to do is to call your Lordships' attention to a point which was made in the noble Lord's speech, that the first clause indirectly, but not less really, brings in drunkenness and immorality followed by five years of living apart as furnishing a good ground for divorce.

The second criticism that I would make on this matter is, Have these orders of separation the weight that is necessary to support the claim that, if they were followed by five years of mutual absence, they would justify divorce and re-marriage? It is important to press this point. I think Lord Parmoor has already pointed out that the separation orders have as a rule, certainly up to within a few years ago, been granted when all that was wanted was some immediate protection or maintenance from a husband or wife who had seriously quarrelled and separated. As soon as it was pointed out that a maintenance order was one thing and a separation order a totally different thing, the number of separation orders at once went down from something like 7,000 in 1907 to less than 5,000 in 1910. It was borne out by evidence from all parts of the country that there is not only the greatest variety in the reasons which led magistrates to give separation orders, but the greatest possible difference in the care with which they were given. It was quoted to us, I remember, from one of the Police-courts that the number of separation orders had nearly doubled since a new magistrate assumed control, because he was pleased to take what he called a chivalrous view of marriage. And therefore—this is what I ask your Lordships to notice—the Majority Report, to which the noble Lord referred in terms of so much agreement and praise, does not venture to give that weight and importance to these Courts of summary jurisdiction and to their decrees which the noble Lord gives in his Bill. For the majority—not the minority—recommends that the power of these Courts to make orders which have the permanent effect of judicial separation should be abolished, and that the exercise of jurisdiction in the case of separation and maintenance orders which are only necessary for the immediate protection or support of the party should not be allowed to have the effect of permanent separation without application to the High Court. The noble Lord, in his Bill, is giving the effect of a full separation order, to be Followed automatically after an absence of five years by a divorce, to decrees obtained from the Courts in a manner so uncertain and so varied that the majority of the Royal Commission themselves have decided that that jurisdiction must be seriously curtailed, and that when permanent separation is desired the application should be taken to the High Court. In view of this I think that your Lordships should not give assent to the first subsection of the first clause of the Bill.

In the third place, I would like to call attention once again, as the noble and learned Lord, Lord Parmoor, has done, to the provisions of Clause 4, under which, on application that the party has no means to take the case to the High Court, he or she should be allowed to take it to the County Court, and that the County Court in such a case should have the full rights of the High Court. I desire to speak with the greatest possible respect, and indeed gratitude, of the public services which are rendered in every part of the county by the County Court Judges. Nobody who knows anything of the life of the people can doubt for a moment that they have a very great and a very beneficent part in ordering, in arranging, in harmonising the disputes of the people. But I would again remind your Lordships that the Majority Report—though led by Lord Gorell, who himself made the Motion in 1909 to which the noble Lord referred, and who approached the matter with every possible sympathy and respect for the County Court Judges—came to the conclusion that it was not possible to entrust responsibilities of so grave and important a character to the County Courts as such.

Your Lordships will remember that the Majority Report recommended that the County Court Judges as such should not be regarded as competent Judges, but that a certain number of them should be selected and receive a Commission to act as Judges of the High Court for the purpose of hearing these cases locally. The reasons were not in any sense the incompetence of the County Court Judges, but the fact that if you multiply Courts you inevitably multiply the different interpretations of law, the different principles upon which law is administered. If there is one subject more than another on which it is of vital importance that there should be one uniform principle, spirit, and interpretation of the law, it is the married life of the people; and if you were to multiply Courts all over, to entrust the cases to the County Court Judges everywhere, you would inevitably get such a variety of interpretations of the law as would very soon produce something like the chaos which the citizens of the United States of America at present so deeply lament. I will not refer to other disqualifications of the County Courts, such as that they are incapable of procuring evidence from abroad—a matter which will be of very great importance after the war is over; or that it is most important in a matter of this kind that there should be a competent Bar in attendance upon any Court which deals with the matter. But what I would urge upon your Lordships is to recognise that Clause 4 goes very far beyond even what the Majority Report recommended in entrusting powers of this kind to Courts so numerous and so varied as the County Courts of the country.

I think it was said by the noble and learned Lord that it was competent for any County Court Judge to deal with a matter of fact: but I hope it is not super- fluous to point out—this is on the point of the County Court Judge being amply able to discuss any question of fact—that in these matrimonial cases, as nobody knows better than the noble and learned Lord, you have to consider not only questions of fact which are capable of easy proof, but you have to deal with interpretations given by the Judge upon the meaning of the facts, and that very specially in regard to malice in desertion, or cruelty, or degrees of drunkenness.

I do not wish to speak too long about it, but may I point out that there is another criticism—which I think has already been made by Lord Parmoor on this part of the Bill—namely, that it is treating the poor man's marriage as if it were more a subject for an inferior Court than the marriage of a man of larger means. The consistent course, I submit, is to say either that all divorces should be taken by these local Courts, or to say that facilities shall be given in the matter of procedure and expense enabling all cases to be taken to the High Court. For myself, I have always felt that on the point of law and civic rights it was unfair to make any distinction in this matter between the rich and the poor, or, because you objected to divorce in principle, to make it impossible, by penalising him on grounds of expense, for a citizen, merely because he was too poor, to avail himself of the law to which his country entitles him to have recourse. In my judgment the proper course is, if that be so, to do everything you can to make it possible for the poor man to bring his case to the High Court—whether it be in London, or, by arrangement, in different parts of the country—where his marriage can receive precisely the same kind of careful treatment as the marriage of the most wealthy citizen. Therefore I urge that your Lordships should hesitate before giving assent, even on Second Reading, to Clause 4 of the noble and learned Lord's Bill.

I come now to the main purpose of the Bill, at any rate what I think the noble and learned Lord would desire to regard as the main purpose of his Bill—namely, the inclusion of wilful desertion as a permissible cause of divorce. From a word which fell from him at the beginning of his speech think that he, like many—certainly like the noble and learned Lord who I do not think is here, but who at one time sat upon the woolsack, Lord Loreburn—was immensely impressed by the number of these separation orders, and he seemed to show that, like others, he was disposed to think that the existence of this immense number of orders argued the existence of a great number of miserable, divided persons who were permanently alienated from one another, but who were yet prevented from starting a new life in a new home. I think the evidence before the Commission conclusively proved that that vision is a nightmare; that it is not based upon fact; that by far the largest number of separation orders that are taken out are in force for only a very short time, and that often the orders are never taken up at all. If I remember rightly, in the case of one of the cities in Yorkshire the evidence was that there were no less than 4,000 separation orders granted but never taken up. Certainly on the average 50 per cent. of these separation orders are never made effective, because the parties come together again. I think we should all feel that it was most desirable that these parties should come together again.

Those of us who know something of the circumstances of life out of which these differences arise, know that the differences are often due to some temporary outbreak of passion, to some temporary drunkenness, or to some other temporary circumstance, and that in passion or in fear one or other of the parties goes to the nearest Court and applies for an order of maintenance and of protection; and then, after the lapse of a short time, that wonderful force of custom, to which Robert Louis Stevenson refers in one of his most striking essays—the effect of two people regarding one another as really belonging to each other for better or for worse—comes over them, and they meet and say, "Let bygones be bygones, and let us start the old home again in the old way." There is not one of us who does not feel that that is desirable, and we are glad to know that in the case of such a preponderating number of separation orders this is what happens. But see the difference if the noble Lord's Bill became law. Then there would be the greatest possible inducement for these people to make this temporary breakdown of their married life permanent. They would feel, "Now we have drifted apart, and if we can only keep apart for five years we shall be able to marry again and set up another home." The noble Lord would remove the inducement to come together again which at present operates and which we feel to be so important for the homes of our people.

On the merits of this matter I say unfeignedly that I feel with all my heart the reality of the hardships with which the noble Lord is seeking to deal. Your Lordships will not suppose that any one who has had the opportunities which have been given to me could have failed to feel to the very depths of his being the hardship to which a deserted wife and sometimes a deserted husband is exposed. I have tried to see many of them through their anxious and difficult times. There is no one in this House who knows better how bitter the anguish sometimes must be. But we have here to remember that in trying to meet this case of real and exceptional hardship you may bring in, and enable them to avail themselves of your sentiment and of your pity, a large number of persons who are entitled to neither—persons who marry recklessly, and quarrel, and then deliberately seek some device by which they can set up a new home and a new marriage elsewhere. It is, I believe, impossible to pass a measure such as this which can be restricted to the hard cases. It must be extended to all, and by one means or another, or by mutual arrangement, they will avail themselves of the law, and I do not think it can be denied, nor has the noble Lord attempted to deny, that in this matter some kind of collusion is always possible.

We have been told about the case of Scotland, and I should like to deal with that for one moment. What I would ask you to notice is this, that in Scotland the separation must be not only wilful but malicious, and I understand the Court takes the greatest possible care in regard to proof that the desertion really is of that character; but what is more important is that whatever care is taken in the administration of the law in Scotland is due to one cause, and that is that every such application comes before the High Court itself. It would be a totally different thing in Scotland if you had the arrangement which this Bill proposes—namely, that this question of separation shall be dealt with by a score of local Courts throughout the country. Whatever measure of care in this matter has been exercised in Scotland is largely due to the fact that these cases come before the Judges of the High Court, and are treated there by the Bar of that Court.

On the wider question I am not sure that I should so wholly agree with the noble Lord, that when you cross the border you come to people of the same character, disposition, and qualities as those who would be left upon the south side of the border. It is not for me to say on which side of the border the balance of advantage would lie. I claim that in point of character, outlook, tradition, and social environment there is a very great deal of difference between people in Scotland and people in England. But you cannot argue from one country to another, and I think it is impossible to set aside in a matter of this kind the experience, so overwhelming that I need not refer to it in this House—so overwhelming that it is engaging the serious thought of the great bulk of the citizens of America—that in this matter of separation some degree of mutual arrangement may in most cases be taken for granted.

We cannot allow ourselves to be swayed by our remembrance, it may be, of these hard cases so as to bring within a measure which seeks to give them relief, an opportunity for a large number of persons to break up their marriage and home, where the operating cause is not hardships but mutual desire. The noble Lord believes that five years will make a very great difference, but there is no finality in these years. The hardship, as the noble Lord points out, if we are to go by hardship, is often in the first year of the separation. In the Majority Report the suggestion is three years. In Scotland it is four years, and in some countries one year, and there was a prospect not long ago of a Bill coming before Parliament which said that this should apply whenever the parties proved that they were unable to live happily together. The truth is that you cannot isolate these cases of hardship. They must be treated in regard to the welfare of the whole community, and if you cannot isolate these hard cases you cannot isolate this Bill. You must take it in connection with the basis upon which it rests—that if hardship can be proved a remedy ought to be found, and you cannot isolate it from the tendencies of opinion and social custom which are becoming more and more prevalent in our midst.

There is not one of us who does not know perfectly well that one of the most serious results of the great social upheaval of the war is the number of exceedingly lax, casual, and careless marriages. I suppose there never was a time in which there has been a greater laxity, almost levity, in the matter of marriage. That is shown in one sinister way already by the enormous increase in the number of cases that have been brought before the Divorce Court. There is, partly in consequence of this and partly to justify this, a movement among us, of a volume and strength which I do not think we have known before, urging the greatest possible freedom of men and women in their marriage relations. I doubt whether most of us were aware how large were the numbers of educated and refined persons who are being at this present time carried far beyond that conception, that high dignified conception, which the noble Lord professed, and which he feels to be consistent with this Bill. That being so, it seems to me that it is a very serious step at this present time to pass or give a Second Reading to such a Bill as this.

There are tides of passion strengthened by tides of sentiment, sometimes worthy, sometimes unworthy, in their source, which are sweeping along and will press upon barriers that are erected on a purely arbitrary foundation and sweep them past, and there must be—and the State must be prepared for it—there must be a stand upon some ground of principle. So far the State has resolutely adhered to the principle that nothing except the unique case of adultery—whether it be right of wrong in that respect I have my own convictions, but I am not dealing with them—nothing beyond that should justify the rupture of the marriage state. It seems to me that at the present time it is the business of serious and thoughtful citizens rather to do everything that is possible to deepen and impress on the public mind and conscience the immense seriousness of the married relationship, and I ask whether this is likely to be done if it is intimated to many young men and women to whom five years mean very little that, if they will only wait during those five years, at the end they can recover from the consequences of their imprudent marriage.

I think this is a step we ought not to be willing to take. We all have a great hope—I trust it may be founded upon reality—that through this war we shall be brought to some better social order. If I ask the question quietly it is not because I do not feel the force of it most deeply, but is this a time in which we ought to make a beginning of that better order by loosening the foundations of the home and the marriage of the people upon which ultimately it must rest? For these reasons I hope that your Lordships will not give a Second Reading to this Bill.

THE EARL OF DESART

My Lords, I have no intention of detaining your Lordships at any length. The arguments regarding the wider and graver aspects of this proposed alteration, or of any alterarion, of the divorce law have been so fully stated by my noble and learned friend Lord Parmoor, and in the very impressive speech of the most rev. Prelate, that I think I should more usefully serve the purpose of the consideration of this Bill by limiting myself, as far as I can, to the practical effect of it, and how, in my judgment, it would be likely to work.

When you come to consider the alteration of our divorce law there are, I think, always two particular considerations that come to the surface. The first is that if you depart from what I may call the general principle that there can be no divorce in the absence of adultery—there are some other offences in the case of a man, to which I do not refer—you at once are embarked on a very large question as to which, or whether all, of the very cruel cases that occur in matrimonial life should be included as proper subjects to justify dissolution of the marriage tie. The other consideration to which I refer is whether divorce is a privilege or is a right. What I mean by that is whether, assuming one party to a marriage can produce and prove certain facts, that party is entitled to a divorce, or whether there is a further obligation, now imposed by our law, that the party must not be guilty of collusion or of concealment of material facts or of matrimonial offences; because it is quite obvious that according to the manner in which the subject is treated we are in direct relation with the character of the Tribunal by which it should be tried.

If a Court has only to consider whether A or B or C is proved and then the divorce goes as of course, you do not want the experience and the care that you require if a Court has to see not only that these offences are proved prima facie—that is all it would be—but that the petitioner has not concealed material facts, has not committed a matrimonial offence, and has not been guilty of collusion. One requires vigilance; the other only requires the technical knowledge of what has to be proved and established. Therefore, I think both these considerations arise. One arises on the question whether it is advisable to introduce a Bill of this kind, extending to a very limited degree the causes of divorce, as an isolated measure apart from the many other considerations which surround this enormously important question. The other affects the question, which the noble and learned Lord pressed so hard, as to jurisdiction.

I associate myself with the general observations made by the most rev. Prelate about jurisdiction. I do not want to use the word "superior," but I think it is important to have experienced Judges in this work. It is extremely important to have not only an experienced Bar, but an experienced Bar that has attained the complete confidence of the Court before which it practises. I know the work of the Divorce Court in London, and, generally speaking, the members of the Bar there consider themselves almost as officers of the Court and almost regard it as their duty if they represent the petitioner to see that, so far as they know, nothing shall be concealed from the Court which the Judge ought to know. I think also that the officers of the Court—officers accustomed to deal with these things, who know what happens and know the psychology—are of enormous importance, and, for that reason, I have never liked the idea of transferring the jurisdiction of divorce to the County Court.

When I gave evidence before the Royal Commission I made some suggestions in this direction. They were not finally those adopted by the Majority Report, but the general trend of them—and I still believe it would be the best—was that you should bring the Courts to the suitors and not the suitors to the Courts. The truth is that if you go on the question purely of expense the real expense is in connection with the witnesses. There is very little expense outside the witnesses and you get this extraordinary inequality—that whereas a man of moderate means who lives in or near London can get a divorce, the man who lives in Northumberland cannot. But that might have been met either by State assistance as to the expense of witnesses, or by, at certain periods, some of the Judges in the Divorce Court having local centres where they sat for a certain time. But if it were reasonable and practicable as a matter of course, I should still strongly urge that divorce should be tried by Judges of the High Court experienced in that work, and that riches or poverty should make no difference as to the Court of trial. I never could see that there should be any difference on that ground.

Now I should like, with reference to what I have said, to deal very shortly with the proposals in this Bill. There are two contentious ones. The point as to "wilful desertion" is obviously very controversial, because while desertion is, as I recognise, a complete abandonment of the marital duty, you are brought up against the fact that you have to, or ought to, prove that it is wilful. And I cannot for the life of me see how any Court hearing an undefended case for desertion with the ordinary evidence which would be given could decide this. There would be no one for the defence, there would be no cross-examination, there would be no means of the Court to test it, that I can see, at all, unless there were some officer such as the King's Proctor entitled to make inquiries. I do not say what the chances are of his finding things out, but at least there would be some chance, as I know there is. Also there would be, which I also know, the fact that the King's Proctor is a check on collusive or other proceedings. I have often myself said to experienced officials of the Divorce Court, "I really do not think I am any use." And they have said, "I am not sure you do much good, and you may do some harm, but the fact that you are there does a great deal of good." I think there should be somebody to whom the Court should be able to go in all cases to try to find out whether a case is bona fide, and whether there is concealment of material facts.

I am nor sure that in wilful desertion there are not stronger arguments against the retention of the King's Proctor than there are in relation to the way in which he now performs his duty. I will put the case of well-to-do people. For them, desertion is a very easy thing indeed to organise, and I do not see, without information, how it could be detected. Not by the Court. One party—suppose it is the husband—gives his wife enought to live upon for two, three, five years, whatever the period may be, and goes away and lives somewhere else. At the end of that period he comes back, and who can question what has been done? It is said that no harm has resulted in Scotland. I submit that all that it comes to is that the Court has not found out there is harm. I do not see how it can come to any more than that, because they have no means of inquiring, they have no means of testing it; and I do not myself see that there is evidence one way or the other. I am sure they do all they can. I know this very well. I often had the privilege of talking to the late Lord Gorell from time to time, and to his predecessor, Sir Francis Jeune, and I have watched them in Court. I know they took the most meticulous care to try and test every case as far as they could. They always said, "We know we do not find out, and it is a very unsatisfactory thing indeed." And the proof that they were misled on many occasions is that the King's Proctor intervened subsequently and succeeded in his intervention. Consequently in most cases, clearly, the Court had been misled. Further, I am personally absolutely satisfied that the cases in which the King's Proctor intervened form probably but a very small percentage of the cases in which he should have intervened had he been able to get the information. I can see no reason, really, for this being turned, by people so disposed who had the means to do it, into divorce by consent, for it comes to that, I am not suggesting this is a conclusive argument, because if the hardship is sufficiently great, or rather I should put it if the grounds in the public interest are sufficiently great, the fact that there might be cases in which the Court was deceived would not, I think, finally decide the matter against the adoption of the principle of the Bill. But I submit to my noble friend that it does form a reason for the retention of the King's Proctor, rather than for his abolition, as is contemplated by Clause 3 of the Bill.

Now I want to deal with what is really, perhaps, my main reason for voting, as if there is a division I shall vote, against the Second Reading of this Bill. I pointed out, in my opening observations, that once you left adultery as the only cause for divorce, you had to consider what offences or what circumstances should be a justification for divorce. My noble friend Lord Buckmaster has fixed upon desertion and desertion alone, on the ground that desertion more completely breaks up the matrimonial relation than does any other offence. If you come to that, I should like to consider the most difficult and most cruel, the hardest case of all—insanity. There is also a desertion by crime, conviction in long terms, penal servitude. There is also a loathsome and infectious disease. I am not sure that if you are dealing with desertion on that principle you should omit those; I think you should include them. But I am convinced that piecemeal legislation of this kind on this great question is inexpedient and is undesirable. I think if we are to deal with divorce we must deal with it in the light of the Report and the evidence which is before us, and not pick out one subject here or one subject there and put it into a separate compartment.

To show the practical inconvenience, I have not to go further than the fourth section of this Bill; every argument which the noble Lord urged in favour of the County Court jurisdiction applies to the Bill generally, and you would have the extraordinary result, in passing this Bill, that where divorce is for adultery you would not be able to go to the County Court, but where it was desertion you would. You would also have the other absurd result that where the divorce is for adultery there would be an interval of six months, but when there was desertion there would not. I think that on the ground of convenience and on every other ground this subject must be treated as a whole. It raises controversial questions of the gravest character, social and religious, and to pick out one question and deal with it in a little Bill of this kind—to take out this particular subject as an exception from what is, after all, at present a broad general rule, without dealing with other matters that appear to me just as important as desertion and involve just as great cruelty and as great a break-up of the marriage tie as desertion—is not expedient or desirable.

I also cannot help seconding the closing observations in the speech of my noble and learned friend Lord Parmoor, At this moment, when all our thoughts are elsewhere, when much of our time is occupied with other business, it is almost impossible for us to do justice to a subject of this kind, or to consider at rather short notice what ought to be done. I feel, in the observations that I have made, that I have been handicapped by not having had time to think the matter out properly. I have not had the opportunity of referring—or referring in any other than a cursory manner— to the Report, or of considering the evidence that I myself gave. I wish to say that my mind is not in the least made up against the principle of divorce for desertion. I think that the matter requires very careful consideration; but the reason I do not feel able to support this Bill to-night is that I think, standing by itself, it is very inexpedient to amend the law in this way, and that I do not think this is the best time to give such consideration to the Bill as would justify us in sending it forward.

LORD GORELL

My Lords, I shall be as brief as I possibly can, but I feel constrained to take part in this debate. I do so with a sense of difficulty, because though I am fully in sympathy with a great deal of what the noble Lord who moved the Second Reading said, I do not feel able to support his proposals, and, if it be necessary, I shall vote for the noble Lord who has moved the Amendment. But to do so in silence would be to court misunderstanding.

My Lords, it is ten years and more ago since the then President of the Probate, Admiralty, and Divorce Division of the High Court first drew public attention to this question in a very carefully considered judgment on the inconsistencies and anomalies and injustices of our present law of divorce. Subsequently, on his elevation to your Lordships' House, he brought forward a motion as a result of which the Royal Commission was appointed—a great and representative Commission which achieved a rather remarkable measure of agreement. He was unable to gather the fruits of his labour, but the reforms which he had so deeply at heart were carried on by the secretary of the Commission, who was unwilling, where so large a measure of agreement had been reached, that that work should fail, and I think, in moving the Second Reading of the Bill, that the noble Lord hardly laid sufficient emphasis on the amount of agreement that was reached between the majority and the minority of the Royal Commission.

To carry on the reforms insofar as agreement had been reached, the secretary of the Commission moved in this House on July 28, 1914, a Bill which, so far as any Bill on this subject could be said to be non-controversial, was non-controversial; at any rate, it sought to embody in the spirit of agreement the recommendations of both the majority and the minority of the Royal Commission. That Bill was received by your Lordships—I will not say without opposition, because no Bill on this subject has ever lacked that—but at any rate with sympathetic attention. The noble and learned Viscount Lord Haldane, then Lord Chancellor, described it as very moderate and substantially non-controversial. It was withdrawn at the suggestion of the noble Marquess, Lord Salisbury, and of the noble Earl, Lord Derby, who was a member of the Commission, upon the argument that it was then very late in the session, and with the distinct understanding, or at any rate with the distinct intention, that it should be reintroduced in the autumn. Six days later war was declared, and it was obvious that the time was not opportune for dealing with a measure of such importance. The intention on the part of the secretary was postponed, and has now been frustrated.

No one has or should have any opinion to which he himself is not ready to stand. Second-hand opinions, however derived, have little value. But at any rate one has a continuative interest in this matter, and though I should not like to-day necessarily to pledge myself to an advocacy of all the reforms which the late Chairman of the Commission, in his experience, advocated, I should at any rate like to say that supposing this Bill is not read a second time, and that no Government action takes place upon the agreement reached by the two halves of the Commission, one would hope at a more favourable time to revive those proposals for reform. But, as I think several of your Lordships have pointed out, the present is hardly a favourable time. The fighting has only just ceased, and the clouds of war are still very much in the sky. We are all overburdened with work. We have no time to give to this great subject, and I think that while so many great problems of Imperial destiny are upon us all, we cannot possible give consideration to a subject which affects every home in the country.

I should like to make it plain, therefore, that though I support the noble Lord who has moved the Amendment I do so with a different intention from that which I think is in his mind. In all the reforms which the late Chairman of the Divorce Commission advocated, he had reference to a state of things where the sancity of the marriage tie was a sanctity in name only, and where marriage had become a mockery and a shame; and therefore I differ in certain matters of principle, I think, from some of the noble Lords who have spoken to-day. There are many points with which one must express the fullest sympathy—namely, such questions as the recognition of the right of the poor to exactly the same law as the rich (the "equality of opportunity," as it has been called this evening). But I do not see in the proposals before your Lordships' House to-night any real attempt to reform the existing law of divorce. It is rather a sweep round all the difficulties—a sweep round of five years—and it is not reconstruction; it is rather destruction. I feel that it is necessary that we should, in so vital a matter, build upon a just basis which is lacking in our laws at the present time.

In view of the many speeches which have been delivered in destructive criticism of the present proposals, it is hardly necessary for me to go into them as I otherwise had intended to do, except to say that I feel that they go beyond the proposals both of the Majority and Minority Reports. There is, for instance, no discretion—it is not that the Court "may" grant a divorce, but it "shall" grant it. There is no question of the claimant coming to the Court with clean hands; therefore it may well be that during those five years many of the parties may live with their new mates and at the end of that time claim their divorce.

The question of the jurisdiction of the County Courts was, as I think some noble Lord said, considered by the Commission and rejected. Then it is not a decree nisi which is to be granted but an absolute decree, and as the noble Earl, Lord Desart, said, however difficult it may be to prevent collusion to-day, it will be manifestly much more difficult to prevent it under these proposals. I think it is not too much to say that these proposals do amount to divorce by consent in five years' time, and that is a proposition upon which one would not like to give any hasty decision. The noble Lord who moved the Bill said that it was a very simple Bill, and that it dealt only with separation. But it sweeps away all the difficulties—all the injustices are taken in one broad survey of five years. And I feel convinced that these proposals would not have had the support of the late Chairman of the Royal Commission.

But, at the same time, I am anxious that in the destructive criticism which has been levelled against these proposals to-day the real and vital need for reform of our law should not be overlooked. There is no remedy in these proposals for the evil of judicial separation, and, were the question really to arise on these proposals, should like to take issue with those noble Lords who have rather tried to eliminate that as an evil to-day. But it does not arise under these proposals, except that I feel that that evil is augmented. It will be invoked more than it is to-day, and it will be invoked to record and legalise disinclination. Then these proposals do nothing about what is the still graver evil to which Mr. Gladstone referred in very striking words in the debate in the House of Commons in 1857 as to the different standard of morality set up between men and women. Under these proposals the wife is still tied to a husband who is unwilling to separate himself from her and is not legally cruel, and yet is unfaithful. That is not a state of things which we can contemplate with equanimity when we come to revise the existing law.

I do not wish to go into details to-night in view of the speeches which have already been made, but I submit that these proposals go very far beyond any question of agreement, and yet leave certain of the vital problems untouched. I am convinced of the need of reform and that this is one of the questions which will have to be taken up and faced by the country as soon as peace is declared. We cannot leave the law in its present state, and we have in the two Reports, in so far as they are in agreement, a large basis of agreed reform. In this spirit and with that intention I shall, if it be necessary, support the noble Lord who moved the Amendment.

THE LORD CHANCELLOR (LORD FINLAY)

My Lords, I desire to state, in the fewest possible words, the grounds upon which I shall vote against the Second Reading of this Bill. The first objection to it is one which, in the nature of the subject with which this Bill deals, is one of considerable weight. It is dealing piecemeal with a bit of a very large subject. I think that, when a subject of this kind is dealt with, it ought not to be dealt with by piecemeal legislation. But I do not base my opposition to the Bill merely on that ground. Although no one could listen to the speech of my noble and learned friend in introducing the Bill without seeing that he introduced it with the very best inten- tions, I believe that the Bill is one that, if it became law, would do a very great deal of mischief.

Reference has been made to the Scottish law. This Bill proposes something very different from the Scottish law. The Scottish law, the merits of which I am not at present going to discuss, is that if there is what is called in Scotland "non-adherence" for four years, and if the person deserting continues in malicious obstinacy for four years, then there are to be certain rights. The first Statute was passed in 1574, and in that Statute it was provided that after the malicious obstinacy in the way of desertion had continued for four years there had to be an application to the Judge Ordinary for a decree of adherence; then there were to be proceedings before the Court of Session to compel obedience. If the obedience was not given, the spiritual authorities were to be called upon to admonish the person in default, privately and afterwards publicly, and then there was to be ex-communication, and after all that the decree of divorce could be got. In 1861 all these formalities were abolished, but the root of the matter still remains, that there must have been malicious obstinacy in the way of desertion for the space of four years. And I understand that the Scottish law is clear, that there must have been an honest desire on the part of either party to the contract to resume married life in its normal course. It will not do if there was no desire to come together again on the side of the party inclined for relief.

But under this Bill as drawn the door is opened very wide indeed. I entirely agree with what the most rev. Prelate the Archbishop of York, has said with regard to the construction of the words in subsection (1) of Clause 1 concerning married persons separated by any order of any Court who have remained separated for five years, that it is not necessary that this separation should have been by way of desertion. I do not think there can be any doubt that the most rev. Prelate's construction of those words was the correct one.

Then—whether it was intentional or not is, of course, another matter—but one can only deal with the clause as it stands. But in the second case I think that this section is so drafted as to make it very doubtful indeed whether the Bill followed, or was intended to follow, the Scottish example, because there was nothing to show that there must have been an honest desire on the part of the person seeking relief to resume cohabitation. The words are simply these— In any case where married persons have been separated from each other by wilful desertion of either spouse, or by any order of any Court, and have remained separated for a continuous period of not less than live years, either party may apply to the Court for a decree dissolving the marriage. Either party. The party deserting may apply. And there is nothing to show that there must have been on the side of the party wronged by the desertion an honest desire to resume marital life. In these circumstances it seems to me that this Bill is really not based upon the law of Scotland at all.

The second observation I wish to make is with regard to the second clause, which does away altogether with the decree nisi. The object of the six months, of course, was to give time for inquiry to see whether there was anything wrong; but if I rightly understood my noble and learned friend he said that the King's Proctor was really of no use at all, and never found out anything. I agree with what the noble and learned Earl, who spoke with intimate knowledge of this matter, said—namely, that the presence of the King's Proctor is a considerable protection. Saying that he does not find out many things is as wise as what was said of the Customs examination at Dover which I remember seeing put forward in the public Press—how very few smuggled articles were discovered in the course of a year. That may be so; but very much smuggling is prevented. And the fact that you have a King's Proctor is a considerable protection against improper proceedings. That being so, surely it is deplorable that an enactment of this kind should be based on the ground that there must be collusion, that it is impossible to do anything to prevent it, and that the King's Proctor is useless.

The only other observation I wish to make is with regard to the jurisdiction of the County Courts. This is not the kind of work for which the County Courts were started; and I think that in a matter like the dissolution of marriage it is of very great importance to keep it in the hands of the High Court. It is undoubtedly the case that there is a good deal of congestion in the Divorce Court at present, but that is partly due to temporary causes. The separation which the war has entailed in many households has led in a great many cases to lamentable results, with an increase in the work of the Divorce Court. Those temporary causes will abate, and the Courts will resume their normal aspect. Even then, of course, the problem of the Divorce Court as regards an adequate supply of Judges, and as regards enabling poor suitors to take advantage of the law, is one of some difficulty. A great deal has been done in this direction. King's Bench Judges have been told off to assist the Divorce Court, with good effects on the bulk of the work. A great deal more may be done possibly in the way of helping the poor to take advantage of the facilities which the law gives for relief in proper cases, by remodelling the laws under which assistance is given to poor persons to sue in that Court; and it has been suggested that the business might be to some extent kept down by sending cases to trial before a Judge of the High Court at Assize. If anything is to be done in the way of bringing divorce actions it should be done in that way and not in the way suggested by Clause 4. For all these reasons, if this matter goes to a Division, I shall be constrained to give my vote against the Second Reading of this Bill, because I think the effect of it would be very bad.

THE LORD ARCHBISHOP OF CANTERBURY

My Lords, I rise with some sense of difficulty owing to the circumstances in which this matter is at this moment before us. We are dealing with one of the very largest questions in the whole of our social and religious life, a question which cuts down to the depths of the principles upon which our social life has been upbuilt, and which practically concerns half the homes of this country indirectly. But how on the day after what has just been declared—the most momentous thing that has happened in the world's life, when everybody's thoughts are in other directions, in the absence of hundreds who might otherwise have been here had they felt in different circumstances—can we deal with this matter? It is absolutely impossible If the noble and learned Lord goes to a Division, of course we have no choice but to vote against him.

I am prepared to develop at length in other circumstances what I feel upon the subject as one which not only those who occupy the kind of position I hold, but many others, are bound to deal with on a very large scale as being something which concerns the whole well being of our community. But how can we adequately handle that to-night; and would it conduce to the dignity of your Lordships' House to have a Division which would parade it to the world that a matter of this kind had been decided in one way or another—as far as this is called a decision—by a handful of noble Lords? All credit to those who have found it possible to be here; but would it really be to the honour of this House that this matter should be decided in a House like this?

I hope that the noble and learned Lord will not press this matter to a Division. The speeches to which we have listened have been most striking in themselves, and striking in the sources from which they came. The noble and learned Lord who moved the rejection of the Bill stands in the forefront in consideration and knowledge as an authority on all these matters. In addition to him we have had Lord Desert whose experience in a particular Department is unique, and whose words carry incomparable weight in many directions. We have had Lord Gorell who has told us that the late President—who was the man on whose recommendation this legislation was supposed to rest—would not have supported this Bill; and we have had the noble and learned Lord on the Woolsack telling us what he thinks about it. I am speaking only of the legal side of the matter, and not touching upon the speech which my most rev. brother delivered an hour ago on the ecclesiastical side.

I could not to-night try to enter upon a discussion of the question on its merits. I should have liked to have dwelt on the question of the separation orders about which so much has been said, because I do not know whether your Lordships have noticed a most remarkable thing in the last few days upon that subject, which brings the matter absolutely up to date—namely, that in one of the leading police courts the magistrate, a man entitled to the highest possible respect in this connection, has taken pains, when an application for a separation order has been made, not to grant the order without first endeavouring to ascertain, by means of private intercourse with the parties through an accredited agent, whether an arrangement could not be made that the application should not be persevered with. That magistrate has told us that out of 414 applications lately made to him in 381 cases they never came before the Court at all. That seems to me to be almost conclusive on the question of the weight that some people attach to these separation orders. I do not want to amplify the question now, but I mention that particular point as one which occurs to me as of vital moment.

What has been said about the County Court jurisdiction in this matter is a subject which concerns the legal authorities in the House rather than the ecclesiastical as regards the weight that would be attached to a County Court judgment in this matter. But I am anxious to make two things clear. The first is that none of us, as far as I can judge, hesitate in the desire to see any difference removed which puts a poor man at a disadvantage as compared with a rich man. If necessary we must multiply the Judges or have peripatetic Judges. If a

Resolved in the negative, and Bill to be read 2^a this day six months.