§ Debate resumed (according to Order) on the Motion, made by Lord Eltisley last Thursday, That the Bill he now re td 2a.
THE LORD BISHOP OF BIRMINGHAM
My Lords, it may be for your Lordships' convenience if I say that those interested in the Marriage Bill hope that the question may be put before eight o'clock this evening, as not many noble Lords have intimated their desire to speak. I intend to vote for the Second Reading of this Marriage Bill. There is in my opinion nothing in it which can encourage our people to regard marriage lightly. It is, I am convinced, a careful attempt to bring our marriage law into harmony with opinions now held by an overwhelming majority of enlightened Christian people in this country. One of the great merits of the Bill, as it seems to me, is that it will promote morality by lessening the number of irregular unions among working people. I hope that it will also lessen the number of collusive divorces among their fellow-citizens of less narrow means. Some legislation as to divorce is urgently needed at the present time, for people generally—is it not so?—are made profoundly uneasy by present circumstances. It seems to me that the Bill is carefully balanced. No practical alternative to it has been proposed.
Some, of course, dislike the Bill because of the restraints by which it seeks to prevent hasty or collusive divorce. As 813 against such I, of course, speak as one who venerates the teaching of Christ. For me a marriage should never be dissolved unless, owing to the misfortune and still more the wrongdoing of one of the partners, it has already ceased to exist except in name. Marriage is in its very nature a restraint, valuable in the ordering of society and more especially for the sake of the children. But do we not all know that it is a restraint to which forbearance and love—sometimes unexpectedly—bring happiness? Some, I say, think the Bill too severe. Others regard it with active or passive disapproval because they think that remarriage after divorce is inconsistent with principles laid down by Christ and accepted by the Church. Now I am convinced that those who maintain this view are wrong, in so far as they assume that the founder of Christianity was law-giver rather than prophet. Christ indeed set forth with impressive emphasis his ideal of the lifelong union of one man and one woman to the exclusion of all others. But he left His followers free to legislate for men and women living in a world where wrongdoing is all too common.
Now I cannot of course weary this House with a lecture based on the critical conclusions of modern New Testament scholars. I will merely say that such inquiries have been pushed further than the point at which the most reverend Primate left them—I regret that he is not here to-day—in his able speech on Thursday last. It must to-day suffice if I assert, as I do without hesitation, that from the New Testament itself we can gather that, in the first century of the Christian era, complete divorce was allowed in the Christian community both for adultery and also when a pagan partner broke the union. Further, it cannot be denied by the historians that in the Christian East complete divorce has always existed. But you will say that the Western Church freed itself in early times from all exceptions and preserved Christ's ideal inviolate in its legislation. In theory, yes; but, of course, a safety valve was found in a practice of nullity, a practice that became so widespread as to be the equivalent of divorce by consent, or, still worse, of divorce at the pleasure of the stronger partner. The grounds of nullity were at one time so extensive that no marriage was safe from possible rupture.
814 A certain measure of reform was achieved by the Lateran Council of 1215, about the time of Magna Charta, but grave abuses continued until the Reformation. In the early sixteenth century the reformers were never tired of inveighing against the laxity of the Canon Law and against the frequent decrees of nullity, which multiplied impediments made possible. An English Statute of 1533–34 stated, none too strongly:Marriages have been brought into such uncertainty that no marriage could be so surely knit or bounden but it should lie in either of the parties' power to prove a pre-contract, a kindred and alliance, or a carnal knowledge to defeat the same.After the Reformation divorce with right of re-marriage, as you all know, became impossible under the ordinary law of England. The grounds of nullity were so restricted that abuse of the process ended.
This development was the more remarkable in that the great divines among the Reformers were almost unanimous in allowing that divorce was legitimate for adultery and, in general, for cruelty and after prolonged desertion. For example, the Reformatio Legum of the Commission under Edward VI would have allowed complete divorce for adultery, desertion and cruelty. The proposals, almost by chance, failed to become law, with the result that England was left until 1857 with as rigid a system as any Christendom has known. Did such rigidity, my Lords, promote social morality? No one who has studied the state of English society as it was in the time of James I or of Charles II or during the greater part of the eighteenth century could contend that rigid law prevented sexual licence. If your law is too strict, irregular unions will become so common that they are tolerated by public opinion, and thus harm will be done to public morality.
May I now explain briefly why I am sure those who contend that divorce has never been accepted by the Church of England—and I speak as a Bishop of that Church in your Lordships' House—have against them the weight of historical fact? As I have said, the Reformers and among them Cranmer, to whom more than any other man we owe our incomparable Liturgy, maintained no such attitude. Our Marriage Service enshrines Christian ideals. It was not meant to be, nor is it rightly used as, a reason for disallowing relief to a 815 spouse whose marriage has been desecrated. But I will pass from the Reformers to the year 1670 when a Private Act of Parliament revived an old precedent by allowing a Peer to re-marry after obtaining a divorce. Did the English Bishops in this House indignantly protest? Two of the most distinguished Bishops, the High Churchman Cosin of Durham, and Wilkins of Chester, sometime Secretary of the Royal Society, voted for the Bill. Some 450 similar Acts were passed during the next two centuries. There is no evidence whatever that the English Bishops made it a principle to oppose those measures. When at length the Divorce Bill of 1857 came up for its Second Reading in this House, nine Bishops voted in the affirmative. Among them were Sumner, then Archbishop of Canterbury, and his great successor Tait—Tait whom Bryce described as the greatest Archbishop of Canterbury since the Reformation. Finally, in this hurried historical survey, in 1920 Archbishop Davidson in this House allowed, to the discomfort of some of his allies, that a complete divorce might be granted for adultery.
In the face of such evidence I must emphatically challenge the suggestion that as a Bishop of the Church of England I ought not to vote for the present Bill because remarriage after divorce is contrary to the traditions of the Church of England. On the one hand, I am convinced that Christ set forth an ideal and left His followers free to legislate so as to give relief from intolerable unions if thereby they did not harm social morality. On the other hand, there is conclusive evidence that this view was at the Reformation accepted by some of the most representative Bishops of the Church. In fact, the grounds on which divorce with the right of remarriage shall be allowed must be determined by the conditions of the time. Every effort should be made to preserve the stability of family life, to keep the home inviolate so that children may thrive in its wholesome shelter. But when the marriage tie has become unbearable through the wrong-doing or, in very rare cases, the misfortune of one of the partners, then I say the Church should acquiesce in the ending of the union and may rightly bless the other partner's attempt to make a new home.
816 My discussion of general principles has left me with too little time to speak of details of the Bill now before us, but I must refer briefly to three matters. The most reverend Primate in the early part of this debate spoke strongly—but I believe by no means too strongly—in condemnation of the recently developed practice of collusive divorce after possibly fictitious adultery. Many of us heard with much satisfaction his statement that those responsible for the administration of the law regarded Clause 4 of the Bill as sufficient to give the Courts power to deal with the evil. The noble and learned Lord, Lord Atkin, urged that the pro-visions of Clause 4 were hard upon the petitioner, but he proposed no alternative machinery for ending a grave and admitted scandal.
I do not know whether I am in order, as this is a Private Bill, in inquiring whether administrative reform could not raise Divorce Court procedure from its present discredit. From time to time we see paragraphs in the Press concerning the rate at which some learned Judge has dealt with undefended petitions. An average rate of four minutes each was given in one paragraph which remains in my memory. Then, too, mention of arrears in divorce cases is frequent. It may be that much patient inquiry goes on behind the scenes. Of such inquiry, if it exists, there should be public knowledge. The average man naturally regards the haste which apparently results from congestion of work as ill fitted to disclose collusion. He sums up the whole thing as a fake and a farce. Now it is useless to take elaborate care with the provisions of such a Bill as that now before us if administration of the law is, and is to remain, unsatisfactory. I suggest that the Government would be well advised to increase the number of Judges specially qualified to deal with questions of divorce. A desire has been expressed that provision for attempted conciliation should be made. I would welcome such a provision, for even though it might seldom be successful it would show that we remained loyal to the Christian ideal. Bit I would also welcome administrative action by the Government whereby—dare I say it in this House?—women would become Divorce Court judges. I believe that a woman, by reason of her sex, would be especially valuable in such a position. A woman of mature judg- 817 ment, with, of course, experience at the Bar, especially if she had some medical training, would probably show special qualities which the community would rapidly learn to appreciate.
May I refer briefly to two other clauses of the Bill? I have the greatest sympathy with the object of Clause 1, for too many young people contrive a divorce a few months after marriage. No one who accepts the Christian position can approve the establishment of a system of trial marriage. But I have reluctantly come to the conclusion that during the first five years of marriage a petitioner for divorce must, at the least, be able to apply to the Court on the ground that special circumstances exist. If the clause as amended in this way is retained, I should welcome its retention. I am in favour of the provision that insanity, under the conditions laid down, should be a ground for divorce. It is true that all other grounds are due to the wrongdoing and not to the misfortune of the respondent, but insanity is largely inherited; it is often a mental instability, where the appearance of cure is not maintained on return to normal life. The eugenist, anxious for the future of the race, the geneticist with his special knowledge, regard insanity with a gravity not, I think, recognised by some who have taken part in this debate. I trust that if we have the opportunity of hearing the noble Lord, Lord Dawson, this evening he will give us, out of the range of his own experience, information which must be weighty.
Many of us, however, have known men and women who have deliberately sacrificed the joys of marriage and children because they have known of a taint of insanity in their inheritance. I can conceive of few situations more awful in civilised life than that of a woman expected to bear children to a husband of unsound mind or of a stock which, as she has learned, is mentally tainted. As we remember that children are the chief end of marriage, so we ought, with nothing but pity for the tainted partner, to allow the sane spouse the opportunity of freedom, if desired. In this matter, as it seems to me, the provisions of the Bill err in possibly being unduly strict. I apologise for detaining your Lordships so long. I will merely add that I give general support to this 818 Bill, not as a concession to be made to a semi-pagan community, but because it seems to me to be legislation in accordance with the spirit of Christ.
§ THE MARQUESS OF SALISBURY
My Lords, this most interesting debate deals with a subject of great complexity, notably because while it has, of course, a side of legislation for the State, it also has an ecclesiastical, I might almost say a spiritual, side. Therefore none of your Lordships would complain if most reverend and right reverend Prelates have taken a considerable part in the discussion. They have not always agreed. Far be it from me to attempt to intervene in the subjects upon which they differ. As far as I am concerned, most of the few remarks which I intend with your Lordships' leave to address to the House will be confined to the State side of the legislation. I will, however, just say this. The right reverend Prelate who has just sat down—an out-and-out supporter of the Bill—has dealt with many parts of it but has said nothing about Clause ii. This is the clause which finally relieves the Church of England from any coercion compelling the employment of their clergy or their churches in the remarriage of persons once divorced. He said nothing about it, hut, of course, it is a vital clause in the Bill—vital from the point of view of the Church, but vital also from a broad general point of view, because it marks the dividing of the ways upon this subject between the practice of the Church and the practice of the State. The most reverend Primate, unlike the right reverend Prelate who has just sat down, said that he could not in any way support the Bill, and it is quite clear from the line he took, and, if I may say so, from what I understand to be the line taken by the great body of Bishops and leading clergy of the Church of England, that henceforward no divorced person will be remarried, so far as these leaders can control it, in a church of the Church of England. Your Lordships will please realise that I am not, at this moment, desiring to express any opinion as to whether that is a good new departure or a bad one, but I will say that it is a most notable new departure. It means a profound change in the practical social administration of the marriage law.
I may just say, incidentally, that, humbly following in this respect the most 819 reverend Primate, I cannot support this Bill. What is the vital thing? The right reverend Prelate has mentioned it: it is the stability of the marriage law. I need not say that I am speaking from the point of view of the State, for, as I have already told your Lordships, I am not dealing with doctrinal issues; it is not for me to deal with them. But what is vital from the point of view of the State is the stability of the marriage law: that everyone shall know what the law is and the solid basis upon which it rests. Anything else inevitably leads to disaster. Once there is a doubt about the foundation upon which the law stands, there is unrest at once. Everyone who is a little uneasy in his marriage thinks: "Oh, a little political agitation and we may get the law modified again. There is no fundamental reason for a great many of the provisions of this new Bill. They may be good or they may be bad, but many of them are only questions of degree." That unrest, I say, is a most important defect which this Bill will involve, and with unrest of course comes immorality, because people say: "Well, if the law says that I can get rid of my husband in three years, is there anything very astonishing or shocking if I anticipate it and act as if I had got rid of him in two years? There is nothing astonishing in the difference; it is a difference of degree." Your Lordships will find that throughout this Bill there is the same element of vagueness and insecurity, so that no longer will anybody feel that he can rely on the basis upon which the marriage laws stand.
How can I defend that statement of mine? The present marriage law depends upon the doctrine of the Church of England. Not only of the Church of England, but the Christian doctrine, and, as I have said, I am not here, I am not qualified, to discuss the doctrine, but merely to make the statement that it does rest upon it. It is not a question of whether we are going to adopt the text of St. Mark, or the text of St. Matthew, but as a matter of fact the Church of England, and the British law following the Church of England, and following a Church much wider than the Church of England, has founded itself upon certain texts of the New Testament. The essential thing to enable a man or woman to divorce his or her spouse is an 820 act of adultery. That is essential. Nothing else will do. That is a solid basis. Now let us examine how far the Bill departs from that solid basis. There are several other causes which can be used in order to produce a divorce under the Bill. There were, it is true, a great many more such causes as the Bill was introduced in another place, but several of them have in the course of the discussion there disappeared. But one or two remain.
There is desertion. People plead for this. They show very hard cases. They ask for our compassion for those hard cases, which undoubtedly we are most willing to accord. But what is to be desertion? Now one of the most notable things in this Bill is that there is no definition clause. As your Lordships are aware, Bills which are laid before us, and which we discuss, nearly always have a definition clause. This Bill had originally a definition clause, but it disappeared, and there is now no definition cause. We do not know what desertion is. Not absolutely.
Let me suggest an ambiguity consequent on this absence of a definition. Your Lordships are aware that one of the great reasons for this Bill is what is called collusive divorce. That is where the act of adultery is pleaded in collusion between the parties, but I do not know whether desertion is subject to the same condition. May there or may there not be collusion so far as desertion is concerned? That gives an example of the vagueness of it. Then, the desertion is to be for three years. Why three years? Why three years more than two years? I find no defence of that particular provision by the noble Lords and the right reverend Prelates who support the Bill. We are always encouraged to follow the Scottish example. In this respect it is four years in Scotland, but for some reason or other three years has been picked upon in this Bill. Do your Lordships think that uneasy partners to a marriage are going to respect a law which has so artificial and arbitrary a rule in it as this? Why should they, against the strongest passions which human nature is capable of feeling? They must wait for three years. Why wait for three years? My Lords, I am sure you must see what a fundamental change this r lust involve in the conception of marriage.
821 Then take insanity. The right reverend Prelate who has just sat down is strongly in favour of the provision which makes incurable insanity a reason for divorce. It is on the ground that insanity makes marital relations impossible. Is that the only misfortune that can happen to a married person which makes marital relations impossible? Of course it is not. All sorts of diseases make marital relations impossible. Why then is insanity picked out, and how long do your Lordships think you are going to stand upon a ledge so frail as that? If insanity is to be a reason, why not other diseases which befall mankind and prevent marital relations? Of course they must all follow in due course, and when they come the Bishop of Birmingham will defend them.
It is to be incurable insanity. There is no definition of "incurable." It is a matter of opinion, of course; nothing but a matter of opinion. I suppose the opinion of doctors—of two doctors or perhaps only one. Why should we tie ourselves in a matter of this kind to the opinion of doctors? Do doctors never differ in their opinions, even on the most fundamental questions? Of course they do. There is no definition of "cruelty" either. Of course it is said that there have been definitions in the practice of the Courts, or something of that kind—there have been forms of words used which amount to a definition. Why are they not repeated in the Bill? I am not a lawyer, I am sorry to say—I wish I were—but I should think that one of the things which lawyers would take notice of would be that, whereas in all Acts of Parliament such things are defined, in this Bill there is no definition, and therefore it must be interpreted differently from any other received phraseology which has hitherto prevailed.
Insanity is only a question of degree, again. Take such a pitiful form of insanity as melancholia. I suppose you can have incurable melancholia: yet think of the cruelty of adding to the wretched man's anguish of mind, profoundly depressed as he is, the knowledge that divorce is hanging over him. How can that be defended? How different that is from the conception of marriage as the Church of England teaches it: "For better for worse, for richer for poorer, in sickness and in health." That is the real bond. A partner to a marriage is melancholy, frightfully depressed, and the spouse is 822 encouraged by this Bill to add to all the terrible weight of the burden of depression this fact, that he or she would be absolutely deserted.
We are always encouraged to follow the Scottish example. Well, it is a notable fact in this case that we have got a very recent Scottish example, because a Bill has been passing through your Lordships' House and, as far as the decision of this House is concerned, is already law, of which the provisions are very interesting. The noble and learned Lord who was responsible for piloting that Bill through the House, Lord Alness, spoke on Thursday, and he said, speaking of the present Bill, that all the provisions of Clause 2, that is, the causes of divorce, as well as others, are contained in the Scottish Bill. Yes "as well as others," but he did not mention the others. I would invite your Lordships who are asked to follow the Scottish example to consider for a moment what the others were which have, as far as this House is concerned, passed into law. Habitual drunkenness. And then a most wonderful provision—imprisonment; not merely imprisonment in lieu of a sentence of death—that comes in too—but other imprisonment. If a husband, let us say, has been imprisoned three times—I think it is for not less than six months—he may be divorced according to this Scottish Bill.
That is the line we are to follow. So that as time goes by—and I have no doubt there will be many defenders of such a change hereafter—prolonged imprisonment or repeated imprisonment is to be a reason for divorce, because the noble and learned Lord intimated that a man who had been in prison like that was hardly fit to have children. That was his conception, the Scottish conception of the marriage law. The Scottish parallel is blazing a trail which the marriage legislation of this country will follow unless your Lordships and the other House of Parliament take the greatest care to prevent it. Moreover, this Scottish law is not stable. The noble and learned Lord boasted that desertion as a cause for divorce has been the law of Scotland for 350 years. Well, he himself has proposed to alter it. It is no longer to be four but three years. No doubt Scotland is on the move, the marriage question in Scotland is on the move, just as it is in England.
I cannot support this Bill. The foundation of it seems to be utterly unreliable.
823 It does the very thing which the right reverend Prelate said ought not to be done. It makes the marriage law unstable, and it opens the door henceforward to repeated change. Let me say one word in conclusion about the best part of the Bill. Well, there are two very good parts of the Bill. There is Clause II to which I have already referred, and there is Clause 4 which is designed to prevent collusion. That clause shares the general vagueness which characterises the Bill. But what is very important is the way the noble and learned Lord, Lord Atkin, addressed himself to this clause on Thursday. He held up his hands in horror that the Court should have to be satisfied that there was no collusion; he thought that was a most unacceptable provision. How could the Court be satisfied? He doubted whether, even if it had discovered a suspicion, it would be able to give any effect to its discovery.
Well, I do not think it is at all astonishing that the Court should have to be satisfied that there was no collusion. After all, if a man is found in possession of stolen goods he has to satisfy the Court how he got them. I am speaking in a learned presence, but I should have thought it was not at all contrary to the ideas of English law that a man who comes lending himself apparently to a suit of divorce from his wife should be asked to prove that there was no collusion. It seems to me very reasonable. When the noble and learned Lord says that he doubts whether it is possible to carry such a provision into effect, just conceive what that means. The noble and learned Lord is a Judge; he is a Judge of the Supreme Court, the highest Court in the land. If we pass the Bill in the form which is now on the Table, is that the way in which the Judges are going to interpret it—that they do not think it is possible to carry it out? It seems to me fatal to the words of the Bill as they stand, unless they are strengthened.
I earnestly hope that your Lordships will consent to strengthen them. It has always occurred to me when I read, as I sometimes do, these unopposed divorce cases in the newspapers, why in the world the respondent is not compelled himself to give evidence. I should have thought it was the simplest thing in the world to put the respondent into the box by the authority of the Court, and say to him: 824 "Did you commit adultery with this woman who was suddenly introduced into the inn or the hotel in which you stayed for one night? Did you know her? Have you ever seen her before? Why was she there? Can you tell the Court why she was there?" Suspicion would reek at o ice, even the noble and learned Lord, Lord Atkin, would be convinced that it w as suspicious. I hope that some Amendment involving such a change may be put into the Bill. I have done. I apologise to your Lordships for having kept you so long, but I was anxious that this House should realise how grave a matter this Bill is, what a great departure it is from our hitherto received practice, and how it launches the marriage law of England upon a path of which I do not see the end.
§ VISCOUNT DAWSON OF PENN
My Lords, it is in the hope that I may be ab1e to contribute something to the fabric of thought behind this Bill that I venture to make a contribution to this debate. It is not true to say that we have reached a condition in which we are compelled either to go forward and amend the Act of 1857 or to go back and abolish divorce altogether in the sense which Roman Catholics and Anglo-Catholics would desire. The present-day evils of collusion, adultery, and perjury, injuring as they do the characters of the people who resort thereto, and having the further objection of damaging respect for the law in the eyes of the public—these are evils, and great evils, fully admitted. Some of the speakers are disposed to say that the causes of collusion and adultery are due to a weakening of the fabric of the moral sense. One speaker even referred to licentiousness as being the cause. I ask your Lordships, is change always decadent? I suggest to you, are not the causes of our present troubles to be found in the changes in thought and in mind which have taken place in the course of the years?
With the evolution of man's mind and heart down the centuries, is it not a fact that standards of knowledge and conduct have changed? Those who are opposed to such changes have often, on previous occasions, appealed to God and the Bible to bear them witness. I need only mention Sabbath-breaking. Did not the pulpits of the last century resound with declamations against Sabbath-breaking? 825 Were not the people of those days told that the wrath of God would descend upon the world for the breaking of the laws of the Scriptures? And to go back into the world of thought, let us recall the times when men first suggested that the world was round and not flat. The opponents of that line of thought asserted that to declare the world was round was contrary to the Scriptures, and so it was. It also gave rise to such charges of irreligion that those who ventured to advocate it lost their lives in the cause they wished to espouse. Changes must come, whether they be in thought or conduct, and what is to me so difficult to understand is why the idea of marriage should alone be expected to remain static. Immobility is not the same thing as; stability. With a changed sense of values, has not the view steadily progressed during the last twenty-five years that when the main purposes of marriage have been frustrated—frustrated beyond repair—that marriage ceases to have any spiritual meaning or any spiritual existence? Where the kernel of marriage has been lost, the tendency of the present age is to throw away the husk—and can we say that it is wrong? The law, having lost its social sanction, is increasingly circumvented. Surely the cure is to adapt the law to the prevailing mind of the community, and this is what this Bill seems to do.
I pass for a moment to consider the conditions of divorce. If we exclude a small group of flippant people, with uncharted lives, who have only a notoriety value, I suggest that the majority of people who seek for divorce are serious people concerned with the workaday world. Nor must we think that the increase in divorces means a corresponding increase in marriage failures, because in former clays more married people lived with their failures, whereas in these days these failures are jettisoned when so irremediable as to make family life a pretence and a damage to the children. Further, in past days, married people were better able to live with their failures because the wife was dutiful; she fitted in; she had no more equality in sex than she had under the law. Often she was but the passive recipient of her husband's sex needs, while her own sex life was too often submerged by repeated and alternating periods of pregnancy and lactation. On the other hand, in the years 826 preceding the War, freedom and equality were coming to women, and with this, an increase of sex consciousness. The War accentuated these changes, and henceforward men and women had a freedom of companionship hitherto unknown. Time has been needed for the consequent adjustment, and that adjustment has not even yet been completed. The result of women being more sex conscious is that a woman expects a sex-satisfied life, just as she demands equality of companionship, and if deprived of this, discontent and a sense of failure are apt to eventuate.
I do not hesitate to bring in that side of marriage, because, although it is perfectly true that true marriage has ingredients of sex love, parenthood, and companionship, they are mutually dependent one upon the other, and any one of them may be wrecked by the disregard of the other. It follows therefore that women do, in fact, contribute more to marriage failures than they did in days gone by, when the woman was a more submissive partner. On the other hand, it is my belief that marriages which are successful to-day reach a higher level of happiness than at any previous period. And, despite all these difficulties, can it be said that, speaking generally, the institution of marriage is declining in this country? I would beg to urge the opposite view. I would hold that in spite of all our difficulties, the home and the family stand fast. We have only to witness the sane and sympathetic care of children, never surpassed in any previous age.
I pass to the clauses of the Bill which, in my judgment, is so commendable in its purpose. The object of the five-years clause, as I understand it, is to prevent the break-up of marriage for a cause which is transient and curable. I suggest that five years is too long. New attachments would be very apt to arise during the waiting period, and I have my doubts whether they would stand the test of five years celibacy at that period of life. Again, though five years is a reasonable term perhaps for someone in the early twenties, it becomes a much more serious matter if a woman of twenty-eight is asked to wait five years. It would carry with it the grave disadvantage that it would be destructive of the possibility of a second marriage. I suggest that the shortening of the period, at any rate of 827 those who have reached a greater maturity, or perhaps better, if that were possible, to give a discretion to the Court would be a more efficient way of meeting the objects of Clause 1.
It is convenient perhaps here to express regret that the Bill does not attempt to deal with or devise means of disentangling and remedying the causes of matrimonial disharmony in their early stages. One of the hopeful aspects of our body politic is the increasing use of preventive remedies. To my own profession belongs the credit of leading the way by having opened out the vast field of preventive medicine; and to-day we witness the idea bearing fruit in many and varied directions—in the tribunals of industry, in the extended use of probation officers in connection with the Courts of Justice, in the establishment of children's courts, and still more recently in the beginning of matrimonial tribunals. Members of my own profession know full well how many are the misfits of marriage—maybe physical, maybe psychical—which come to them in the guise of ailing health, and how often by the imparting of knowledge and understanding an endangered marriage may be put straight. I suggest that ways and means for making such help widely available would be well worthy of exploration.
Passing to Clause 2, surely there can be nothing but praise, alike on grounds of logic and humanity, for the granting of divorce for desertion and cruelty. They both frustrate the purposes for which marriage exists. If they exist over years they destroy a marriage, and that marriage is not worth preserving. The yielding to a chance physical temptation is as naught compared with the cold calculation of desertion, or with a cruelty going on through the years, which can convert a home into a chamber of torments, and in my judgment the community has no right to inflict on any human being the continued torture of such a home for any cause whatever. The noble Marquess in his speech, when he touched upon the subject of insanity, said it was impossible to depend on the opinion of doctors. My answer to that is that, unfortunately, in this imperfect world, we have in all our daily relations to trust to those who are expert in the varied branches of knowledge and experience. We poor citizens 828 have to depend on the advice of statesmen. On matters legal, we have to depend on lawyers. And those professions are liable to err. Are we to make no decision because we cannot get perfection? The care with which matters of insanity are considered by my profession, checked and controlled as we are by our colleagues of the law, gives, I venture to say, greater security to the poor sufferers from mental disorders than is given in any other country in the world.
But I agree that when we come to insanity we are up against difficulties. Here the victim may be free from blame, and here we must balance our sympathy and our sense of justice between the spouse with the deranged mind and the spouse, and maybe the children, who have to live with that deranged mind. If we limit the period of continuous treatment to three years, I think we might exclude the chances—and reasonable chances—of recovery. It is all a question of adjustment. You will not get 100 per cent. either way. There is this further reason against making the period too short, and that is that the patient might have a knowledge that he or she is in danger of divorce, and in some instances the patient's anxiety as to a possible divorce might prejudice his or her recovery. I have a suggestion to make and I venture to think it is a substantial one. It would be either a continuous period of five years or—and I regard this as very important—whenever a recurrent form of mental disease has been established. I think if you increase the period and pay special attention to the feature of recurrency you will provide a just solution for both the patient and the patient's home.
There are certain forms of insanity which are cyclical. Imagine the wife of such a patient who is in and out of treatment for ten years. Imagine that home; the dread, whenever the husband comes back, of insistent demand for intercourse; the difficulty of refusal; the fear of pregnancy, and, what is even worse, the fear of mentally-affected offspring. I venture to think—unless you are going to take up the position, and it is to my mind the only logical position, that we are for ever to adhere to authority 2,000 years old, that we are to become slaves to textual authority—that we should attempt to progress with the times in the spirit of a true Christianity, provided we are sure that in all our doings we are 829 animated by the spirit of the Sermon on the Mount.
I pass back to one other matter. It is a small one, but it is an important omission from the Bill. In the case of homosexuality I shall ask that this be made a cause alike for men and women. It is time for equality in that matter. I regret for myself the omission from the Bill of inveterate alcoholism and inveterate drug taking. It is only members of my profession who know the desperate state of fear in which homes exist when one of the partners is the victim of inveterate and incurable drug addiction or alcoholism. In the latter case the partner lies awake hour after hour, night after night, waiting for somebody to stumble upstairs, and lives in dread of cruelty being exercised towards the children or towards the partner. Drug addiction, although more subtle, can bring destruction to families with an ease which we all wish to avoid. My Lords, I beg for these reasons to support the Second Reading of the Bill. With certain Amendments it will make in my judgment more firm the institution of marriage and make life more honest, more just, more in accordance with the facts of life with which we have to live to-day. It will thus add to the stability and happiness of our country.
§ THE EARL OF BIRKENHEAD
My Lords, I have listened with great interest to the speeches in your Lordships' House and I followed with equal interest the progress of this measure through another place. I observe with pleasure not unmixed with surprise the change which seventeen years has wrought in this vexed and most difficult question of divorce law reform. I did not expect the passage of this Bill through all its stages in another place without criticism, nor did I expect that it would pass your Lordships' House without criticism. On the contrary it encountered in the Committee stage in another place several, violent squalls and lost minor portions of gear. Its progress was generally disputed by a small resolute band with great persistence and considerable ingenuity. Yet the general feeling in its favour was immense and at no single point did one feel that it was imperilled. I believe that a similar feeling exists in your Lordships' House.
I believe it is absolutely vital that we should discuss this question of divorce without bitterness. It is far easier for us 830 to do so now, because the great gulf of principle which formerly separated the rival parties in this matter has now to a great extent been bridged. Leaders of the Church have told us that in their opinion the time has now come for some further measure of divorce reform. A measure such as this is a hopeful basis on which we can examine the question. I myself believe it to be a perfectly honest and perfectly sincere, although at some points a somewhat obscure, attempt, not only to alleviate the distress of thousands of unhappy people but also to combine a substantial and not excursive measure of reform with the great deference which we owe to the known views of the Church. The promoters themselves would be the last people to pretend that they have not made mistakes or that the pressure of circumstances has not forced them into the drafting of several somewhat ambiguous clauses. I am surprised that they have made so few mistakes when one remembers the trembling delicacy of the tightrope on which they have maintained constant and on the whole dignified equilibrium. This Bill as it stands is far from perfect and there are several clauses which have been already criticised, with which I myself disagree, and to which I should like to draw attention in due course. Nevertheless, I think it stands out after seventeen years barren of reform as a great and sane stride forward out of the mists and vapours of the past. If it becomes law I am sure it will remain as a landmark in the social development of this country.
I should like to turn for a moment to the Bill itself. I did not expect Clause 1 to escape criticism and I wish to associate myself with those noble Lords who have spoken against it. Here is a clause conceived with the best motives which will none the less descend with cruel and savage incidence upon a large number of people. It is quite easy to understand the object of the promoters in inserting this clause. In effect, they said: "This is our great saving clause. If we put this part of the machinery in motion it will be a great check upon those childish and pathetic marriages which start with such eager hope and leave behind them a trail of failure and disillusion." I believe that this argument proceeds from a fallacious interpretation of human nature. How many people are there who in the first flush of love and enthusiasm approach 831 marriage in this hedging and cautious spirit? If there are such people how worthy are they of your Lordships' serious attention? This clause appears to me, on the one hand, to offer a broad and reassuring guarantee, and, on the other hand, to deal a most vicious backhanded blow by depriving men and women of a vital right which they enjoy at the moment. I do not know which of the various alternatives your Lordships will decide to take in Committee, and I think it would be better not to speak further about it at this stage. In any case I think it is essential, and indeed only sane, that in the case of a man guilty after marriage of rape or sodomy or bestiality the wife should obtain relief at once without delay.
When we come to Clause 2 we find that the new grounds of divorce substantially follow those recommended in the Majority Report of the Royal Commission. I am amazed that paragraph (b) of Clause 2, relating to desertion as a ground for divorce, should provoke such an amount of feeling. To me its advantages are obvious. The sufferings under the present law are undoubtedly very great. It must be remembered that the present law bears particularly harshly on poor people. What remedy is there open for a poor woman whose husband has left her? She lacks the means to discover his whereabout or to prove his adultery. She is in a cruel and lonely position, neither wife nor widow. What happens? She enters into another relation and probably takes steps to avoid having children. This lamentable result is found in thousands of cases at a time when leading economists predict a crisis at no distant date through a sharply falling birth-rate.
What are the arguments against this provision? It is said that it will lead to a greater number of divorces and encourage collusion. In spite of what the noble Marquess said, I do not think that is borne out by experience in Scotland. I believe I am right in saying that the number of divorces in Scotland has never exceeded 2½ per cent. of the number of marriages in a single year, and no evil result whatever has arisen. I also recall that in all the Dominions divorce for desertion has been allowed for forty years, and in every civilised country it has existed without any of the evils about which we have heard. It is said that 832 three years is too short a period. I can only say that when one party leaves the other for three years with intent to desert, that party is callously violating the solemn vows which were sworn in the Marriage Service and is leaving the other party to sink or swim. I take the view that that marriage has broken down in fact, and has become a mockery and a sham. The second point made is that this clause will multiply the number of collusive divorces. I can only say that the number of such divorces, reprehensible as they are, is much smaller than the number that used to take place. Moreover, in the case of desertion particularly, those who will be prepared to collude over a long and difficult period of three years will be a very small minority of those who will be seeking the dissolution of their marriage.
The last ground given, that of insanity, is by far the hardest ground to justify. As the most reverend Primate said on Thursday, insanity is a misfortune and no question arises of its being a conscious injury. It is possible, however, to lay too much stress on this argument. True as it is that the lunatic's mind is deranged through no fault of his own, we are not, after all, giving divorce on the basis of reward and punishment. Divorce is granted on a profound consideration of social policy, and, whether the unsuitability for marriage be mental, physical or moral, the result is the same. I would remind your Lordships that paragraph (d) provides a powerful check. The respondent must be incurably insane and must have been under care and treatment for five years immediately preceding the presentation of the petition. That is to say, he must have been given care and treatment for five years and, at the end of that period, he must be subjected to a medical examination which in the opinion of the Court is sufficient to prove that he is incurably insane. I think that only a very small minority of cases will escape such a finely-meshed net.
A great deal has been said about Clause 4, and the prudent layman will, I think, approach that clause in a spirit of deferential bewilderment. It is undoubtedly a legal labyrinth in which lie lurking a number of formidable legal minotaurs. I hoped I had misunderstood the object of the clause; but, as I listened to the admirable and lucid speech of the noble and learned Lord, Lord Atkin, on 833 Thursday, I came to the conclusion that I had not misunderstood it and that in fact this clause is shifting the burden of proof from the Court to the parties. It is involving the petitioner in the extraordinary position of having to prove a negative, to prove as a fact that the absolute bar of collusion did not exist. That is placing the Court in the new and most dangerous position of having to dismiss the petition on suspicion of collusion in the absence of any definite proof. I cannot really believe that this is the intention of the clause, and I shall be very grateful for any subsequent explanation.
The next, Clause 5, seems to me to require even greater care and attention. It provides, first of all, some clumsy machinery for a comparatively simple object. Under the Bill as it stands there is to be no divorce for five years. Therefore you must clearly have some method of releasing the offended spouse from the obligation of living with the offender, and also of enabling her to be maintained. Clause 5 deals with this by the clumsy method of judicial separation carrying the power to get an order for alimony convertible by petition into divorce at the end of five years. I consider subsection (2A) to be most unsatisfactory, because it seems to involve either one of two evils. Either it is going to give magistrates' courts virtually the right to create divorce cases, or, if further evidence is required in a higher Court, it involves re-proving the magistrates' case in that Court with all the attendant difficulties of securing witnesses and proving again facts which have become cold with time.
I do not wish to say anything now which would be more properly said during the Committee stage, but it seems to me possible to remodel this clause in something like the following sense. Could we not say that if during the five-year period an act is committed which, but for the provisions of Clause 1, would be ground for divorce, then a petition may be presented and a decree made, but such a decree shall not become absolute until the end of the five years. This method would have the following advantages: the case would be proved when the facts were fresh, maintenance could be provided, and the union would not be dissolved. Lastly, magistrates' courts would not be given the power to make divorce cases.
834 Clause 8 is of the utmost importance, and I hope your Lordships will accept it as it stands. At the present moment only the petitioner can apply to make the decree nisi absolute. The evils of this position would be abundantly clear to any of your Lordships who studied the case of Fox versus Fox in the Court of Appeal. In that case the woman deliberately held up the decree absolute for years because she was not satisfied with the maintenance order. Obviously, that was nothing but blackmail. If this clause is allowed to stand, such cases will be made quite impossible.
The clauses I have criticised do not in any way impair the strength or the goodness of this Bill as a whole. The measure we are considering is rough material of the highest order, carrying with it the desires of thousands and withdrawing its sanctions from many miserable and indeed somewhat shameful years. We are not asking your Lordships to legislate for easy divorce. Nothing is further from the intention of those who take our view than any relaxation of the strength or sanctity of the marriage bond. We should, however, try to remember that sentence of the Majority Report which always seems to me to be pregnant with meaning:No law should be so harsh as to lead to its common disregard.We should also recognise that where a marriage has irretrievably broken down, the parties should be able to obtain relief. It is for your Lordships to shape and polish this instrument into a more perfect form. All over the country men and women are awaiting release from this melancholy bondage. It is within our power to set these people free at last and to bring new life and vitality to those who have for so long been sullen with blighted hope. Seventeen years ago the Matrimonial Causes Bill passed its Second Reading in your Lordships' House by a fine majority, only to go limping on to an inglorious extinction in another place. To-day the omens are for us and the opportunity has come. If we step forward and embrace it boldly, we shall have made a lasting contribution to the happiness of the English people.
§ LORD WRIGHT
My Lords, I intervene with some hesitation at this stage of the debate, and after the very exhaustive discussion which we have heard from all 835 sides on this question I very much doubt whether I can add anything of novelty or value. But I had experience in the administration of the divorce law for seven years while I was a King's Bench Judge, and I think it desirable that I should add my testimony to the weight of approval of this Bill. I do approve of it; I approve of it almost completely. There are certain reservations which I have to make; but these, I think, are mainly matters which would be dealt with in Committee, and I shall only refer to two matters of reservation at a later stage before I finish.
The question of marriage and the question of divorce are obviously questions which arouse great difference of opinion, and involve a great appeal to human emotion, but the real question, the vital question, of this Bill is comparatively limited. I do not refer to those portions of the Bill which deal with nullity and with presumption of death, which are based upon the joint recommendations of the Commission which reported in 1912. These have been passed without comment, and I may regard them as non-controversial, although there are some matters of detail which we shall have to discuss in Committee. The central point of the Bill is obviously that provision which increases the list of conditions which will constitute sufficient ground for a decree of divorce. We must start here with the assumption that marriage in the eyes of the law is dissoluble. By those who regard marriage as indissoluble this Bill cannot be approved—it is inconsistent with that fundamental belief—but to all those others who accept the view of the English law that marriage is dissoluble, then the only question is whether adultery exhausts the whole range of possibilities, or whether there ought not to be certain other grounds added.
This is no hastily conceived measure. It is not launched without mature consideration. The new grounds of divorce suggested in this Bill are set out, fully explained and argued, and I think justified, in the Report of Lord Gorell's Commission. It is a very pleasant feature of this debate that I believe if will be wound up as an act of filial piety by his son, who is with us to-day. The law is so far limited to this one ground, and when I was sitting as a Divorce judge, dealing 836 with undefended cases on circuit, I was impressed by two things. The first was that there were many matters which went to the root of the marriage state, which destroyed the soul of that union, other than adultery. I was limited to adultery, but I heard of cases of cruelty and desertion which, it seemed to me, were more mischievous, and more ruinous of happiness, than adultery would normally be.
Another thing that I learned was that it divorce administration we are not dealing with the frivolous, the vain, the pleasure loving, the inconstant. The cases which I had to deal with generally were cases of honest, respectable people who had been betrayed into an ill-fated union, who had perhaps for years suffered the misery of that state of things, and had been unable to get relief for many reasons, one being the impossibility, in the circumstances, of proving adultery. In these cases, I saw no sign of collusion or connivance, a matter which has been so much commented upon, and properly commented upon, in certain circumstances in the Divorce Court. All these latter cases belong to a different class of life. They belong to the better off, and they show, I think, that the present law of divorce is a bad law, because you see people otherwise honourable stooping to these methods of evasion; and where you have a bad law you have the possibility, and almost the certainty, of evasion. I saw nothing of that. I was concerned with a different aspect, and I hope, in view of some things that have been said to-night, that I did my duty and saw that every case which came before me was properly established and that the requirements of the law were satisfied.
As to the actual new grounds of divorce in Clause 2, I only want to say two things. One is that the meaning of "cruelty" and the meaning of "desertion" are well established in the Divorce Court. I do not think there can be any possibility of doubt as to how the law will be enforced if these new grounds are aided. "Desertion" means wilful and malicious desertion. No lawyer would think of it as anything else. "Cruelty" means something very serious indeed, which has been defined as "conduct involving such danger to life, limb or health as to make it impossible for two people to live together." Insanity is, I agree, a difficult question, but that will be very fully discussed in Committee. I do feel 837 very strongly that if marriage is to be dissolved at all, it ought to be capable of being dissolved on any one of the four grounds which we now find set out in the Bill, and that adultery should not be the only ground.
The only other things that I want to say are these. There has been some discussion of that part of Clause 4 which deals with the proof of collusion or connivance, and I ought to say that the provision against collusion applies as much to desertion as to anything else in the Bill. The objection from a lawyer's point of view to the present form of Clause 4 is simply this, that it changes the onus of proof. Collusion and connivance are not, perhaps, criminal—I am not sure—but they are quasi criminal acts, and the rule of English law is that everyone is presumed to be innocent unless he is proved to be guilty. Here the petitioner, if the clause is passed as it stands, is required to prove that he is innocent. That, from the Point of view of a lawyer, is very hard. I think the rule that the onus is always on the prosecution is universal in English law. I would like, but it would be improper here, to explain the complicated rules which apply to the case of a prosecution for receiving stolen goods, but I can assure the noble Marquess, Lord Salisbury, that the onus is still in these cases on the prosecution. But much as I object to Clause 5, on theoretical grounds, I am not sure that in practice it will make very much difference. It may give the divorce Judge a better instrument for probing into any case in which he feels that there is suspicion.
§ THE MARQUESS OF SALISBURY
Do I understand from the noble and learned Lord that he thinks this clause will be ineffective?
§ LORD WRIGHT
No, I do not think it will be ineffective. What I mean is that in all cases the petitioner has to swear an affidavit that he or she is not guilty of collusion. The Judge would be entitled to accept that, but if he had any reason for doubting it then he would naturally and very properly proceed to probe into the matter, and this clause would operate if at the end of his investigations he said he was not satisfied that the petitioner had not been guilty of collusion. In that way in any case of suspicion or any case of doubt it might be a very valuable weapon for the divorce 838 Judge, who of course is looking out for any trace of collusion and very anxious to prevent it succeeding. Theoretically I still object to Clause 4, and it may be that even that will be susceptible of some improvement in Committee.
As to Clause 1 I confess I have felt the strongest objections to that clause. It seems to me to have no relation to the whole scope of the Bill. It is not limited to the new grounds of divorce. It changes the existing law in regard to adultery as a ground of divorce in a manner for which I have heard no justification. We are told that it is the result of a compromise. It would carry with it the most disastrous consequences, to my mind. I am not going to repeat the very distressing instances which my noble and learned friend Lord Atkin gave on Thursday last, but I will point out this, that in every case where there is adultery in the first or second year of a marriage the innocent party will be completely debarred from any recourse to the Courts and will have to remain in a state neither married nor unmarried without being able to present a petition. The clause says five years, but five years really means six and a half years. Presumably these troubles would not arise so soon after marriage, but they may. We know, I think, that 20 per cent. of the divorces are in the first five years of marriage, and I do not think that the country would readily accept a change in the rights of injured parties of so drastic a character. I might easily take cruelty, but I do not intend to enter into any detail. I sincerely hope and trust, and indeed I believe, that if this Bill is to go through it will go through with Clause 1 in some more practical and more equitable, and some clearer guise. However, subject to these reservations such as they are and to any questions which may arise in Committee, I fervently support this Bill. I think it will promote domestic happiness. I think it will tend to cure very grievous ills which unfortunately occur even in this country, which is essentially monogamous, and I think it will promote the happiness and prosperity of the State in these important results.
§ LORD MAUGHAM
My Lords, following my noble and learned friend I will only add a few words in reference to this measure. I presume we are all agreed 839 that we are considering here not the interests of any particular class, and not alone the interests of the Church, but the interests of the State. In addition to other reasons that might be given for taking that view, I would point out—what I think has not yet been pointed out—that just about half the marriages which are solemnised in this country in a year are not solemnised in the Church of England at all, but are solemnised either in churches of other denominations or in registry offices. Accordingly we are legislating here for people as to whom one half of the couples concerned were not married in the Church of England. I would suggest this, that no single man's experience is sufficient to inform him of the conditions under which married life is conducted in all the various towns, counties and walks of life in this country, and those who like to know the facts can at the expense of a little trouble ascertain them by reading the evidence that was given before the Gorell Commission at seventy-one sittings, and with the assistance of 246 witnesses, many of them people of the greatest experience with regard to the conditions of life among the poorer classes.
And that leads me to this observation, which may not have been obvious to everybody who read this Bill, that this is substantially a poor persons' measure. Excepting Clause 6, a clause of very great importance, I think, the clause relating to nullity, against which nobody has so far said a single word, there is really not a great deal in this Bill which will in any way assist what I should prefer to describe as the wealthier classes. The clause as regards desertion of which so much has been said is a clause of the very greatest importance from the point of view of the poor, but it will be of very little use to the rich. The reason why it is of such importance to the poor is not that in truth it alters the grounds of divorce; rather it is that the poorer person, man or woman, who is deserted by a spouse, with probably one or two babes to look after, is in the position that he or she may be perfectly convinced that the deserter is not living a virtuous life but has gone off with somebody else, and in nine cases out of ten commits adultery long before the expiration of the period of three years, if not immediately.
840 I am not speaking without some knowledge of the facts when I say that of these poor people who are so deserted there certainly is not one in ten, and I doubt if there is one in fifty, who can go to the expense of getting the necessary evidence to obtain a divorce on the ground of adultery. They have not got ten pounds to waste; they certainly have not got the necessary £100 to have detectives instructed to find out where the man or woman has gone to and obtain the necessary evidence of adultery. What this Bill does for them is to say: "It will be difficult perhaps, but if you are patient for three years you will have a right to divorce without any large expenditure of money." I am sure I am not exaggerating when I say that 80 per cent. of the cases which will be presented by reason of the provisions of this Bill will be cases in which poor persons are taking advantage of the Poor Persons' procedure and are asking for divorce when the time has elapsed on the ground of cruel desertion by the other party.
In the case of rich people it may not be obvious to people who have glanced at this measure that people of means will not often be in a position to take advantage of the desertion clause, and for the reason that most of them, or at any rate a great number of them, have a separation deed providing some payment or other to the person who has been deserted. As soon as there is a separation deed—and, indeed, there may be deeds which do not provide something in the nature of a[...] imony to the other party—the desertion clause will be impossible to apply. Desertion will be applicable only when the other person, the deserting spouse, has, without the consent of the deserted spouse, departed. That will not apply in the case of a separation deed, and it was found—in the other place—impossible to fame a clause which would meet such a case. The result is that, in the case of desertion, you are giving a remedy to poor persons so that they will not be bound for life to spouses who have disappeared, whose whereabouts they do not know, and as to whom they can find out nothing, even of their death. To these people you are going to give the relief of this measure in a proper case. With regard to the rich, in all probability the desertion clause will be of little use. I 841 think I am justified in saying that this is a poor person's measure.
I shall not imitate the noble Marquess who observed that people were driven to commit adultery, and who thereby brought down upon himself an apt quotation from Aristotle, but I will say that the hardship on either the man or woman who has been left alone by the other spouse with a child is so extreme that there is, at any rate, some excuse for their forming, as undoubtedly they do form in far too many cases, an illicit connection. Before the Gorell Commission terrible examples were given of the almost necessary result of desertion among poor people, living in small houses, the number of rooms quite limited. The man who has been left with a babe has got to have some woman to look after the child while he is away at work. The woman who has been deserted by her husband has the greatest difficulty in supporting herself and her child, or children, and has to take in a lodger. In either of these two cases where there is very limited housing accommodation, the evidence is—and we must not shut our eyes to it; it may be regrettable but it is true—illicit connection takes place, with results in the statistics of illegitimacy in this country which are almost inevitable. That is the great thing which this Bill, as I think, may help to remedy. I regret if people from the highest motives object to any divorce for desertion, but if they will think it over they will see that, in truth and in fact, in nearly all these cases of desertion, there would be a remedy on the ground of adultery if only the poor people could afford to prove it.
I will add one word on two points which have been greatly troubling some of your Lordships. It is no secret that almost everybody is discontented with Clause 1 in its present form and, to my certain knowledge, two or three or more Amendments to it have already been drafted. It may be that your Lordships, in Committee, will strike the whole clause out of the Bill, but it is quite capable of amendment to such an extent that it will have very little effect in preventing anybody but a very limited class from having divorce if they have a right to it. The figures are of this nature. Of the total number of petitions presented, those which come within the first five years of marriage are only 14½ per cent. That is, if you limit the Bill to five years. If 842 it is limited to three years, only 4 per cent. or thereabouts of the petitions which are now presented will be hit by the clause. If, in addition to that, you give the Court discretion, which I think your Lordships are very likely to do, the number of people who will be affected by Clause 1 is very small.
I will just say a word about lunacy, because I do not think everybody who has spoken has fully appreciated what the Bill proposes. In the first place, be it noted, which I think one of your Lordships had not in mind at the moment of speaking, there is an elaborate insanity definition in Clause 3. It applies only in cases where not only has insanity existed continuously for five years, but where there has been detention, as mentioned and defined with great care under Clause 3 (a), or continuous treatment as a voluntary patient under the Mental Treatment Act, 1930. What I want to tell your Lordships is this. The number of people who recover after five years' continuous treatment in one of these places mentioned in Clause 3 is very small. In Committee in the other place it was stated to be one per cent. I think that is a mistake. I think it should be stated as a little bit more than that. But assume that two per cent. recover after five years in a place of detention, the question which you have got to ask is this: How many of this two per cent. are persons of whom the doctors in charge of the institution could declare on oath that they had shown no signs of improvement during the five years? I do not think that the two conditions can possibly be fulfilled so as to leave open cases where there will be future recovery. The number of those who recover after five years being as small as it is, and the fact that if there is ever going to be an improvement it will be noticeable or observable during the five years, I think your Lordships may be satisfied that not one case in a thousand will slip through the two-fold qualification which is necessary in order to fit the case as one within the Act, if the Bill passes in its present form, and enable the unfortunate spouse who is married to such a person to be divorced.
I have not a doubt that the Bill is capable of considerable improvement in Committee. I have not a doubt that even when it is passed with all those improvements not one of us will be satisfied with everything in the Bill. Human nature 843 being what it is, we shall all have opinions that we ourselves could have drafted a better Bill, or at any rate could have suggested a better Bill. A thing that one man likes another will not like. We cannot always have our own way. But there will be here, as I think, a measure which on the whole, and whatever personal feelings we may have in the matter, will help the morality of the nation and will add to the happiness of a large number of people.
My Lords, we have come to the concluding stages of a memorable debate, and I must thank the noble Lord who moved the Second Reading of the Bill for having graciously agreed that I should take part in it at this stage. I should like to thank those noble and learned Lords who have paid a gracious tribute to the work to which my father devoted so much of his time and which entirely filled the concluding years of his life. I cannot in any shape or degree claim that I have special responsibility in this matter, as the most reverend Primate rightly said that he had. He spoke not only as the official head of the Church of England, but also as the one member of your Lordships' House still alive who was a member of the Royal Commission. But this at least I can say, that I have a special interest in this matter. I can remember thirty-one or more years ago the discussions preceding and following the celebrated judgment delivered by the President of the Probate, Admiralty and Divorce Division in which, on April 27, 1906, he stated that the law he had to administer was "full of inconsistencies, anomalies and inequalities amounting almost to absurdities". That, from a judge upon the Bench, is fairly strong, though the words were carefully weighed and with the one exception of the placing of the sexes on an equality, everyone of those inconsistencies and anomalies and inequalities remain to-day.
We have had in your Lordships' House over the last quarter of a century a number of memorable debates. I have been present either as a younger son at the bar of the House or, since the accidents of the War prevailed, have taken part in them myself as a member of your Lordships' House. But to-night we are concluding a debate which is different 844 from all the others. In no other case have we had these reforms, so long discussed, brought up to your Lordships' House from another place, nor have we had in any of those long discussions such an overwhelming expression of opinion all on one side. In the whole course of the debate there have been only three members of your Lordships' House who have spoken against the Bill, and all three have based themselves upon their opposition entirely to divorce of any kind whatsoever. We may, and indeed must, profoundly respect their views, but I think the whole consensus of opinion shows clearly that your Lordships' House no longer feels that the Legislature is bound to accept or follow that point of view. To those who have followed this controversy from the very start nothing has been so remarkable as the extraordinary change in public opinion. The Press, at any rate, is very indicative of what the public is thinking, and some of the major organs of the Press, which were pronouncedly against the Majority proposals in 1912, have now thrown their whole weight upon the side of this Bill.
At this hour it is obviously impossible for me to speak at any length, nor is it necessary, because every point, it seems to me, has been taken up by one or other of the many eminent speakers who have addressed your Lordships, but there are just one or two things I would like to say. I suppose every member of your Lordships' House listened with the most profound attention to the speech of the most reverend Primate. We recognise the special difficulties of his position, but I cannot help feeling that the course which he felt it obligatory upon him to take is one that must bring a very great deal of disappointment to many people. The most reverend Primate said that this measure contained "timely and valuable" proposals for dealing with abuses which, in his own words, were "detrimental not only to marriage but to public morality", and in times past the leaders of the Church have thrown their whole weight upon endeavouring to eradicate the abuses which tended that way. Then the most reverend Prelate the Archbishop of York said he hoped that this measure would pass into law, but that he was not able to support it. One is grateful that they are not opposing it, but one would have hoped that, with that testimony to 845 the value of these reforms, they would have felt able to do something a little more positive.
They both of them gave as their reasons for a negative attitude in this matter that the proposals in this Bill were inconsistent with the teaching of our Lord as accepted by the Church. We have had weighty answers from two right reverend Prelates, and it is not necessary for me to attempt to go farther into that than to say that it is perfectly obvious that theological opinion is divided upon this matter. The most reverend Primate might have added that it has been divided for nineteen hundred years, that at no time in history has theological opinion been at one as to what exactly is meant by the text when the ideals of marriage have broken down. At the concluding stages of the Divorce Commission a very long and full appendix was put in dealing with all those controversies. All I would say to your Lordships is this, that the layman sees that there are three distinct and different Christian opinions—that marriage is indissoluble; that it is dissoluble only on the ground of adultery; and, taking note of a great and growing weight of opinion, that it is dissoluble wherever in fact the ideal has hopelessly broken down. He asks why in this matter of divorce alone we should treat the text as laying down a legislative enactment rather than enunciating general principles for the guidance of mankind.
The right reverend Prelate, the Bishop of St. Albans, poured scorn upon moving with modern thought, and the noble Marquess, Lord Salisbury, spoke with some contempt of mankind being on the move. But it is not a question of modern thought. It is not necessary to keep in touch with modern thought, but it is necessary so to adapt legislation that it is in keeping with entirely changed conditions of modern life. If you take desertion I would like to add a word to what was said by the noble and learned Lord who spoke just before me. In the days when the texts were written it was perfectly impossible for any human being to go far or to go untraced. Now, owing to mechanical means of progress, it is perfectly possible for a man to leave this country and go to the other end of the world, and where he has been traced in ninety-nine out of a hundred cases he has been found living a different life, married to some one else, with his wife 846 left here in the position of being neither married nor unmarried—a position not at all in keeping with the dictates of public morality.
It is not necessary in view of the many speeches to follow that any further. I turn for the very few moments left to me to what I conceive is the one great difficulty which confronts those who have spoken who are most sincerely interested in passing this Bill into law. If I may, I will take by way of illustration the speech of the noble Marquess, Lord Reading—a powerful and eloquent speech if he will allow me to say so—on lines adopted by other noble and learned Lords, and following Lord Atkin. The first part of the speech of the noble Marquess was devoted to a denunciation of Clause 1. He pointed out the grave hardships that would be inflicted upon many people who now can obtain divorce if that clause came into force. Throughout the discussion we had many speeches of the same kind. The noble Marquess ended by saying that this Bill was a "beneficent, temperate and long overdue measure to which he gave sincere and convinced support." I would suggest that really those are two speeches which cannot be reconciled one with the other.
We are now at the very end of June. Those who have followed this long controversy know very well how over and over again your Lordships have debated measures of this kind and have passed them through all stages, and then they have become like ships becalmed on the seas of time that is the enemy of private members' legislation. This Bill, as the noble and learned Lord, Lord Roche, said, is a balanced Bill. There is in it much with which some people disagree while they like another part. I would ask your Lordships when we come to the Committee stage, if we do, to consider very carefully whether the Bill represents gain or loss, for it is certain that there are some sections with which some noble Lords greatly disagree which in the opinion of others are vital. The most reverend Primate said that he regarded Clause 4 as vital. If your Lordships are going to spend a great deal of time making this Bill a perfect instrument, as, of course, you have every right to do, then you must also weigh carefully in your minds the chances whether that perfect instrument will be used.
847 Many of your Lordships can remember what happened in 1923. I introduced the same Bill as had been introduced on July 28th, 1914, by which my brother the secretary to the Royal Commission endeavoured to pass into law all those reforms on which there was general agreement. The noble and learned Viscount, Lord Buckmaster, to whose great zeal and matchless eloquence so much of the education of the public is due, thought that having passed a measure in 1920 through all stages in your Lordships' House testifying your belief that the Majority proposals should pass into law, it was not possible in 1923 to pass a lesser measure. He added with the full assent of your Lordships the controversial clause. The result was, as we know, that that measure proceeded no further. Let us by all means exercise our undoubted right to amend this Bill, but let us bear in mind also that time is our enemy. Every one of your Lordships, with three exceptions, has testified to the need of reform. The most reverend Primate said there was much in the Bill that he desired and that there were scandals that called for immediate reform—ironic words after so many years.
Let us remember that this is June. I would very respectfully urge upon those of your Lordships who have opposed so weightily the provisions of Clause 1 as it at present stands, that it might be possible to keep the principle embodied in that clause but to insert a provision by which the High Court should have power to grant leave to present a petition if satisfied that it was in the interest of the State. I cannot, of course, speak for the promoters, and prophecy in any political matter is very dangerous, but there is at least reason to suppose that if some such provision is inserted, and yet the principle of Clause 1 is retained, it would not be regarded with disfavour elsewhere. I would quote one line of verse:The chance is once, With all the links that wrought it in that form.We can all find much in this Bill to criticise, and I myself have no great love for Clause 1, which formed no part of the Majority Report, but this Bill has reached your Lordships' House only because it meets so many different conflicting views, and I would with such earnestness as is in my limited power urge 848 your Lordships not to lose this chance after a quarter of a century of passing into law reforms upon which, with almost no exceptions, your Lordships seem to be heartily in agreement.
§ LORD ELTISLEY
My Lords, a memorable and intensely human debate has come to its conclusion. The debate has emphasised a feeling of anxiety which every member of your Lordships' House appears to have on this important social question—a feeling that the time has come when something should be done to prevent the gradual breaking down of the marriage tie and to ensure the stability of the great institution of marriage. In view of the general desire that the debate should not occupy more time than is requisite, I know that your Lordships will forgive me if I do not venture to reply in detail to the many points raised. In the main they are Committee points and will receive, I know, the closest attention at a later stage. I will therefore only say one word of thanks for the generous measure of support and sympathy given to me in moving the Second Reading of this Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.