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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
dicial usiness of that house was under the guidance of
LoLrd Eldon and Lord Redesdale, 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
purpose.
-S(IX. 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
Mr. 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 aho 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 suit of the husband, but not at the
suit of the wife. It may be obtained almost as a matter
of right, at the snit 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 suit 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 reconcilial
tion. In four cases of this description, Parlia.mant 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 vineulo when she is aggrieved only by
adultery ; and secondly, that the husband, aggrieved only
•by adultery, can demand, as it were ex dibito Justieice, a
divorce a vineulo, 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 Legialature,o.s 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 neglected. "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.
Mall. 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 -
vions settlement,
XXXIII. Having thus explained what the law is, as
well with regard to divorces d mens 4 et thoro, as also with
regard to divorces et vinculo matrintonii, 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 must 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 d mend 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
case, as in many others, the happiness of some individuals
must be sacrificed to the greater and more general good."
Farther on he adds, " And if it be complained that by
(the) inactivity of the courts much injustice may be suf-
fered, andmuch misery produced, theanswer is, that courts
ofjustice do not pretend to furnish cures for all the miseries_
of human life. They redress or punish
grossviolmatinon .orf:
duty, but they go no further ; they cannotmake
tuons ; and, as the happiness of the world depends uleionv!'its
virtue, there may be much unhappiness in it
which human
laws cannot undertake to remove.
XXXVII. Hume and Paley have equally well shown the
danger of recognising, or in any way encouraging petition-
ing for divorce, unless it is
required by some paramount
necessity, as in conjugal infidelity or outrageous cruelty. In
the first place, they contend that it `would be manifestly
inconsistent with the duty which thedutybe parents owe to their
wtehlel scoria
palaces by, tthheeiry
children,
and united care.t.
as the father cohabitation
us lee that would doneto the
point out the hasextreme injustice
as well
• she
wife, since
n,..and the comfort of
a right,
he third
their to
• the gra-
titude of her children,
s almost necessaril d society, of
both of which she , .1 ePrived, by her
her husnana lallll y.
place,
dismission fropa tend to create a Be
they say that
it would _ paration of in-
terests,be the source of
endless rieeeeeh,
which must
being not secure ofand
• • for the wife, her establish-
meat,suspicions ; driving some separate end or project - would still be
peculation on one side, .4a mistrust
on this would beget
on the other. And in the
fourth place, it would destroy
the necessity for mutual compliance, which, founded as a
is on a sense of duty or a sense of interest, constitutes,
in.;
in fact, the best foundation for mutual happiness. " W
need not, therefore, be afraid of drawing the maniageknot
which chiefly subsists by, friendship, the closest possible.
The amity between the persons, when it is solid and sin-
cere, will rather gain
.by it ; and where it is waver-
ing and uncertain,
this is the ,best expedient for fixing
it. How many frivolous quarrels and disgusts are there,
which people of common prudence endeavour to forget,
when they lie under a necessity of passing their lives toge-
ther, but which soon would-be
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 divorces d mensci et thoro in cause of adul-
tery and outrageous 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 eases
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 enter 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
established, is considered a scriptural ground of divorce,
even d vincula matrimonii. In Scotland, also, if it be wil-
fully perseyered 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 mend 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 the Legislature.
XXXIX. 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 9
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 mends 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 vinculo 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 a 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 a 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 yet 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. Ile 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-
cording 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 a 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; should 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.
suit in some of the states of America. In cases of incest,
. bigamy, or the liker, it might be proper to give the wife the
power to institute a suit for a divorce, et vinculo
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 tho
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 divorced mend et thoro,
or for divorce a vinculo 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 sd,-
eller 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
mensel et thoro. The first important matter is to secure
to the wife, during the period of her separation, a proptir
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, howi-
ever, with reference to the costs of suit which is somewhatt
questionable ; for it is founded on a state of things'nP
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." Nov,
this presumption is sometimes erroneous; for, by the me-
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 a 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 2 • 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 ono 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.
XLIV. The fourth and last point which wo 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
a menet 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
rodunider the most favourable circumstances, of obtain-
thana divorce a vinculo matrimonii can hardly be less
700/. or 800/. ; and when the matter is much litigated,
atvvretu probably reach some thousands. In Scotland the
thata cost of rescinding a marriage is said to be 20/., and
when there is no opposition, 201. will suffice. In Scot-
land, also, it is not a privilege for the rich, but a right for
litigant between
Wall ; and it is not unworthy of notice, that out of 94 cases
Neorvember 1830, and November, 1841, the parties
e almost all of the lower classes.
saryXLbVy.
PliTahretahmree tribunals which are thus rendered neces-
entaryregu,ations for a divorce a vinculo
provided
would not be required
mitted to a court in which the country h
as confidence. The
object' of having such numerous proceedings appears to have
been to satisfy the Leg,islature that there is no collusion
between the parties ; that the suit is a bond fide one ; that
diitssturb consequences. a union so sacred And
the whole case has been thoroughly and fully examined and
proved, beforetnhde
sLoegiimslpaotrturaenl ill
in
nature,yinetittsheseprecfr which they were and
sare anywthineg
nuttesatisfactory, 1 even for
cases,
e
the pprpose
recovered large damages at
the damageswherethehas have been
merely nominal,
the bill
f has succeeded. In such a state of
things the only fair ere pc" to lug drawn from them is,

that one tribunal which can satisfy itself of the proper re-
lief
to be given or withheld is better than three which dis,
trust each other.. The verdict at law is practically value-
less and if the proceedings before the Legislature were as
regular and searching as those in a court of justice, the
ecclesiastical sentence would be so too.
XLVI. We are, therefore, of opinion that in this, as in
every case which has to be submitted to judicial investiga-
tion, one tribunal (subject to au, appeal in the event of a
miscarriage) is or ought to be sufficient of itself for admi-
nistering to the suitors complete justice, without having
recourse to extraneous aid. But to prevent collusion great
care would be required. The testimony should be oral,
principally at least if not entirely, instead of being taken
as it is now in the ecclesiastical courts, upon written an-
swers to written interrogatories, where the second and
every succeeding question is propounded to the witness
without the propounder knowing what answer has been
given to the first ; and where the party who cross-examines
the witness knows nothing whatever of the examination
in chief, except so far as he is able to conjecture from the
plea upon which the witness is to be examined, and his
name. Although, however, it is desirable that the' evi-
dence should be principally oral, there may be great advan-
tage in verifying tha facts in the first instance, either by the
affirmation of the party or by written depositions. In Scot-
land the prosecutor is bound to take an oath which is called
the oath de ealumnid, pledging his belief to the correctness
of the suit, and disclaiming at the same time all collusion in
the matter. A condition of this kind might not unreason-
ably be required as a guarantee for the passing of a divorce
suit in England; for when the Parliamentary safeguards are
taken away, collusion will be the mischief most easy to to
practise, and most difficult to guard against. If the evidence
is oral, it is equally important that it should be taken down
at the time by an officer of the court and in the presence of
the parties, "not ordinarily by question or answer, but
in the form of a narrative ;" and when completed it should
be read over to the witness and signed by him as his testi-
mony. In addition to the evidence so taken, the judge
should have the power of ordering other witnesses to be
produced, who might,' in his opinion, throw light on the
subject, and also of examining the parties themselves.

ft.LVII. We propose to adhere to the rule that the mere
confession of the defendant, unaccompanied by other cir-
cumstances, should not of itself be sufficient proof of con-
jugal infidelity. This rule has been acted upon for ages in
courts of ecclesiastical jurisdiction, and forms the subject
of an express canon (No. 105) passed in 1603, for the regu-
lations of prooeedingi upon causes matrimonial. It has
been also recognised, and, in some instances, very rigidly
enforced, by the House of Lords ; but with this ra-
tional modification at the same time—that whenever
collateral circumstances appear, tending to the proof
of adultery, evidence by confession will be received in
confirmation. Such collateral circumstances, however,
must be primarily established, so as to lay a foun-
dation for the reception of the evidence by confession,
which, when so supported, is not only receivable, but is
indeed the strongest evidence that can be well imagined of
guilty consummation.
XLVIII. If the power of granting a divorced vinculo is
removed from 'Parliament, it will be necessary to determine
to what court the poiver shall be transferred. Your Ma-
jesty's commissioners have experienced great difficulty in
solving this Tiestion. The courts of law, the Privy Coun-
cil, the ecclesiastical courts, and the courts of chancery
have all been suggested.. There are objections to each and
all of these proposals. Divorce is a subject which requires
care and time for the due investigation of it ; and, there-
fore, it should be referred to the calm deliberation of one
or more judges, rather than to the verdict of a jury. The
Privy Council is essentially a court of appeal, with differ-
ent judges sitting from time to time, and with no machi-
nery for coodUcting the investigation until the cause is
ripe for hearing. In the'Ecclesiastical Court there would
be some advantage in having a bar well acquainted with the
subject ; but until those reforms and improvements are
made in them which have been so often recommended by
both Houses of Parliament, we doubt whether they would
be likely to give satisfaction if the determination of such a
question as that of divorce a vineulo matrimonii weresnow
confided to them for-the first time. The Court of Chan-
cery in its present state' has all the elements of a good
tribunal for dealing_with this matter. Its form of plead-
ings, and its mode of procedure, as regulated. and improved
by the recent statute, would readily be adapted to all the
suggestions which we have pointed out above. But there
is one grqat objection to it—and that is, that the entire
dissolution of the marriage bond ought hardly to be left
to the unaided decision of a single judge. We feel the
force of the objection, and we think that in this matter a
new tribunal should-be constituted, consisting of a judge
of the Court of 'Chancery, a common law judge, and a
judge of the Ecclesiastical Court. Such a tribunal would
combine the high principles of equitable jurisprudence
with the knowledge Of the civil as well as of the common
law, and with that 'familiarity' with the mode of taking
evidence which would be essential to the working of the
new system,
XLIX. We would, therefore, recommend that applica-
-tions for divorces-a vinculo matrimonii, and all causes ma-
trimoninl,.should be submitted in future to a new tribu-
nal, consisting of a vice-chancellor, a common law judge,
and ajudge of the Ecclesiastical Court, and that they
should sit for the purpose of trying these questions at
specified times in different parts of the year. We would
also recommend that there should be no appeal from their
decision except to the House of Lords ; and we think there
would be convenience in directing that diverces a mend et
thoro should likewise be referred the tame tribunal. Sir
John Stoddart's evidence on the subject is clear and im-
portant. Do yeti considet he was asked) that a court con-
stituted of judges of the common law and equity, and in-
cluding consistorial civilian judges, would be a better tri- ,
bunal than any one individual judge for sifting cases of this
kind ?—Certainly I should think so.
And that the proper course of proceeding is by a viva
voce examination ?—Yes.

Under such rules as to examining upon the libel as they
might think fit to lay dawn for. their practice ?—Yes.
What would be the use. of having two courts, one to
divorce a mensa et thoro, and the other to divorce a vin-
culo I—l do not know that two courts would be necessary,
but I say that the present mode of proceeding to obtain a
separation a inensa et thoro is not sufficiently stringent, in
my opinion, to obtain a divorce a vinculo. Whether there
should be ant alteration, or not in the present proceeding
for a divorce a ntensa et thoro is a separate question, but
if there were a proceeding for a divorce a vincula before a
single judge, or even before several judges, I think the pro-
r-teeding should be very different from that which is now
followed in the spiritual courts."
L. We cannot bring this report to a close without advert-
ing to two questions of immense importance, which are
closely connected with the subject submitted to us, though
they do not fall within the terms of the inquiry proposed
for our consideration. The one is, whether here, as in Scot-
land, the parties whose guilt has occasioned tho divorce
d vinculo matrimonii shall be restrained from intermarry-
ing. The other, whether a Scotch divorce, upon grounds
not allowed by the laws of England, shall operate as a dis-
solution for all . purposes of an English marriage. With
regard to the former question, there is a standing order of
the House of Lords, which makes it imperative on any,
person petitioning for a. bill for a divorce a vinculo to in-
sert a provision in it prohibiting the person whose marriage
with the petitioner shall be dissolved to intermarry with
any offending party, on account of whose adultery such
marriage shall be dissolved ; but this clause, notwithstand-
ing many struggles to ba,ve it retained, is usually struck
out without resistance in the regardcommittee. Pith to
the latter question, a Scotch divorce of an English mar-
riage, where the parties are bond fide domiciled in Scot-
land, will be binding and valid in the courts of that coun-
try upon any question of Scotch law affecting themselves,
their children, or their
.property ; but the courts of Eng-
land will not recognise, in some cases, the binding validity
of a Scotch divorce, since an English marriage, being a
contract which, like other personal contracts, must be in-
terpreted according to the law of the country in which it
was made, cannot be dissolved by any proceeding in the
courts of any other country. for English purposes. The
anomalies arising from this conflict between the law of the
,two countries are strange and distressing to many families,
and a remedy, if possible, ought speedily to be provided
for them. We feel, however, that both these questions
involve so many and such important considerations of
national policy, and they relate to matters which, in some
respects' are so far removed from the scope of our inquiry,
that we forbear to do more than call attention to them.

ir. Having now Considered the law of divorce in its
different bearings, it may be convenient to sum up briefly
the alterations and improvements which we think may be
made in it with prudence and safety.
Our suggestions die—
That the distinction between divorce a mensel et thoro
and divorce a vinculo matrinionii shall still.be maintained.
That the grounds for divorce a newel et thoro shall be
conjugal infidelity and gross cruelty.
That wilful desertion shall also be a ground for divorce
a mensal et thoro, or else shall entitle the abandoned wife
to obtain froth her husband a proper maintenance by way
of alimony.
That divorces d menses et thoro may be obtained by the
wife for the above-mentioned causes, as well as by the hus-
band.

That divorces a vinculo shall be allowed for adultery,
and for adultery only.
That divorces a viuculo shall only be granted on the suit
of the husband, and not (as a 'general rule) on the suit of
the wife. _ _

That the wife, however, may also apply for a divorce d
vinculo in cases of aggravated enormity, such as incest or
bigamy.
That recrimination, contrivance, and condonation shall,
if proved, be deemed and treated as bars to the suit.
That recrimination shall include any of the grounds for
which divorces may be obtained a mensa et thoro.
That the existing mode of obtaining a divorce d vinculo
shalt no longer be continued.
That a verdict at law, and an ecclesiastical sentence,
shall not be considered as preliMinary conditions which
must be complied with before it can be obtained.
That a new tribunal shall be constituted to try all ques-
tions of divorce.

That all matrimonial questions also which are now deter-
mined in the Ecclesiastical Courts shall be transferred to
the same tribunal. _ _ _

That this tribunal shall consist of a vice-chancellor, a
common law judge, and a judgeof the Ecclesiastical Courts.
That the party who seeks a divorce, whether it bo a di-
vorce a menet et thoro or a divorce a vinculo matrimonti,
shall pledge his belief to the truth of the case, and that
there is no collusion between himself and wife.
That the evidence shall be oral, and taken down in the
presence of the parties.
That in-general the process, practice, and pleading shall
conform to the process, practice, and pleading of the Court
of Chancery, as recently improved, with such additions as
may be beneficially derived from the ecclesiastical system.
That the rules of evidence shall be the same as those
which prevail in the temporal courts in the kingdom.
That the judges shall have the power of examining the
parties, and also of ordering.any witnesses to be produced,
who, in their opinion, may throw light on the question.
That the court shall be intrusted with a large discretion
in prescribing whether any and what provision shall be
made to the wife, in adjusting the rights which she and
her husband may respectively have in each other's property,
and in providing for the guardianship and maintenance of
the children.
That there shall bo only ono appeal from a decree of the
court, and that the appeal shall be carried to the House of
Lords.
We humbly submit this, our first report, to your Ma-
jesty's royal consideration.
CAMPBELL.
STEPHEN LUSITINGTON.
BEAUMONT..
SPENCER HORATIO WALPOLE.
WILLIAM PAGE WOOD.
EDWARD PLEYDELL BOUVERIE.

LORD REDESDALE'S OPINION ; AND STATEMENT OF HIS
REASONS FOR NOT ENTIRELY CONCURRING IN THE

PRECEDING REPORT.

In considering the present state of the law of divorce, it
appears that the law of England holds marriages to be in-
dissoluble ; that a divorce Ic vinculo can only be obtained
by getting an exceptional law made for each case ; that this
most objectionable mode of proCeeding has been allowed
little more than 150 years ; and that it has necessarily been

confined4o the wealthier classes, from the expense attend-
ing it.' '
With.these facts before me, I felt it my duty to inquire
carefully into the grounds on which such divorces have
hitherto been unknown to our law, and into the compara-
tively moral and social benefits which may be expected to
arise either from a change in the existing law, or fioth
strict and consistent observance of it.
There can be no doubt that the present law was founded
on a belief that such divorces are contrary to the law of
God ; and I was therefore bound to satisfy myself that at
least they ate not forbidden by that law before I could ad-
vise an alteration of our own which should make divorce a
vinculo a common legal remedy.
Christ himself has spoken on the subject; and his words,
which have been reported by three of the Evangelists, have
been interpreted differently by very learned and holy men ;
some holding that in those which declare man and wife to
be one flesh, and that man may not put asunder those
whom God, has joined together, he pronounced the mar-
riage tie indissoluble ; while others have contended that
another text from St. Matthew's Gospel not only permits
the putting away a a wife who is guilty of fornication,
but allows both parties to marry again. Before I was ap-
pointed on this commission, I entertained thislatter opinion,
and my prejudices were in favour of it; but the attention
which I have since felt it my duty to give to the subject
has forced me to change it. I refrain, however, from argu-
ing this point, which has been so ably discussed by others
far better qualified for such a task than myself.
The only apostolic injunction. which has reached us on
this subject is opposed to divorces. From the First Epistle
of Paul to the Corinthians it would appear that they had
written to him on the subject of marriage, and in the
seventh chapter, after treating on various points, on which
he says, " I speak this of permission and not of command-
ment, 'he adds, "And to the married I command, yet not I
but the Lord, let not the wife depart from her husband.
But if she depart let her remain unmarried, or be recon-
ciled to her husband ; and let not the husband put away
his wife." . .

In the first four centuries after the Apostles, the habits
engendered under the Jewish and Roman laws in favour
of divorce appear to have driven the fathers of the
Church into some admission of the practice, but their
unsettled and conflicting opinions on the subject prove
that they were unable to speak directly in favour of
it as of divine or apostolic precept. Some thought that
divorces might be given for other causes than adul-
tery, which is clearly against our Saviour's injunction ;
some that the innocent party alone might marry, again;
some that the man and not the woman ; both opinions
being opposed to the complete dissolution of the marriage.
At length, that which appears to be the true doctrine was
generally accepted by the Church, that if a woman is
guilty of adultery the husband is justified in putting her
away from, him, but that the marriage nevertheless re-
mains indissoluble. met hardness of men's hearts, how-
ever, induced them to cling to the old practice, and the
Church of Rome, becoming corrupt and covetous, gave
way in fairiain of those who could purchase such relief ;
and, holding still the sound doctrine as to the indissolu-
bility of marriage, made the word of God of no effect by
their traditions, and afforded such extended opportunities
for lieclaring marriages null and void as enabled all who
could conciliate the favour of the Church to have theirs so
pronounced. The early reformers gave in to the licence
which had thus grown up ; and it is remarkable, that men
who professed in all matters to take the Scriptures for
for their guidance should in this have gone quite beyond
what is therein sanctioned and allowed divorces a vinculo
for other causes than adultery. It is hardly possible to
conceive a stronger proof of the danger of admitting the
principle of such divorces, or of the certainty that, when
once admitted, it Is sure to degenerate into more extended
abuse.

Passing from the consideration of the subject as a re-
ligious question, I proceed to treat it on moral and
social grounds, and to inquire-into the comparative advan-
tages which may, be expected either from a change in the
existing law, or from a strict and consistent adherence
to it.

To arrive at a just conclusion on these points, the
question ough to be considered in its general bearing on
the morals and happiness of the whole community, and
not merely as regards the hardship which a change of
practice may appear to inflict in particular cases ; and I
am convinced (having, I trust, fairly and candidly inves-
tigated the subject) that the middle and lower classes have
been far more benefitted than injured by. having such
divorces practically denied to them, and that it is very
questionable whether, on the whole, the wealthier classes
have derived any advantage from having been able to pro-
cure them.

First, as regards the 'more numerous class' to which
divorces have been denied, I believe that there is no class
in any country in the world in which the marriage tie is
held more sacred than among them, or where an unchaste
wife is more generally reprobated. They feel that once
married, they are united, for better for worse. Hasty and
unkind words and treatment are on this account frequently
forgiven on both sides from a sense of necessity, and per-
sons of uncongenial tempers and habits, once united, learn
to accommodate themselves to each other. Introduce fa-
cilities for divorce, and an immediate change for the worse
may be predicted. A- door for escape will appear to be
opened upon every disagreement. A new temptation, by
the offer of a lawful marriage by the adulterer, is offered
to infidelity to a class to which removal from a former
home a few hundred miles affords an almost certain con-
cealment of guilt from those among whom they settle,
and an escape from the consequent shame. Ido not hesi-
tate to declare my conviction, that not only a serious in-
jury would be done to general morality, but that the
misery and unhappiness which would arise from homes
deserted and children abandoned would be bitterly and
extensively felt. Moreover, in determining this question,
it is our duty to inquire .whether the present state of the
law is felt as a grievance—whether it is generally com-
plained of. It is a remarkable fact that, notwithstanding
the prejddice which Might naturally arise among the
middle and industrial classes from such divorces being open
to the rich and denied to themselves, there has never been
any popilair demand- for a change in the law. I cannot
think that we are justified in forcing such a change on
those who do not ask for it, and particularly as the present
state of the law as affects them has answered so well for
their general happiness and morality.
. I next proceed to inquire into the effect of the present
practice on the wealthier classes, the extent to which 'it
has been carried (on which tho necessity for a continuance
of it may by some be thought to depend), and what benefits
have arisen from it, or might be expected from its discon-
tinuance. From the publicity given to cases of divorce a
vinculo, each having to go before the Ecclesiastical Courts,
before a jury in the civil action, and before the two Houses of
Parliament, a very erroneous impression has been created
both at home and abroad as to the frequency of their oc-
currence. The number of divorce bills which have passed
during the last lOyears is only 43, being on the average little
more than four in each year. Last year there was only one;
and this return includes not only all cases in the United
Kingdom, but also in that large body of British-born sub-
jects who are engaged in the military and civil services in
India and the colonies. It can hardly be urged that •so
small a number of cases affords grounds for an alteration of
the law, unless such alteration should appear in other re-
spects necessary or expedient.
The next question to be determined is whether divorces
-71 vinculo have proved so generally beneficial to those who
have obtained them as to form a strong inducement to
afford facilities for an extension of the practice. That there
a
bin e
denied— whichhappiness
ie sem e
thas t
bbeen i f
ea,p apparently re
othersnt
tosecuredthe
husband,isenot a
in a very few to both, and still more rarely to
theirr
in all respects,:while in several, many of the evils attendant
on them have been avoided by one or both of the parties
ccsthd r e n . lu'more cases they have proved disastrous
renderse,waheitch
necessary.
In considering,
divorce,
arise • 'tering next, whether any advantages are likely
rr a
g in f
to
from the entire abandonment of divorce a vinculo, I
woulddirect attention, in the first place, to the effect
which the denial of such divorces to the majority of the
ecoenftarra as contracting
people of this country has produced, and which I believe
they
a y second
are
concerned,
will be generally admitted to have been, on the whole, bene-
ficial both to their morals and ihappiness. As bearing on
this point, I would also particularly refer to the effect pro-
duced bythe refusal in almost every instance of application
for divorce on the part of the wife, in the same ranks of so-
ciety as those in which relief is obtained by the husband.
How often has forgiveness ensued in such cases, which
would have been impossible if a divorce had been obtained !
And though the injury received by the husband through the
infidelity of his wife is far greater, and harder to forgive, I
am satisfied that not unfrequently the bar which a divorce
has placed to a reconciliation in after years, has, been the
cause of much misery, particularly in cases in which calmer
reflection may have suggested to the husband there were
faults on both sides.
A doubt may arise with some whether the withdrawal of
the heavy, and, so far as this world is concerned, perpetual
condemnation which accoinpanies such divorces, might not
take away from those who are trembling on the threshold of
guilt one great support and check against yielding to temp-
tation. Of such I would ask, whether they consider the
four or five Parliamentary divorces which are obtained in
each year, or the consequences which attend the crime,: to
act as a prevention ? lam inclined to think that the ex-
pectation of a divorce.sometimes increases the temptation.
If divorces a vinculo could be no longer obtained, divorces
a mend et thoro, on the ground of adultery, would neces-
sarily be accompanied by the same exclusion from virtuous
society, which is now so justly enforced and so severely felt.
But they would not close the door to all hope of reconcilia•
tion. Let us remember, in determining this point, who He
was who said, "Ho that is without sin among you, let him
first cast a stone at her." Let us take example from Him
who forgave the guilty one, when she stood alone before
Him, bidding her to sin no more." Let us remember
that with God forgiveness is always accompanied with re-
coucliation, and humbly inquire within ourselves whether,
if we desire to prove ourselves worthy to be His followers,
we are justified in placing the bar of divorce between an
erring woman and all hope of reconciliation.
I have another objection to the proposed alteration, from
a conviction that it will extend much further than those who
recommend it in their report intend or consider expedient.
By the proposed change divorce a vinculo is no longer to
be considered an exceptional law, but is to be made a com-
mon legal remedy. 'Viewing the subject in'this light, they
desire that such remedy should be limited by the rules
which at present govern the exceptional cases to which it
has been hitherto applied. To secure this, the provisions
of the act of Parliament by which the change is to be
effected ought to be clear and definite. No attempt has
been made to frame such a measure, and I believe that,
whenever it is attempted, the result will be unsatisfactory,
ICappears to me, that any court to which the determina-
tion of such cases would be referred must be placed in a
totally different position from that in which Parliament
now stands in reference to these cases. The application at
present is to have an exceptional law passed, and the dis-
cretion, consequently, which can be exercised by. Parlia-
ment is great. No judge can feel himself in the enjoyment
of the same liberty in administering the existing law as he
may in recommending
or refusing a special relief from its
provisions. I believe it will be generally admitted that a
divorce a Inensel et thoro may be granted in cases in which
a divorce a tined() ought to be refused. The practice of
any existing court, therefore, can only bo imperfectly
adapted as a guide for this new tribunal ; and, unless a dis-
cretion similar to that now exercised by Parliament can be
transferred to it, which I believe every lawyer would feel
himself practically debarred from exercising under the al-
tered circumstances, or unless words can be devised to ex-
press an enactment exactly that which the commissioners
desire to secure, which I believe to be equally impossible,
divorces a vinculo will in future be granted in cases whiCh
would now have no chance of success, and to which the
commissioners do not desire to extend it.
My apprehensions of evil consequences, however, extend
still further, I consider the tribunal recommended by the
commissioners for determining these questions a very good
one ; but proceding before it in cases of divorce a vinculo
will necessarily be attended with some expense, though far
below that which is required. These divorce:: will thus be
openedeto.another and, numerous class, but a still more
numerous class will be equally excluded as at present.
Once create an appetite for such license by the proposed
change, and the demand to be permitted to satisfy it will
become irresistible. The cry for cheap law has of late
I been universally atteided, to, and the result will too pro.