The Press. — London, England, 1853-11-12 00:00:00

652 REPORT ON THE LAW Ole• DIVORCE. Tnr. huportanee of a political question, and its interest, are two very different things, as every observer of parlia mentary proceedings has daily occasion to perceive. Sir Wood's India Bill at no time drew one-third of the at tendance which rewarded the amiable exertions ..f Mr. Stafford's persecutors. Colonial debates generally full within the same eategory—usefhl. but dull ; and all do matron of Snow, except where their lwaring on the patty '•alley of the moment lends an extraneous and artificial ex• eitement to their discussion. Hut all them are matters which, though they bench men's interest« nearly, do not •1e affect their feelings. It is otherwise withthe subject of the report before us, which, nevertheless. passed almost unnoticed, in a sewaiou by no mean« remarkable fur the keenness with which political warfare has been car vied on. _ . fn D e oernbor, Item, a comntbation watt appointed to in• coin+ into the laws of Intirriage and divorce—Lords Camp bell, lleaut 11111 l t, and Britt-saute, I tr. Imshititcloil, Sir NV. I'. Wood, Mr. Walpole, and Mr. Itouve►ie, being the V/ mnonk• 'dopers. Their labunrs+ were made public in the course of the present session, embodied in a long and eleleu►ate re port. and accompanied with brief but important evidence. Thin report, and the 11'611111.4 which it recommends, we propose• II I +-outsider. The Mate of the nowriage laws in Protestant countries. and, indeed, in modern Europe generally, is essentially imperfect and suutualusta—due imperfection and twoundy arising out of the want of a definite principle on which they s-au be• based. Is marriage, in set far as the law takes cognisance of it, a purely (-nil contract, or is it it religious ee•r'lllully? 1:0111a11 Littlasslicistst answers, without hesita tion, "Thu latter." Mode-u t society inclines to all opposite decision, but hesitates in its judgment, and shrinks from disturbing the enactmettlis of former genurations in it point MO delicate and beo deeply affect lug the relations of private tat eiety. From this doubt a state of things has grown up in which the practice of the law is at vauillilee with its theory, and custom with tradition. M'e speak, 111111 11111111 Spellk, Inelligively of the question of divorces is ciacal s. and not of those legal separations it neeputli et th,,e,), which have not the effect of dissolving the marriage tie, and in fact leave the legal rights of the parties where they were before, ex cept as regards their personal inn-wow-se. It is the theory Euglish juris p rudence theft a marriage. eriginally 011 1111 l 11N. legally dissolved by stay judicial process. The Ecclettiastieal k'ourtm have indeed the power to dissolve one ul•igiltally invalid, but this is not to 1.1...11k at tie already existing, but simply to declare it nott-existent. Wlll'l'- 4114' re•least• Cava► the ntswriage contrae•t k sought the n'• wetly its not in law, but legislation. So far as the judicial proems is concerted, main hags- remains intlisatoloble under till einsmistances, even its rights have l,t•e•11 openly violated by one of the l'lllitniellllll paKia Thi.4 remtriet' lew•emdv Wont Ilunuut l'atholie time!:. After the Reformation it was propewil to mum% e it. In the" Reformado Loom Evelesi:Latiearnm," prepared under .• the sanction of Crammer, if not rietnally drawn up by him. a now code of regulations was suggested, according to which, " when the husband or wifi• had committed adultery, a divorce was tamed, and the ploy Insight mun'y again. lint it' both were guilty, Plinee both *mist fain wider the MOM' etllltlt•lnnation, the first marriage nIP4 not to 101. Abtoittle desertion, pridracte.lll6Wllee, 111011111 enmities, a n d lasting cruelty, were all adjudged to he law grounds of divorce. Nit reconeiliation was Mettle:l6st wherever it entild he obtained, and sepanitions from bed and hoard were entirely abolished. It was, moreover. W. C4lll lllllleil that adultery should be 111 l by I „, i wtno imprisonment, or transportation for lit'e : and if the (grot tier were the husband he was to return to the wife her for time, and add to it shalt' of his own; or if the wife. she WWI 1.. forfeit her jointure, mill all the advantages n hick by law, custom. settlement. or promise. S:c., she might have otherwise derived fnaii her mairiage." 'Elie liberal principles herein laid down were seta iipon in at least one ease, that of 1.0111 Noithamption 1:1:•1 ). and probably in many others during the half centitry which ensued. lint in Ilkll an opposite decision was xllirtned : and tint only waft t h e doctrine of indissolubility re. e stal.. lisheil, but its rigour 14.esme practically greater than in roman eatholie tittles: "the various fictions out tie% ices in the shape of caminical il....trees and alleged pre contr.wts. which then afforded so many loopholes of escape. having been each and all put an end to by the reformation." Of the state of the law from 1601 to itgiti we have acareely any information. It would seem. however. that the extreme severity of the preceding generation was not relaxed; althotnet in the distnrbed times of the t •limmon wealth, and (haring the reaction of immorality s m e l l followed the overthrow of Puritanism, it may very probably have been set nt nought. The first reeonl of appliention to Parliament for the purpose of dissolving marriage on the ground of its previous violation is found in the ease of Lord /loos kltkitn, which led to a hot THE PRESS. debate, and was opposed by a majority of the bishops, who saw in the proposed innovation a dangerous surrender of ceclesimitical privileges. It was granted nevertheless ; a►id the precedent was confirmed, under circun►stances slightly different, in the cases of Lady Macclesfield mid tho I►uke of Norfolk. A new era had now commenced. " The right to obtain a divorce• of ciiirsia, - say the eommissioners, was definitively established. It was established, how. ever. in the rudest and most incomenient manner: for the proceeding WWI a judicial one by a legislative proceas, 111141 it hail all the Meow enienees which urcessarily result trout the dismission of such a question in a mixed and popular waleuably. At first only a few divorce hill. were passed—tot more than live were earried through Parliament before the accession of the house of Hanover. From 17 I:1 to 177.) their tun►ber was sixty ; that is to say, they averaged about laic a year. From 1775 to 17/ 4 0 they had increased to seventy-four : that is to say, upon an average, to about three a year; and from 1000 to lit•gi they unwanted to 110. two of these, via.. Lady NI acelestield's and the !take of Norfolk's cases, were without any sentence ecclesiastical: and several were without any previous verdict at law ; for no *tending ordem of either Howie of Parliament required the institution of tl►ese parliamentary proceedings until the )ear I;tei This tsuild not last ; and Lord Loughborough haul the credit of giving something like consistency and tone to the irregular proeoltire of the Lords. Ily his resolutions a previous trial before the Ecclesiastical Courts was ten dere(' necessary; and the legislative pact became thus the eonsequence and consummation of a judicial decision. lint what is thus gained in regularity is lost iu convenience. It ',venni absurd," say the commissioners, " that a case which has already bt•t•t proved thm•eo times," i.e., before a jury, before the Ecelesituitical Co►ut, and before one House of Parliament, " h Id be proved again." Yet this the law requires ; and the result is, an expense, in ordinary eases, of from :Vs It. to 1,1)001., possibly more. It follows, necessau•ily, that the relief which is quasi•judieially granted, not as a favour, but a right, to the wealthy suitor, is abso lutely denied to the immr. Having traced the history of the marliage laws front early to present times. the eommissioners proceed to Mill- Cate the points in which they appear to require mint. And here ft fillt44fitott is opeltrql, which► ilk its prac tical interest. in the consequences which it invobes, and iu the complexity of its component parts, is exceeded by none in the whole range of legislatien. Four different opinions have been held by legislators respecting the con• ditions on which the mintage tie• may be dissolved. I 1.1 " That it shall be wholly intlissoluble.'"l'his, we have seen, is the theory of the English law, though the practice has for nearly three cent►►ries been contrary. thereto. " That it shall Is' dissoluble on the ground of adultery only." This i, the practice of England and of some foreign countries. t 3.) "'That it at be dissoluble for other valid causes, such as cruelty, desertion, and the like ; the validity of the COMM) to be decided by some competent tribunal. So far ertiumer and the early English reformers were pre. pared to go; and such appears to have been at one tint WWI-1000) the nib., although it would be difficult to say how far Its legality was recognised either by the Govern ment or by the community. (4.) " That it shall be dissoluble, like any other partner ship, at the sill of the contracting parties " Of this ex treme relaxation only two preetAllitg exist, that of the Comm empire in its decline, and that of France during the progress of the first revolution. In some of the Alllo'lolll States then. is an approximation to it, lint law has here outrun the wishes of the people, and the doubtfill privilege is rarely e x e rcised. The conmiksisnwrm, in our judgment wisely, avoid all discussion of the last and first of these alternatives, in which praetice and the state of opinion fully justify them. Few protons will contend that an union which, by the crime of one of the parties, has ceased to exist, shall be maintained. on theoretical grounds, to the prohibition of the innocent party from contracting new ties. Few. again. think it possible or desirable, at least in the present condition of society, that the solemnity of a life long enga3ement should be replaced by an arbitrary and vague agreement. terminable at any moment by caprice. satiety, or incompatibility of temper. There remains, then, only the question whether cruelty, gross and con tinued, or wilful desertion. long persevered in, shall be held to justify dissolution of contract and remaniage? Much, perhaps, might be urged in favour of snch a view : but the one unanswerable argument against it t apart from the general inexpetlicney of relaxing a bond held sacred in all eonntritsl arises out of the inducement that would be held out to the petTetnition of such offences by making them the means Land the sole means) of escape from a detested couneetion. No mail shall take advantage of his own wrong " is a in common sense es well in law ; but it is manift stly where a doll, SATURDAY, able object is rendered legally obtainable by a breach of law. On this account mainly, notwithstanding the high adverse authorities already cited, we think the commis. slum's; right in expressing their opinion " that divorces 4 r i ne ,d u should not be extended beyond case', of adultery:* The most important reform which they propose. indeed the only one which involves any material departure from existinq anw►genlelds, is the constitution of a new tribunal, authorised to try all questions of divorce. without the preliminary ceremonies of a verdict at law and an ecclesiastical sentence. This tribunal to consist of a Vic e . Chancellor, a Common Law Judge. and a Judge of th.• Ecclesiastical Courts. Evident.• to be orally d.•livered, and the rules of evidence the saute with those which pre►ail in the Temporal Courts. No appeal to be allowed, except to the House of Lords. Of this proposal it is enough to say, that it extends to the poor that justice which has hitherto been limited to the rioh : that it simply provides an improved machinery for carrying out that which is avowedly the object of the present law ; that it infringes on uo principle, and violates no scruple. A change more beneticial, or• more simple, could not have been suggested. THE ALBERT MEMORIAL. To further the subscription for the testimonial to Prince Albert, a meeting was convened by the late Lord Mayor at the Mansion-house on Monday, his lord ship's presidence at this assembly being the last public act of his mayoralty. The object of the meet ing attracted a large audience, including some per sons of scientific celebrity and City influence. In an opening address the Loan MAYOR briefly explained himself upon two points—first, as to the propriety of erecting a statue, or other memorial, to Prince Albert, to commemorate the leading part which his Royal Highness had taken in the Great industrial Exhibition of IMSI : and secondly, to vin dieate himself, an humble and soon to be a private individual, for venturing to put himself at the head of the movement for that purpose. The Bishop of Oxvonn moved a resolution setting forth the great importance to all nations of that Ex hibition, which had comprised, and testified to, the chief products of their industry. He proceeded to define the purposes which their meeting that day was designed to accomplish : " They were met to forward the erection of a memorial for recording, in at proper way, the greatest fact in the in• thistrial history of the e try. If it was brought forward simply as a memorial to Prince Albert, he would not l• amongst those who adhered to it. If that meeting had for its purpose the awn) erection of a statue which should do honour to the domestic Virtues of his royal highness— virtues which be lied undoubtedly exhibited tier many years befitre the not unulantsive eyes of the public—if it wits merely 1111.180aed to erect a memorial in honour of those virtues, then he (the Bishop of Oxford) would not letve been there that day. I Hear. hear.) He entirely agreed with those who thought, however eminent those virtues, however he was dietinguished in the performance of his domestic antics, it were better to await the termini'• Lion of life before any memorial was proposed. But, if lie understood the preposition now before them aright, it was that the usehtlness and success of the Exhibition of Issl should he aeknowledged by a suitable memorial ; end he thought there were abundant reasons why this, rather than a later terriod, should be chosen for such a nieutorial. In the natural course of events, facts which at the time were deemed of importance passed away from the reetillection of men, and, when viewed from a distance, lost a large proportion of their proper magnitude. lie regarded the Exhibition as a great tact, and. if they wished to mark it by a memorial, they ought to do MO whilst it was yet fresh in their memory, so that he held this to lee the proper time, and he knew of no better place for it to be proposed than in the city of London. He thought that so important a fact as the existence of the Exhibition deserved t o he marked by a memorial ; anti looking at the position 4.f the city of London as regarded commercial aftairs—at its posi• tion in the development of human industry, and the her nonreble position the I ity held in the face of the nation — he knew of no act that would more deservedly east lumina on the City than recording its opinion in favour of this memorial. In the history of the pursuit of knowledge it was stated ley that great man and prifomul philosopher, Lord Bacon, that. of all the signet and else tnen of anti• quits', their greatest wan iota and lawgiver* were only lifted up to the dignity of worthies, the highest honours being reserved for those who developed the commodities for the comfort and support of man ; thus, w hil s t th e one took rank as demigods, the others—the followers of Ceres and her attendants—were ranked as gods, the greatest Ito• nom's being shown to those who could enrich and develop the resources of the land. The Exhibition had given a great start to the industry and iknerease of the commerce and comforts of the whole world—everything they took up proved that fact, and showed the importance which at. halted tee it. Holding these views, lie felt that whatever memorial might he proposed it would be impassible to avo id associating with it, in some way, the name of the illustrious Prince who had projected the Exhibition, though in what way that should be he did not know, and be supposed it would be left to the consideration of the committee who would have to examine the plans. tel course it would be distinctly understood that there should be no idle adulation of the Prince's merits—the Prince would lee himself the taro to spurn smeh flattery—but it was intended to fix in the mtwory of the people the part - -