The Express.
London, England, 1853-03-25 00:00:00

LONDON, FRIDAY, MARCH 25.

Tree Commissioners appointed to inquire into the
Law of Divorce have issued their Report, and it is
understood that this Report is to be the ground of
legislation during the present session. The existence
of the Commission snit the Report is evidence enough
that no time should be loot. and that ti ernment and
the Legislature are of that opinion ; for the difficulties
of th. are so many, and so extremely serious,
that veeryleisly has been willing to put off to the last
possible moment all action urn the subject. The
necessity for rime out of action, amending the pre-
sent state of the law, has been admitted, almost uni-
versally, since PC:9, when a small inetalmeut of re-
lief to certain sufferers under unhappy marriages
granted in the passage of the Infants was
Custody Bill. This bill peened by large majo-
rities in the Commons in 1338, was then
thrown out in the Lords, when Lord BROUGUAM
gave as his reason for opposing it the thorough bad-
ness of the marriage laws of this country, which
were so cruel and indefensible that, if any part was
touched, the whole mass must come down. Such a
reason for keeping things as they were was a clear
prophecy of change. The passage of the Infants'
Custody Bill the next year began it ; and during the
succeeding 'cars. opinion in favour of great changes
in the Law of Divorce has strengthened into an irro-
sistihk demand, and the first result is the report be-
fore us. The merest glance at the subject, whether
in the records of the House of Lords, or
in every mans observation of society, or in
the pages of this report, shows that the
evils of our present system must be intolerable
indeed to hale driven us into the thicket of difficul-
ties that we must struggle through to attain a better
state. The time is come; the thing has to be done;
and the business of every member of the Legislature
and of every man who is represented flute, is to
think, to thank seriously, to think apart from passion
and prejudice: for the matter is one in which we
have only a choice of difficulties, in which, for pecu-
liar reaaous, justice and expediency cannot at once
be attained, and in which the welfare of future
generations is more deeply involved than in any
other legislative acts of the day, with the one excep-
tion of educational measures.
The first hatch of difficulties involved is all con-
sideration of our Divorce Laws is found in the con-
fusion:of ideas prevalentamong us as to what marriage
is. Nut a few Protestants hold with the Catholics,
consciously or unconsciously, that it is a sacrament
and a bond, therefore indissoluble in every sense.
One of the Commissioners appends to the report be-
fore us his dissent from its chief recommendation, and
the grounds of it. On scriptural, as well as other
grounds, he concludes that not only should marriage
remain, as now. indissoluble under the law of Eng-
land, but that divorce should no longer be attainable
from the Legislature in any case. Some people think
that !Scripture warrants divorce in case of adultery,
and would have it for that cause alone, as now, but
by some more attainable and impartial method than
a special law passed for each case. Others, again,
seeing that cruelty is admitted as a second cause for
legal separation, do not see why it should not procure
the more complete relief of divorce; and these are
regarding, not the theological, but the moral view of
the subject. This moral view occasions and justi-
fies • great variety of opinion as to the limits
of divorce : but then comes in the political
view, and considerations of genealogy intervene, to
alter again the whole character of the argument.
Nothing, indeed, is so fatal to the moral view as the
political, in this particular matter. It is from this
regard to genealogical considerations ruling the de-
scent of property that proceeds that extraordinary
morality about the comparative guilt of the two
parties to a marriage, in case of infidelity, which was
uttered in the House of Loris twenty years ago, and
has been presented occasionally since, and which
strikes with amazement the lower orders in this
country, and all orders in some other countries. It
is assumed as a matter of course in our Legislature
that the sin of conjugal infidelity is immeasurably
greater in the wife than the husband ; and a murmur
of applause follows when a legislator asks whether
any father would not infinitely rather see his son
fall into vice than his daughter; whereas, the fanner
or tradesman, reading the debate next day, mutters
that the peer or the gentleman forgets that for the
son's sin somebody's daughter must fall. This con-
fusion of religious, moral and political considerations
would be enough to make the question difficult to
deal with. But there are other embarrassments at

the very outset.
The common law of England "deems so highly,
and v/...1 such mysterious reverence, of the nuptial
tie," th.it it has not always maintained that clearness
and consistency which would have saved much toil
in past times, and afforded some welcome guidance
now. The doctrine of indissolubility was sometimes
given up, and then resumed, among the fluctuations
of opinion which followed the Reformation ; so that
opposite judgments were given in the course of the
reign of ELIZABETII ; and any effect on opinion and
mural views that might have been produced since by
marriage being indissoluble by the laws of England,
has been broken up by the Parliamentary faculty of
granting divorce. Then again, there is the different
state of the law in Scotland compelling the observation
that either the English law must be very cruel, or
the Scotch very profligate. In Scotland, there were
ninety-five eases in the five years from 1838 to 1841,
while in England there have been 110 from the first
day of this century till now. Of the nlnety-five Scotch
divorces, one-third were at the suit of the wife;
whereas in England the wife cannot seek a divorce
at all, except in cases of unnatural atrocity; so that
only four successful snits are on record. In Scot-
land, the parties in the ninety-five cases were almost
all of the labouring classes, the expense being from
131. to 3W. , whereas in England divorce is wholly
out of the reach of all but the rich—the expense
rising from 300/. to several thousands. Wide limits
these for the right and wrong to lio between!
Again, there is the consideration that one of the two
parties in the case is wholly unrepresented, and that
the other party is the law maker. It is not merely
that only one party can plead in a case of opposing
interests; but that the pleading party decides as well
as argues the cue. It has hitherto been decided
by husbands that husbands alone shall be able to ob.
tarn the relief; and it is now recommended by the
Commissioners that while the facilities for divorce
shall be increesed, husbands shall still be the only
party to benefit by them. In order to justify this, a
necessary confusion is introduced as to whether the
practicability of divorce is a good or an eviL The
power of being divorced is shown to be good in the
case of the husband, but the impossibility of divorce
is asserted to be favourable to the happiness of the
wife. And this, side by side with the narrative of
a case related by Lord llaoconam, of which he says
that he "cannot conceive of a harder case," but which
is yet far from uncommon—the case of a lady main-
taining by her ability and industry an adulterous
husband, who claims all her earnings, and threatens
the seizure of her whole property. Such a liability
is to remain, by the recommendation of the Commis-
sioners ; and, no doubt, will remain under the new
Law of Divorce, against which wives have no power
of appeal •
The other suggestions are, that adultery shall be
still the only ground of complete divorce; that wil.
ful desertion shall be another ground of legal separa-
tion, in addition to the two, conjugal infidelity and
gross cruelty—which are admitted now—both par-
ties being able to obtain a separation for these causes;
that the verdict at law, and ecclesiastical sentence,
which must now be obtained as a title to divorce,
shall no longer be necessary, and that divorce shall
be legally obtainable without the intervention of
IParliament ; that a special tribunal shall have
charge of all questions of marriage and divorce (thus,
• by the way, facilitating the abolition of the
ecclesiastical courts), and that the three branches
of the law, equ:ty, common law, and ecclesiastical
jurisdiction, shall be united in this tribunal,
which shall consist of a vice-chancellor, a common-

law judge, and a judge of the Ecclesiastical Courts;
and that the methods shall be those of the improved
Chancery proceedings, with some modifications from
the existing procedure in such eases; that a largo
1 discretion he vested in the court, for providing tor
tile interests of the parties and their childien ; and
that the sole appeal shall be to the House ut Lords.
These are very important changes—likely to occa-
sion, if adopted, much good, though not of a very
radical sort, and some evil. The grand feature is the
transference of such a matter as this from exceptional
legislation to the domain of common law—the
making divorce obtainable by the laws of the coun-
t►v, which now interdict it. Few, we suppose, will
ANA to this. If divorce is obtainable by Act of Parlia-
ment, it cannot be an objectionable license; and if not
an objectionable license, it ought to be obtainable by
all who have an equal need of it, without distinction
of rank or wealth. It must follow front this that
the new court, like our other courts. must admit
pauper suits. Conjugal hatred is even more terrible
to the poor than to the rich, because they canuot so
easily part. It is cheering to think what may be
the effect on the brutal husbands and wives, of whom
we read in police reports with unavailing disgust or
pity, of this new proposed power of obtaining a
legal separation as a shelter from insult and cruelty.
The doubt that is said to hang about the matter
is lest the popular notions of marriage should become
unsettled by increased means of relief, and by that
want of uniformity of decision which is the at-
tendant
peril of all administration of law. On
the other hand, there is the hope that, by the
opening of means of relief, much of the profligacy
which arises from despair may be obviated, and that
the effect upon morality of an improvement in jus-
tice may be good rather than bad. It must be
pretty safe to assume this. The carelessness with
which marriages are formed, the mercenary motives
which enter into them, the levity with which they
arc undertaken, and the selfishness and audacity
with which they are brutalised under the present ,
system of practical indissolubility, afford ground for
very much more hope than fear from a change. If
present evils were not too great for longer endur-
ance, we should not be offered a change ; and those
who, under such circumstances, advise and prepare
for the change, are not likely to propose a move in
the wrong direction. The question is rather, whether
the relief should not have been extended so as to in.
elude more cases of the oppression of the wife, and
whether the facilities in England should not be at
least equalised with those of Scotland. These are
points for consideration ; and we can only hope that
all the wise and good men among us mill consider,
and give to our public and social morals the benefit
of their wisdom when the discussion comes on.