The Sun.
London, England, 1860-11-29 00:00:00

THE DIVORCE COURT.

The case of Shedden v. Patrick, which was de-
cided on Tuesday last, is almost unique in the legal
annals of this country. In the first place, we may
observe that the litigation, in some shape or other,
had endured for a period extending beyond half a
century, when Parliament in 1838 passed the Legi-
timacy Declaration Act, a measure which afforded
to the petitioners a new and further opportunity of
submitting their case to the decision of the Divorce
Court. In the second place, the recent trial occu-
pied exactly fourteen days—an entire term, if we
exclude the days allotted to motions. What has
been the result of this protracted litigation ? After
a most attentive and careful investigation before
the full Court, conducted with singular ability by I
one of the petitioners in person, Sir Cresswell Cress-
well, with the concurrence of the two common law
judges, decided that the petitioners had altogether
failed in making out their case. We do not blame
the young lady, who, desirous of vindicating the
honour of her family, and fully impressed with the
belief that her cause was just, fought almost against
hope to establish the validity of a marriage which
was stated to have taken place 70 years ago. The
same extenuation, however, cannot be extended to
the co-petitioner, whose conduct was very properly
condemned by the Judge Ordinary, on account of the
trouble, vexation, and expense to which he had need-
lessly put a man of honourable and unsullied charac-
ter. But this case may be considered independently of
interests of the parties concerned. It is too noto-
rious that the Divorce Court is crowded with an
' amount of business which the Judge Ordinary,
even with all his marvellous quickness and indus-
try, is utterly unable to diminish. The Legislature
confers upon him the power of dissolving marriage;
and at a time when two hundred divorce suits, not
counting proceedings for judicial separation and
probate cases, have been set down for hearing, this
case of Shedden v. Patrick—a mere unsubstantial
claim, as it turns out--stops the way, and occupies,
as we have before said, an entire term. Cases of
the same kind are not unlikely to occur again ; and
if this should be so, the Divorce Court will speedily
become in a worse condition than was the Court of
Chancery in the time of those scandalous abuses
and interminable delays which happily were swept
away by the Acts of 1852. The truth is, that Par-
liament, when it passed the Divorce Act, and sub-
stituted the jurisdiction of an ordinary court for
exceptional legislation by means of a private Act of
Parliament, never anticipated that, instead of three
or five divorces a year, the number, under the faci-

lities afforded by the new system, would amount to
at least as many hundreds per annum. The judicial
strength of the Court was from the first obviously
incompetent to deal with this mass of business. This
new chapter of procedure, according to the usual
English mode of applying small remedies to great
and admitted evils, has been patched and tinkered by
giving the Judge Ordinary the extraordinary power,
whilst sitting alone, of pronouncing decrees of dis-
solution of marriage. But a new element of delay
has been added. 'Whenever collusion is suspected
the Attorney-General is to intervene in the suit
to watch the proceedings on behalf of the interests
of public morality. Many divorce cases will,
therefore, assume a triangular form, and the Queen's
Proctor and the Attorney-General will be expected,
by preliminary inquiry and by the examination of
Witnesses at the hearing, to guard the tribunal
against the fatal mistake of dissolving marriages
in cases in which the parties have a common
interest in concealing the facts from the judge. The
provisions of the Act of last session, which declares
that decrees of dissolution of marriage shall not be
made absalute, until the period of three months has
elapsed, will be a further cause of delay. Parties,
irritated with the scandal and disgrace which has
been brought upon their family, will communicate
with the Queen's Proctor, and often, on mere sus-
picion, the whole litigation will nave to be reopened.
These provisions are no doubt wise in themselves,
as furnishing some check upon fraud and collusion,
but if they are to be effectual, how can one judge,
who at present is hopelessly overwhelmed with
arrears, be expected to undertake this new branch
of business, and to administer it in a satisfactory
or even decent manner ? If the matrimonial
infidelity of the country is to be estimated by
the number of divorce suits which have been
instituted since January, 1858, not one, but two
or three, divorce judges sitting separately will be
requisite. We do not believe that Parliament has
the slightest intention of incurring any expenditure
for such a purpose. Having once given the remedy,
it cannot go back and tell, the poor man that he
must, as formerly, go to the ecclesiastical court,
then to common law, and, finally, to the House of
Lords, to obtain a divorce. The present system,
whether good, bad, or indifferent, in a moral and
social point of view, cannot be worked by a single
judge. The policy of this country is, we know,
adverse to a multiplicity of expensive tribunals. If
any judge could make head against arrears that
judge is Sir Cresswell Cresswell. But it is right
that the
.public should correctly understand the
position in which that very learned person is
placed. He not only has to administer justice in a
hundred times as many divorce cases as formerly
came before the House of Lords, but he has in

addition to, decide all those questions of criminal
conversation, and all those suits for divorces a
lnensa et Moro which, under the abolished system,
were submitted to the common law and ecclesiasti-
cal courts. We believe that the only way of re-
lieving the tribunal from its present difficulties,
which in many instances amount to a denial of jus-
tice, would be by the employment of ex-judges,
who receive large pensions from the country, and
comparatively make no return except in the shape
of occasional sittings in the House of Lords or the
Judicial Committee of the Privy Council. Lord
Cranworth and Lord Chelmsford, for instance,
would confer upon the public a great service if
they could lend a helping hand to Sir Cresswell
Cresswell, and relieve the most recently created of
our tribunals from the -scandal and disgrace of
being utterly and hopelessly unable to meet the
requirements of justice.—/Itorning Post.