The Sun.
London, England, 1857-08-25 00:00:00

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would arise, and, in truth, the objections to such a
clause were manifold and weighty. The house would
not so mach wonder at this when they considered that
this clause was not the result of ewe and consideration,
but was introduced—he thought he might say somewhat
hastily—in order to meet an abstract resolution of the
House of Commons that some local jurisdiction should
be given; For his own part he certainly thought that
the object of that resolution would be better gained by
the appointment of another judge of the matrimonial
court who might then take circuits throughout the coun-
try. Passing by some minor alterations in the bill, with
respect to which he did not offer any argument to the
house, the next amendment to which it was necessary to
call their lordships' attention was that which extended the
grounds upon which the wife should have divorce. He
regretted to say that he thought that all of these altera-
tions were injudicious. The first of these amendments
gave the wife a right to divorce upon the happening of
adultery on the husband's part, committed within the
conjugal residence. The meaning of this amendment was
no doubt to provide against the case of a man introducing
a mistress into his house and insulting the wife with her
presence. Batas it had been pointed out when the bill vas
in that house, such a case was met by the words giving di-
vorce upon adultery with cruelty ; for there was nothing
to limit that word to mere animal violence. The effect of
this amendment would, however, be to place a most ob-
jectionable power of obtaining divorce in the wife's bands
—one which she might be led to avail herself of in a mo-
ment of passion and under circumstances which would
give her cause for great regret when it was too late. The
next amendment gave the wife the right to divorce in the
case of adultery coupled with rape. Now, it seemed to
him that rape was not an offence against the wife, but
against the woman ravished, and hence he did not con-
sider that there was any reason for giving the right of
divorce on the ground that rape was added to adultery.
The next amendment introduced the words " sodomy
and bestiality." He much regretted the introduction of
these words; they introduced an entirely new series of
ideas into the bill; they related to offences that could be
seldom proved, and on grounds of public morality he ob-
jected to the alteration. There was then an amendment
enabling the court to bring the paramour before it as a
respondent. Of the effect of this he would not pretend to
judge, but leave it to those whose judicial functions ena-
bled them more clearly to form an estimate of its advan-
tage or disadvantage. The next amendment was of con,
siderable importance, and in introducing it to their notice
he would remind them that throughout the former dis-
cussion of this question one of the great objects held out
to their lordship was the abolition of the action of trim.
con. Everybody knew how forcibly that action bad been
denounced, and how eloquently its evils had been des-
canted upon. Bat this clause embodied a provision giving
damages--let them mark the word—to the husband in
case of the adultery of the wife, and it provided, more-
over, that the inquiry into the assessment of damages
should be conducted the same as the procedure on a trial
for Grim. con. It might be said that the clause also
provided that the court might declare how the damages
would be apportioned, and that it might, if it saw fit,
settle them upon the children ; this, however, in no way
affected the question as regarded the objection-
able principle of giving damages for the lose of a wife's
fidelity. The nest important amendment was that
having relation to those clergymen who might have
scruples with regard to the marriage of persons who
bad been divorced: To this amendment he did not in
anywise object, and indeed had it gone further it would
have bad his concurrence. But with respect to the next
amendment which enabled parties, where an incumbent
objected to marry them, to be married by another clergy-
man in that incumbent's church, he saw many serious
objections. He would remind the house that persons
could now by law be civilly married before the registrar,
and these could take the certificate of that registrar
before a clergyman and demand to have the mar-
riage ceremony performed. This would, he thought,
enable persons coming within this act to be married at
any place by any clergyman not objecting to marry them,
and it was therefore unnecessary that that ceremony
should be performed in the church of the incumbent
who had conscientious objections to such a course. He
certainly must most earnestly warn the house against
this amendment, which would lead to evils, the end of
which no one could foretell. He had now tsuched upon
the principal amendments of the bill, and he thought
without adding one word more he had said enough to
convince the house that these amendments were of too
grave a character to be proceeded with at that period of
the year. (Hear.) He would next proceed to consider,
and that very briefly, the second reason in support of his
motion, via , that the country ought to have further time
to consider this bill. The fact was, that the bulk of the
people had never considered this question until it became
pretty plain that:the bill would passthe other house,a period
so recent that no one could contend that sufficient time had
transpired since then for the due consideration of so impor-
tant a question. In proof of this he would point to the
petitions even at that moment coming in from the clergy,
men who, from thelr position, would be expected to give
an early attention to the subject. And be would also
venture to instance himself as showing the effect which
due consideration of this question produced. When the
subject first presented itself to his mind, he was one of
those who thought that facilities for divorce might be
safely extended, but further consideration had shown
him his mistake. And he might point also to a dis.itt.
guishod member of the other house—a man not likely
to be thoughtless in matters appertaining to relgion—
in whose views a further consideration of this subject
had made considerable alterations. Under such circum-
stances he thought that for the country generally further
time should be given. The remaining ground upon
which he supported this motion was the imperfect na-
ture of the bill. Their lordships would find that this
bill was confined wholly to England, and thus whenever
the subject matter of it was to be extended to the rest
of the empire, a further act would be required.
After all, the gravest question of all involved in the
amendments was the extension of the grounds of divorce.
Their lordships made some extension--the Commons
made a very material one ; and in this respect the bill
was essentially altered. There was, in fact, considerable
difference in the conclusions come to by the two houses,
and the question was whether this difference was to be
settled as the result of deliberate judgment, or merely to
suit the wishes and convenience of the Government. He
trusted that their lordships would accede to the amend-
ment which he had proposed, considering that in a
matter requiring so much consideration it would nut be
decorous to legislate with anything like haste.
The LORD CHANCELLOR said, in support of the
motion that the consideration of the Commons' amend-
ments be postponed for six months, that his noble
friend had addressed to their lordships arguments
founded on a variety of considerations ; but the greater
portion of those arguments had no reference to the
question whether the amendments shou'd be considered,
but related to the question whether those amendments
were or were not improvements in the bill. In the first
part of his address his noble friend pointed out the alte-
rations made by the Commons, which he represented as
anything but improvements ; but whether these altera-
tions would make the bill better or worse would be
matter for discussion when the particular amendments
referred to came under consideration. If his noble friend
had been able to show that the amendments were totally
new, and that they came upon their lotelshipa by sur-
prise there might have been some weight in his argument,
but in point of fact they were alteratiou3, with the merits
or demerits of which their lordships must have become
familiar through the debates which bed taken place in
that house. First, as to the policy or itnpolicy of
giving jurisdiction to lccal courts. On that point he
did not hesitate to say, he thought it would have
been better to legislate by degrees ; but at all
events, the subject was discussed when the bill was
before their lordships, and the other house having since
decided that it was desirable to establish local as well as
central courts, the question was one with which they were
perfectly competent to deal. The next question was the
extension of the grounds on which marriage was to be
dissolved in favour of wives. Their lordships included
in the bill two grounds, and the House of Commons had
added a third, The only reason why the commission of
an unnatural offence was not included by their lord-
ships was that it was considered undesirable to defile
the bill by allusion to such a subject especially as the
case was one in which according to the old practice
partiea would be entitled to a divorce. As an oejtc-
tion to the consideration of the :amendments, this omis-
sion was moat absurd, for the case would not arise
perhaps more than once in a century. There were,
indeed, one or two other grounds of divorce intro-
duced into the House of Commons, but they came under
the same disgusting category as the other. The com-
mittee of their lordships, which sat two or three
years ago, thought that bigamy with adultery ought to
be a ground of divorce; he yielded to that view, and
the House of Commons had added the case of rape ;
and the case in which the mistress was brought to reside
in the conjugal residence. It could not be said their
lordships were not competent to discuss those amend-
ments. The next alteration to which his noble friend
alluded, was that which related to the Clergy. No one
could say that that was a subject which their lordships
were not in a condition to discuss, seeing that they had
had four divisions at four different periods in reference
to it. As regards the question of crian con., be stood
in this position : be did not quite see his way to the
course taken by their lordships in abolishing the action,
because he felt that there might be cases in which pecu-
niary loss would arise from adultery, and that it would
not be safe to abolish it without providing some sub•
stitue. Their lordships came to an opposite conclu
sion, and thought the action should be at once
abolished ; and what the House of Commons had done
was not simply to restore the action, but to provide
that any money which might be a warded should be
settled, as the court might think fit, for the wife
or for the children of the marriage. As regarded the
limited operation of the bill, it must be recollected that
the law of marriage and divorce was to a great extent
governed by domicile, and that it was eeareately difficult
to legislate in one country for what was to be, done in
another. It might be that their lordships would see
their way to legislate for India, but the probability was
that on such a subject India must legislate for itself, and
if it turnel out that it had not the power of doing so the
,Igiala.tmers might have to confer it. As to the objection
ing the pre
that the
yb is was net to extend to Ireland, there was a
state of the paopPpluylin: its provisions to that country dur-
sent session There were peculiarities in the
consideration ;
anadfzn of Ireland which required special
concence it was impossible to pass a bill
for that country
present one. It wae us:VS'
thetheat this bill ought to be post-
with the passing of the
sidesiog the subject. Wahl act Mme poned, in order to
further time for con-
itlartYot. was now nearly ten
.weas issued to in-
years ago since a roy
Utstt. distinguished
quire into this most important etinit It was no
party commistion. One of the
members of it was his right hon. friend Mr. N.Vai•
pule, who concurred in the recommendations which were
framed. The right bon. gentleman was not in favour of
the present government, nor was he in any way °Pposed

LONION,

to the church. Then, again, there was his friend Vices
Chancellor Wood, who, though very different from Mr.
Walpole in his political bias, was, like him, a strong
friend of the church, `nd would not bo disposed to do I
anything which be thought at all likely to detract from
its usefulness. The commission having made their
report, the announcement was made more than once by
the government that a measure would be introduced to
carry the recommendations of the commissioners into
effect. A bill was accordingly introduced let he year
1854 ; it was revived in the two succeeding years ; this
year it was again introduced, and after very great
discussion in their lordships' house and in the other
house, the bill had received the approbation of both
houses of parliament. Again, it was said that these
amendments came before them at a very late period of
the session. What did that mean ? Was there any un-
necessary delay in introducing the bill into that house ?
On the contrary, it was introduced on the first day that
was available ; it was discussed in the other house of
Parliament as soon as possible ; it was discussed there
hour after hour, and night after night, with most praise-
worthy pertinacity, and it now came back to their
lordships for the consideration of the amendments. To
say that a bill could not be passed under such circum-
stances would be to say in effect that no bill could ever
be passed which had undergone much discussion and
amendment in the other house of Parliament. (Hear.)
The question now to be decided was not whether the
amendments were satisfactory, but whether they should
be considered. He did trust that their lordships would
not yield tothe motion of his noble friend, but would at
once proceed to the consideration of the amendments.
Lord ST. LEONARDS said the question was not
what were the merits of the amendments, but whether,
when their lordships' hours were numbered, they had
sufficient time for considering them. He had asked the
Lord Chancellor whether he was prepared to maintain
the amendments as they stood, and understanding that he
wac, he felt compelled to vote with his noble friend (Lord
Redesdale). Nothing could have induced him to do so
had they not been asked to accept the amendments in-
stead of considering them in the ordinary manner.
Their lordships should consider the position of noble
lords who assisted in passing the bill as it went down to
the Commons, and who were now absent, having had no
reason to suppose that such important alterations would
be made. He did not blame the Government for the
delay which had occurred, but nevertheless it was a fact
that there never was a great social measure which under-
went greater alterations at a late period iof the session. 1
As regarded the original court, he entirely approved of
the alterations made in its constitution. But what was
to be sail with regard o the propoeed local courts ! The
whole thing might well be laughed at. (Hear, hear.)
The House of Commons declared by an abstract resolu-
tion that they would have local :courts, which would
bring relief to every man's door. He deprecated the
spread of courts of divorce over the whole land ;
and though he desired to see the remedy extended to
the poor as well as the rich, he did not wish to see
every possible facility given for obtaining divorce. The
House of Commons having determined that there should
be local courts, the question where they were to get
them. It was first proposed to resort to the county courts
but that proposition 709 immediately scouted. It was
afterwards determined to leave the matter to a judge at
assize, or to quarter sessions, or to a Queen's counsel, or
a serjeant-at-law, to be named by a judge. As to the
quarter sessions, it was ludicrous to talk of it. Why one
case of divorce would . occupy more time than was ordi-
narily consumed by the whole sitting. Let theirlordships
conceive of country magistrates, whose time was so
limited, being called upon to add divorce cases to the
usual business of quarter sessions. Moreover, he should
like to hear what oourts of quarter sessions generally
knew about the procedure of the ecclesiastical courts in
relation to divorce, or how they were qualified to decide
such questions as alimony, and the maintenance, educa-
tion, and custody of the children. Divorce was a thing
which magistrates atquartersessions could not cope with
—the attempt to dolor must inevitably break down.
Then again, with regard to at assize, he never was
more astonished than he was at the proposal to add the
trial of divorce cases to their duties. He would appeal
to his noble and learned friend near him (Lord Campbell)
whether the moment a question of detail—for example, a
question of account—arose at assizes, it wire net cus-
tomary for the judges to say, " We have not time to hear
it, the case must go to arbitration !" Supposing there
were all the necessary appliances, it would be nothing
extraordinary if a divorce case occupied a week. But
where were the appliances to be found! Where were the
judges or the counsel at nisi prius who were familiar
with the procedure of the ecclesiastical courts I Again, if
the judge deputed a Queen's counsel or a eerjeant-at-law
to discharge his functions, how was this to be done when
there was no court ! How was a jury to be summoned I
Whoever framed that part of the bill must be con-
tented to be told that it could not possibly work.
The result would be that divorce cases would
have to be carried to the court of appeal, where they
ought to be taken in the first iestance. As to
the fees to be paid to the persons entrusted with the per-
formance of these duties, he should like to know whence
they were to come. It could hardly be intended to throw
the burden on the country ; while on the other hand, if
the suitor had to pay them he would be placed in a worse
position thin other suitors who had courts provided for
them at the public expense. Their lordships had neither
the knowledge, the material, tor the time to decide on
the proper constitution of these courts, and he would sug-
gert that the clause should be struck out, on the under-
standing that a bill should be brought in next session to
settle the format jurisdiction. The next important blouse
was that which settled the causes which would entitle a
woman to a divorce. This question had been moat care-
fully considered by their lordships in the house, and by
the select committee upstairs. By the bill introduced in
1854, a woman was entitled to a divorce only in cases of
incestuous adultery or bigamy. When the present bill
was referred to the select committee a great many ques-
tions were mooted. It was proposed to allow rape as
one ground, but the committee decided against that ;
the other new grounds now in this bill were not even
mooted, and the house ought not to pass a bill stained
with such terms. This bill would be placed in the hands
of the purest women of England, and they ought to have
Some respect for them. There was another case which
required great consideration before it was adopted, the
case of adultery committed in the conjugal dwelling;
this ',as borro wed from the French law, which allowed
a separation if the hueband took a concubine into the
common dwelling. There was, however, no instance of
such a thing in this country, and there was no necessity
to provide for it; the point was considered by the com-
mittee upstairs, and they unanimously agreed not to in-
sert the provision. The effect of it would be to give a
woman who wished to get rid of her husband the oppor-
tunity of doing so ; she would only have to get a clever
lady's-maid, and throw temptation in his way. They had
already given women greater guards than ever she had
before, and they ought not to go any further, and give her
too much power. The next point was as to the action of
trim. con. He had in committee proposed clauses to abolish
that action, but to give the jury power in certain cases to
award the husband damages from the adulterer. Consi-
derable discussion arose, and it was at last agreed to
aboli-h the action. The question then arose what was to
be eabstirin.ed, and in the bill as it went down the court
was empowered to impose a fine on the adulterer, and
partrouatnythe powoefr
tthe
impose.ca ss
oTherde riihoi rtrits
et to
of
Commonspayth the w
struck
o
a fine, but inserted a clause that in certain cases the pe-
titioner might claim damages, his-claim to be tried in an
action. He (Lord St. Leonards) had read the clause
several times, and he was utterly unable to perceive how
that would differ from the old action of crim. con. There
was, indeed, a proviso that the court should have power
to direct how the fine was to be disposed of, and might;
order a portion to be settled on the wife or children.
They lied abolished the action of min. esti, because they I
believed it Iso be a disgrace to their jurlspcsidence, whoa
it had been compulsory cn the part of the husband to
bring that ac.ion, but it would now be voluntary, and
there would be every inducement to collusion between
him and the wife, to obtain a provision for her at the
exp,nse of the adulterer; and he could do so without
a-king for a judicial separation. The only remaining
question was that as to the position of the clergy under
this bill. He had the greatest respect for the conscience
of every man, but he could not consent to place the
clergy in opposition to the law. If they believed the re-
marriage of an adulteress to be against the law of God,
let them retrace their steps; but if they believed it was
hot, let there be no exception, but make that tine law
which had been done for 200 years, without any objec-
tion on the part of the clergy. By the bill as ii stood
parties were enabled to be married before a registrar, and
might, if they wished, afterwards get the sanction of the
Chnrch by a religious ceremony ; but it was optional
with a clergyman to perform it or not. In his opinion no
such exception snould be, it would lead to endless mis-
chief. Fancy the position of a clergyman who would be
far Jed to give the use of his church alter refusing to per.
form the ceremony. He would not support such a prr-
vise, as he believed it hostile to the best interests of the
country. He would support the motion of his noble
friend (Lord Itedesdale), because he objec'ed to having
the amendments of the House of Conscious forced in
wholesale upon them.

Earl GRANVILLE said the noble and learned lord
and the noble baron who moved the amendment were
fully justified in entering into the merits of the amend-
ments, but the question before the house was whether
they would then go into the consideration of them or
postpone them for six months, and he therefore did not
feel called upon to fallow all the details, more especially
as if the amendment now moved was carried, the bill
would be postponed for this session. The noble lord
who moved the amendment said his object was to venti-
late the subject ; hut it was possible to ventilate a ques-
tion too much. But he never remembered a measure
that had been so fully discussed in both houses ; and
with a delicate question so closely connected with the
social happiness and morality of the people, it was desir-
able it should be decided at once, and he could not see
any public. advantage from the postponement of the bill.
With regard to the period of the session, that couli only
be considered as it.affected the attendance of their lord-

ships during the session, and he had seldom seen so
many present as at that moment, aril if some of the
most eminent members of that house were absent, he
buLeved it was owing to the fact that they in the main
agreed with the Government. (Hear, hear.)
The Eal of CAItNARVON (who rose amidst cries
of "Question") said that he would not detain the house
for more than a minute. The bill contained 78 clauses,
of which sfl were either now or altered eausers; 5 clauses
were struck out ; 21 clauses were entirely added by the
other house ; 33 clauses had been altered, of which 19
bad been altered materially and 14 verbally. After this
supple analysis he thought it imposible to call this the
original bill. (Hear, hear.)
After a few words from Earl GRANVILLE, their lord-
ships divided—
For the amendment 44
Against
The LORD CHANCELLOR then proceeded to state
the nature of the amendments which had been made in