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Which were passed soon afterwards, had the effect of intro-
ducing a stricter practice than had previously been obtained
upon bills of this nature. By a subsequent order it was
provided that no bill to disallow a marriage on the ground
of adultery shall be received without a clause prohibiting
the marriage of the offending parties. But this clause is
struck out in committee or on the report, except in very
peculiar cases. In Dr. Campbell's case, where the adul-
tery was incestuous, a provision to that effect was inserted
in the Lords ; but the Commons refused to ratify it.
XXVIII. Since the passing of Lord Loughborough's
orders, all applications for divorces a vinculo have been sup-
ported by ecclesiastical sentences ; and all have been sup-
ported by verdicts at law, or accompanied by circumstances
which justified or explained the want of such verdicts.
Moreover, it appears that during the time when the
judicial business of that house was under the guidance of
Lord Eldon and Lord Itedeadale, it was by no means un-
usual to examine the petitioner ; though for the last twenty
- years, we believe, there is no instance of such an examina-
tion having occurred. In Heneage's Divorce Bill the per-
sonal attendance of the petitioner was dispensed with, upon
proof that his domestic affliction affected his health so
much that he was obliged to go to a warmer climate ;
and in Llewellyn's case, in the session of 1851, the Peers
refused to examine the petitioner, though tendered for that

PM. Divorce bills in the Commons were originally
determined in the whole house. But that unseemly and
inconvenient practice was put an end to on the motion of
Labouchere, in the year 1840, when the house referred
them to a select committee of nine members, of whom
three are a quorum. An instruction is given to the com-
mittee that they do hear counsel and examine witnesses for
the bill ; and also that they do hear counsel and examine
witnesses against the bill, if the parties concerned think fit
to be heard by counsel or produce witnesses. From the
words of the instruction, it is considered that the prosecu-
tor is bound to examine witnesses, or otherwise substan-
tiate the allegations of the bill ; and that the last part of
the instruction only is permissive in regard to parties
opposing the bill. The proceedings in the Commons have
acquired by this change a more judicial character; but it
seems absurd that a case which has been already proved
three times should be proved again.
XXX. Under ordinary circumstances, a divorce bill
may be obtained at the snit of the husband, but not at the
suit of the wife. It may be obtained almost as a matter
of right, at the suit of the husband, when the wife is con-
victed of infidelity, and the conduct of the husband is
irreproachable. But it cannot be obtained at the snit of
the wife, except in cases of aggravated enormity, such, for
instance, as incestuous intercourse with the wife's rela-
tions, which precludes the possibility of future reconcilia-
tion. In four cases of this description, Parliament has
interfered. -Unless, however, there are circumstances of
aggravation, constituting an exception to the general rule,
it has always declined to do so. Two propositions may
therefore be affirmed. First, that the wife has no title to
ask for a divorce a vinculo when she is aggrieved only by
adultery ; and secondly, that the husband, aggrieved only
by adultery, can demand, as it were ex dibito justicia, a
divorce ct vinculo, unless his own conduct has been censur-
able.

XXXI. The provisions of a divorce bill are in the dis-
cretion of Parliament; and in this respect there is some ad-
vantage in bringing these questions under the jurisdiction of
the Legislature, as other courts are bound by rules. Parliament
may mould and adapt its relief according to the facts and
exigencies of the case. In former times, it was asked to
provide, by express enactment, that the divorce wife should
not be left in a state of destitution. According to the
modern practice, this is a matter that is ordinarily effected
by private arrangement ; but it is never neglect. "There
is in the House of Commons," Mr. Macqueen observes (and
the observation is perfectly correct), " a functionary called
`The Ladies' Friend' (an office generally filled by some
member distinguished for his attention to the private busi-
ness of the house), whose duty it is to see that the husband
petitioning for divorce makes some suitable but moderate
provision for the divorced wife. This he attends to on all
occasions ; not by inserting the intended provisions of the
bill itself, for fear it should be rejected by the other House
of Parliament, but by taking care that it is legally secured
to her, before the bill has passed through committee.
XXXII. The bill, as it is finally settled, seldom contains
more than five clauses. The first dissolves the marriage ;
the second enables the petitioning husband to marry again;
the third entitles him to all the rights of a husband as re-
gards the property of any after-taken wife, and gives to
such wife, as regards his property, the rights of a surviv-
ing widow ; the fourth deprives the divorced wife of any.
rights that, but for the act, she might have had as his
widow, in the event of her survivorship; and the fifth ex-
cludes the husband.from any rights which he might other-
wise have claimed in any property acquired by his wife,
after the dissolution of the marriage. When the wife can
obtain a divorce against the husband, the property-clauses
are vice versa substantially the same as those which are
found in divorce bills by the husband against the wife.
Her they protect, and him they exclude, as regards any
property belonging to her, which is not affected by a pre -
vious settlement,
XXXIII. Having thus explained what the law is, as
well with regard to divorces a mend et thoro, as also with
regard to divorces a vinculo matrimonii, it is now our duty
to submit to your Majesty the alterations and improve-
ments which, according to the judgment of your Majesty's
Commissioners, may be made in it with advantage, and
also with safety. "It mast be admitted," (to adopt the
language of an eminent jurist,) "that the intrinsic difficul-'
ties of the subject are exceedingly great. The dangerous
extremes are absolute and universal indissolubility on the
one hand, which has been found to be productive of a
general connivance at infidelity, and consequently of a
general disoluteness of manners, and on the other, a con-
siderable facility of divorce in cases very difficult to be de-
fined—a practice (to say nothing of other evil consequences)
which would be at variance with the institution of marri-
age, intended chiefly to protect children from the incon-
stancy of parents, and next to guard women from the in-
constancy of husbands, who, if divorce were procurable
for any but clearly defined and most satisfactorily proved
facts, would be enabled, as soon as they were tired of their
wives, to make the situation of the helpless female so un-
easy, that they must consent to a divorce. To make the
dissolution of marriage in the proper case alike accessible
to all is one of the objects to which, in great cities, and in
highly civilised countries, it is hardest to point out a safe
road." These just observations should be carefully borne
in mind in any alteration to be made in our law.
XXXIV. Four points will have to be considered. First,
the causes for which divorces should be granted, and whe-
ther they should be confined to a partial separation, or ex-
tended to a dissolution of the marriage bond. Secondly,
the grounds or pleas in defence which should operate as a
bar to them. Thirdly, the terms upon which they should
be granted, and the legal consequences with which they
should be attended. And, fourthly, the courts and mode
of procedure by which such questions should be tried and
determined.
XXXV. The causes of divorce cE mem& et thoro are,
adultery and cruelty. There can hardly be a doubt that
both these causes ought still to be allowed. The for-
mer is plainly so gross a violation of the marriage con-
tract, and so utter a destruction of all the objects for
which the contract was made, that reason and re-
ligion alike proclaim that the innocent party should
no longer be constrained to live with the offender,
when he, in truth, by his own misconduct, has him-
self put an end to those engagements, which must al-
ways be considered, in a Christian country, as mutual and
reciprocal. The latter, as interpreted by the ecclesiastical
judges, amounting in fact, to a reasonable apprehension of
danger to life, limb, or health, renders it impossible to
discharge the duties of married life ; and the duty of self-
preservation must obviously take precedence of the duties
of marriage, which are secondary both in commencement
and. obligation.
XXXVI. It has sometimes been urged, that cruelty
should have a more extended signification ; that other
causes of divorce, or, at least, of separation from bed and
board,. should be allowed, such as mutual dislike, incom-
patibility of temper, neglect, severity, and repeated pro-
vocation ; and that these separations might either be vo-
luntary, if the parties were forbidden to seek such a disso-
lution of the marriage contract as would leave them at
liberty to marry again. We cannot assent to the sugges-
tions. The arguments against them are put so forcibly by
Lord Stowell, and Hume and Paley, that, in the judgment
of your Majesty's commissioners, they are absolutely unan-
swerable, "To vindicate the policy of the law," says
Lord Stowell, " is no necessary part of the office of a judge;
but if it were, it would not be difficult to show that the
law in this respect has acted with its usual wisdom and
humanity, with that true wisdom and that real hu-
manity that regards the general interests of mankind.
For though, in particular cases, the repugnance of the law
to dissolve the obligations of matrimonial cohabitation may
operate with great severity upon individuals, yet it must
be carefully remembered, that the general happiness of the
married life is secured by its indissolubility. When people
understand that they must live together, except for a very
few reasons known to the law, they learn to soften by mu-
tual accommodation that yoke which they know they can-
not shake off ; they become good husbands and good wives,
from the necessity of remaining husbands and wives ; for
necessity is a powerful master in teaching the duties which
it imposes. If it were once understood, that upon mutual
disgust married persons might be legally separated, many
couples who now pass through the world with mutual com-
fort, with attention to their common offspring, and to the
moral order of civil society, might at this moment have
been living in a state of mutual unkindness, in a state of
estrangement from their common offspring, and in a state
of the most licentious and unreserved immorality. In this
ease, as in many others, the happiness of some individuals
must be sacrificed to the greater.. and more general good."
Further on he adds, " And if it be complained that by
(ths) inactivity of the courts much injustice may be suf-
fered, andinuell
pretend to
the answer is, that courts
ofj ustice do not
goo redress
to furnish cures for all the miseries
of human life.
noyfuerteesrs or punish gross violation of
duty, but they go
; they cannot make men vir-
tuous ; and, as the happiness of the world depends upon its
virtue, there may be mu
removariness in it which human
laws cannot undertake to unh
xxxVl-1. Hume and Paley have equally well shown the
danger of recognising, or in
?ea' inquiredvya enc Vt.
ouragmg pe ion-
ing for divorce, unless it
conugal some paramount
Zrageous cruelty. In
necessity,
theyi contend thit it would be manifestl
the first plasaceu:
inconsistent with the duty which the parents owe to theiyr
ce no duty can be so well fulfilled as by their
te tt
injusticecare ltuhatthewosielohnbd:Pdloance:toththeye
children, sin'
to the gra_
cohabitation and uni
point out the extreme
right, as, well as the
wife, since she has a
titude of her children, andtnneecceosmsafriorltyodf their society, of
sesparationd Place'
both of which she is almost
InePth.evettairby
dismission from her husband's family.
they say that it would tend tocroe
quarrels ain-
terests, which must be the source fateenadleS
the wife, being not secure of her establisnhd-
suspicions ; for
menCwould still be driving some
and this would beget,
place, it would destroy
peculation on one side, and mistrust'
on the other. And in the fourth
the necessity for mutual compliance,
is on a sense of duty or a senseof which, founded as it
interest, constitutes,
in fact, the best foundation for mutual happiness. " We
need not, therefore, be afraid of drawing the marriage knot
which chiefly subsists by friendship, the closest possible.
solid and The amity between the persons, when it is is
waver-
e sin-
cere, will rather gain
.by it ; and where it
ine• and uncertain, this is the best expedient for fixing
it. How many frivolous quarrels and disgusts are there,
forget,
which people of common prudence endeavour to
when they lie under a necessity of passing their
lives Loge'
ther, but which soon would be inflamed into the most
deadly hatred were they pursued to the utmost, under the

prospect of an easy separation.
XXXVIII. For these reasons, we think that our laws,
while allowing divdrces d mens 4 et thoro in cause of adul-
tery and oubiageens cruelty, have wisely denied the like
privileges to mere dislike, contrariety of temper, severity,
neglect, or voluntary arrangements. There is another
cause, however, which so entirely frustrates all the objects
of the marriage union, that it may reasonably be doubted
whether it should not be put on the same footing as cases
of cruelty. We allude to wilful and obstinate desertion.
Our old Reformers considered that this was so gross a breach
of all the obligations, human and divine, which the husband
and wife owe to each other, that in that case they would
have allowed the deserted party to eater again into fresh

nuptials. At the same time they were so impressed with
the importance of keeping the contract unbroken that, be-
. .

fore the complainant could obtain a dissolution of it, every
kind of means was previously to be exhausted, exhortation
and counsel, and even punishment, to bring the offender
back to his duty ; and in case of his absence, an interval
was prescribed of two or three years, for the chance of his
return, that nothing might be done with levity or rashness.
In other Protestant countries that offence, when properly

establislied,i;;TnsidereCl7. scriptural ground of divorce, :
even d vinculo matrimonii. In Scotland, also, if it be wil-
fully persevered in for four years, followed by a judicial
requisition of conjugal rights on the part of the complain-
ant, it warrants a dissolution of the marriage contract. In
this country desertion must be coupled with cruelty before
it can entitle the abandoned party to a sentence of separa-
tion ; but in reason, in principle, and in its moral conse-
quences, it can hardly be distinguished from cruelty itself.
We are, therefore, of opinion upon all these grounds, and
especially for the purpose of protecting the wife from the
wanton abandonment, as well as from the infidelity and
tyranny of the husband, that wilful desertion, like adultery
and cruelty, should enable her to ask judicial relief, if not
by a sentence of divorce a menet et thoro, at least by an
award of proper alimony for her separate maintenance
where the desertion has continued for a period to be limited
by tle2 Legislature.
xlic
. Though these three causes may justify a sepa-
ration from bed and board, it does not fellow that they will
authorise a dissolution of the marriage bond, so as to leave
either party free to marry again ; for it is that liberty in
which the danger and mischief of divorces principally con-
sist. Adultery may be, and in Protestant countries it is,
generally, deemed a sufficient reason for rescinding thel
union, because it is an offence which destroys altogether
the primary objects of the married state, by introducing,
in some instances, a confusion of offspring ; by cutting off,
in others, all hope of succession ; and by diverting, in all,
the affections and feelings into strange channels, which
reason and religion forbid them to flow in. But these evils
cannot necessarily be predicated as the certain results of
the other causes; for in them at least there is always a
possibility of future reconciliation ; and if it be possible, it
is for the interests, the happiness the well-being of society
—especially that part of it which is most exposed and least
protected—the women and children—that in such a matter
the door of reconciliation should not be closed. We are,
therefore, of opinion that divorces a vinculo should not be
extended beyond cases of adultery.
XL. Divorces a mend et thoro should, for the causes
above adverted to, be allowed to the wife as well as to the
husband, and desertion should entitle the wife to a remedy
by way of alimony ; but whether divorces a vincido should
be granted at the suit of the wife with the same facilities as
at the suit of the husband, is a question which has elicited
much difference of opinion. There are four instances in
which wives have succeeded in procuring divorces d vinculo
from Parliament ; but in these the husbands were guilty
of other offences besides adultery, which were held either
to preclude or absolve the complainants from further
cohabitation. In two the adultery was incestuous. In
the third there was profligacy, deceit, abandonment,
and the grossest injury done to the woman which villany
could inflict. In the fourth there was bigamy. With
these exceptions, there is no example of a divorce d vinculo
being granted by Parliament at the suit of the woman.
• The applications which have been made on the ground of
adultery, and that alone, have always failed. In Mrs.
Teush's case, Lord Eldon observed that he never recollected
a more favourable representation given "of any woman ;
but yei on general grounds of public morality, he felt it
his painful duty to give a negative to the original motion,"
that the bill should be read a second time. In Mrs. Mof-
/ fatt's case, however, he seems to have changed his opinion,
and moved the second reading of that lady's bill, saying
that "he saw no reason why a woman was not as much
entitled to sue for divorce as a man." But in this opinion
he was overruled by Lord Chancellor Brougham, who re-
marked " that it should be a case extraordinary in its enor-
mity to entitle the female to such relief. He begged their
lordships would look at such a proceeding as this ; every
man who desired to get rid of a wife has only to go and
seek a mistress, and, as the natural consequence of such
conduct, to desert his wife, and therefore he instantly
drives her to an application to the house ; a divorce is ob-
tained, and his purpose is secured. He thought the best
protection which could be imparted to the bonds of matri-
mony was, to abide by our ancient practice with respect to
such cases. Parliament could afford the wife no remedy
without at the same time setting the husband free from
those shackles which it was his object to get rid of." We
concur in the conclusion ; for it is to be remembered, ac-
, corclmg to the just observation of Dr. Johnson, that " the
difference between the adultery of the husband and the
adultery of the wife" (socially speaking) "is boundless."
It is on this account that a divorce d vinculo has been al-

lowed in one case and not in the other ; and if it were al-
lowed in both cases alike, we fear it would lead to all the
evils of voluntary agreement for terminating the union.
Such an opportunity, with the ill-disposed, would not be
lost ; sh-ould it be conceded, there is reason to apprehend
that in many instances the husband would form a second
connection in order to get rid of the first. According to
the testimony of Chancellor Kent, it has produced that re-
sult in soma of the states of America. In cases of incest,
bigamy, or the like, it might be proper to give the wife the
power to institute a suit for a divorce, a vinculo fnatri-
monii but as a general rule, and in all other cases of ag-
gravated enormity, which may possibly arise, but cannot
be defined, we think that the remedy should be left for the
Legislature, and for that alone. The relief granted to
Miss Wharton, Miss Knight, and Miss Turner, constitute
precedents which will assuredly be followed by Parliament
when special circumstances demand its interference.
XLI. The next point which we have to consider is the
ground of defence that should operate as a bar in a suit for
divorce. When both parties are in the same guilt neither
can claim the vindication of a law which each has broken,
nor reasonably complain of the breach of a contract which
each has violated. When one of them has connived at the
guilt of the other, that connivance involves criminality, if
it be more than mere negligence, over-confidence, and dul-
ness of comprehension—if it amounts, in fact, to consent,
acquiescence, or intentional occurrence ; and, therefore, in
point of law, as well as in point of morals, it bars relief on
account of adultery which itself has occasioned or allowed
to take place. And when the parties are reconciled to
each other, and the guilt is forgiven by subsequent cohabi-
tation, it would be clearly impolitic, in
-the highest degree,

to reopen a matter which has thus been settled by the
parties themselves. We are therefore of opinion that re-
crimination, connivance, and condonation, should still
operate as pleas in bar, either for divorce a mend et thoro,
or for divorce d lined) matrimonii. In these respects we
would leave the law as it is ; but, with reference to recri-
mination, we would carry it further. At present the
husband is not barred from a sentence of divorce on
account of the wife's adultery merely because he him-
self has neglected or violated the most sacred obli-
gations of the conjugal bond, as in the case of cruelty
or desertion, but only when he has been guilty of
a like offence. The cruelty and desertion of the hus-
band, however, is so gross a violation of his marital
duties, and exposes the wife to so many temptations, that
even if she fails in fidelity to him, we think that he is the
last person who should be heard to complain of it. We
would therefore recommend that gross cruelty, and wilful
desertion should be recognised as pleas in bar to a hus-
band's suit for separation or divorce, on what ground so-
ever the relief might be sought.
XLII; We have next to consider the terms upon which
divorces should be granted, and the legal consequences with
which they should be attended. But little alteration ap-
peared to be required in this respect as regards divorces
d mend et thoro. The first important matter is to secure
to the wife, during the period of her separation, a proper
provision by way of maintenance ; and this has been done
with a judicious discretion, according to the circumstances
and condition of the husband. There is one rule, how-
ever, with reference to the costs of suit which is somewhat
questionable ; for it is founded on a state of things no
longer existing. The rule is, that "upon general princi-
ples the costs of the wife must be defrayed by the husband,
who is presumed to possess the whole property." Now,
this presumption is sometimes erroneous ; for, by the mo-
dern usage, the wife is entitled, as often as not, to sepa-
rate property, independent of her husband ; we therefore
think that this rule should be no longer imperative. It
would be better to leave the question of costs, like the
question of alimony, in the discretion of the court which
tries the case.
XLIII. With regard to divorces d vinculo matrimonii,
there may be more difficulty. As the law now stands,
Parliament can take care that justice is done in every case.
Its power is supreme ; and if, in this matter, it is to dele-
gate that power to another tribunal, which is strictly judi-
cial, as we propose it should be, it must, on the one hand,
invest that tribunal with a large discretion in adjusting the
rights of parents and children, while it ought, on the other,
to restrain that discretion within clearly ascertained and
well-defined limits. As a general rule, the future rights,
interests, obligations, and liabilities, both of the husband
and wife, against each other, should cease altogether with
the sentence of divorce ; and for that purpose the sentence
should contain provisions similar in principle to those which
are usually inserted in divorce bill. Further than this, the
terms or the decree cannot properly be prescribed. Every
case will have to stand on its own merits, and it must be
regulated by its own specialities : for which reason the
Court should be clothed with ample authority to do com-
plete justice. It cannot vary, modify, or confirm any pre-
vious settlements—so far as they affect the relative inte-
rests of husband and wife—to secure such provision for the
wife and children as circumstances may require, and to
decide in whose custody the children shall remain, and
how and in what manner they shall be brought up and edu-
cated. With respect to the parents, the law should regard
them as single persons, relatively to each other, from that
time forward. With respect to the children, they should
be made wards of court, and placed entirely under its guar-
dianship and control.
xriv. The fourth and last point which we have to con-
sider is, the court or courts and mode of procedure by which
that question should be tried and determined. Three tri-
bunals must now be resorted to : a court of law for damages
against the adulterer ; an ecclesiastical court for a divorce
d mensd et thoro ; and the Imperial Parliament for a dis-
solving statute. The great expense and the long delay of
these proceedings is a grievous hardship and oppression to
individuals, and they amount in many cases to a denial of
justice. Even in an unopposed suit, the minimum expense
of obtaining a sentence of divorce in the Consistory Court
of London would vary from 1201. to 1401. at the least, and
the case would occupy about two months. If it were
opposed, the expense would range from 3001. to 5001. and
upwards (in heavy cases to much more), and it would take
from one to two or three years before it was decided. The
proceedings also do not terminate here ; but there is an
appeal to the Court of Arches, and from thence to the
Judicial Committee. The expense of an action at law will
depend in a great measure on the nature of the case, and
the extent to which it is contested. The expenses in Par-
liament, exclusive of counsel's fees, charges for witnesses,
and the solicitor's own bill, which amount, no doubt, to
a considerable sum, average about 2001. With the other
charges they would possibly be doubled ; so that the total
cost under the most favourable circumstances, of obtain-
ing a divorce a vinculo matrimonii can hardly be leas
it MOl- or 800/. ; and when the matter is much litigated,
ltwould probably reach some thousands. In Scotland the
average cost of rescinding a marriage is said to be 201., and
that hen there is no opposition, 20/. will suffice. In Scot-
all ; and it is not privilegennaworth
land w,
also, it is notunworthy
o f
notice,f for the rich,
that
out
tt
ofa right 9 4 ea forse
s
between November, 1836, and November, 1841 the parties
sarxii„.
bVy. TheP arl
itahmr eeentary
i tribunals
eg u
litigant were almost all of the lower classes.
P
lwa
thiiocnhs afroer tah udsi
vroe
rnodee rae dvni
vinculo
would not be required provided these questions could be sub-
mitted to a court in which the country has confidence. The
object of having such numerous proceedings appears to have
been to satisfy the Legislature that there is no collusion
between
proved,
,but
the whol the
c case
s parties;e has been thoroughly and fully examined and
before
the Legislature will disturb a unionsosacred
in its nature, that the suit is a bond fide one ; that
and so important in its consequences. And
yet these
precautions are anything satisfactory, even for
the purpose for
which they were intended; for in several
cases, where the husband has recovered large damages at
law, the bill for a divorce has been rejected by the House
of Lords—while in others, where the damages have been
In such a state of
succeeded.
merely nominal, the bill has
ce to be drawn from them is,
things the only fair inference