§ House again in Committee (according to Order).
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 15:
§ Powers of High Court where temporary separation orders have been made.
§ 15.—(1) Where a temporary separation order under this Act, made either by the High Court or by a court of summary jurisdiction, has been in force for a period of two years, the person on whose application the order was made may—
- (a) where the order was made on the ground of cruelty, apply to the High Court to have the order converted into a decree of divorce or of permanent judicial separation; and
- (b) where the order was made on the ground of habitual drunkenness, apply to the High Court to continue the order for a further period of one year, and, if the order is so continued, may at the conclusion of that year make a further application to the High Court to have the order converted into a decree of divorce or of permanent judicial separation.
§ (2) Where an application is made under this section to the High Court to continue a temporary separation order made on the ground of habitual drunkenness, the court may continue the order for a period not exceeding one year, and where application is made under this section for the conversion of a temporary separation order into a decree of divorce or permanent judicial separation the court may proceed as though application had been made to it in the first instance for such a decree, and the provisions of this Act with respect to such applications shall apply accordingly.
§ LORD GORELL, on behalf of Lord SYDENHAM moved, in subsection (1) (b), after "drunkenness," to insert "or of venereal disease in a communicable form." The noble Lord said: My noble friend Lord Sydenham has asked me to move the Amendments standing in his name, which he had put down on behalf of the National Council for Combating Venereal Diseases, 64 of which he is president. I might point out that the Amendment to this clause does not stand entirely by itself but is dependent upon the acceptance of the Amendment to Clause 22.
§ The purpose of the Amendment is to give some protection, which does not at present exist, to the many wives (of which we have evidence) who have infective husbands, and whose husbands insist upon living with them. At the present moment there is no remedy open to the wife, and it is felt that this Amendment would have the effect of inducing husbands to undergo treatment and thereby be cured. In the same way it would have the effect of bringing advantage to the wife who also could go and be cured; whereas at the present time, if she is liable to be infected again, she does not go. Since the Royal Commission on Divorce I think so much more knowledge has been given to the world by the Commission, of which my noble friend was chairman, and the ravages of these diseases, are much more fully known and appreciated.
§ I press this Amendment in the interests not only of the infective husband but of the wife, and, above all, of the children who may be born to that marriage. I think it would have the dual effect not only of lessening the incidence of disease by giving an inducement to the husband to go and be cured, but also of lessening the number of divorces. If the definition of "cruelty" in Clause 29 is accepted, a wife has only to wait to get infected and then she may claim the full remedy of divorce. But she may not wish to claim that whole remedy, and certainly one would desire that she should not have to undergo infection before she can have any protection. Therefore I strongly hope that the noble and learned Lord in charge of the Bill will accept this Amendment.
Page 9, line 17, after ("drunkenness"), insert ("or of venereal disease in a communicable form").—(Lord Gorell.)
§ LORD BUCKMASTER
I have some difficulty in accepting this Amendment, for the reason that Clause 8 of the Bill defines the grounds upon which divorce can be obtained. Clause 15—which I think has been much misunderstood—provides that where a separation order has been obtained from a magistrate for two years, at the expiration of that time the person who has 65 obtained the separation order can apply to the High Court either for continuation of the order or for a decree of divorce if grounds exist. It was never intended by Clause 15 that there should be any larger and wider grounds of divorce introduced by implication than those expressly stated in Clause 8. Clause 8 enables divorce to be obtained for cruelty, and cruelty includes the knowing or careless infection of a woman or a man by venereal disease. If, therefore, the woman has obtained an order for separation on the ground that the husband has knowingly or carelessly infected her with venereal disease and at the expiration of two years reconciliation becomes out of the question, she can then get a divorce upon that ground.
I do not understand what it is that the noble Lord who has moved this Amendment wants unless it be to provide that the mere fact that a man has a venereal disease should be, by itself, a ground for divorce. If that were intended I think it ought to have appeared in Clause 8, and I do not believe it ought to be made a ground for divorce. It may be answerable evidence of infidelity, and, if it were, then divorce could be granted. It would certainly be a ground of divorce if a man with this disease carelessly or negligently infected his wife. But to introduce into this clause, as the noble Lord suggests, special powers applicable only in the special cases where the order has been made on the ground of habitual drunkenness or, in his words, "of venereal disease in a communicable form," is I think to extend the Bill in a manner that is a little inconsistent with the main provisions upon which it rests. I am afraid I cannot accept the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD CHARNWOOD moved to leave out Clause 15. The noble Lord said: I am interested in the clause simply as an ordinary country J.P., and, as I understand, the clause in effect puts upon justices of the peace and stipendiary magistrates a responsibility which I am sure we should very much object to having put upon us, and which I cannot think was really intended. To save your Lordships' time I am going to deal simply with the clause so far as it relates to cruelty. I admit at once that I should have a somewhat harder case if I were to deal with that part relating to habitual drunkenness. I do not happen to be conversant with the 66 method of treatment of habitual drunkards and so forth, and I am confining my observations to the case of cruelty.
§ In this case the clause provides, where a temporary separation order has been made by the magistrates on the ground of cruelty, that after the lapse of a certain time that order can be enlarged into a decree of divorce by the intervention of the High Court; and I ask myself, What will the High Court in such a case really be able to do? Assuming that the separation order of the justices is rightly made in the first instance, a person who claims the benefit of the clause would apparently be entitled to a divorce on applying to the High Court. So far as I can see, no matter can be before the High Court beyond what was already before the justices. The parties will have been separated for two years and the original cruelty can have been neither aggravated nor diminished. Nothing fresh can be before the Court and so far as I can see, they have simply to ask themselves whether the order was properly made. I see that the intervention of the High Court may be a safeguard against possible great abuses, but in the ordinary case, supposing the justices to have proceeded on some evidence, the High Court apparently has to review the decisions of the justices upon evidence which by that time is two years old. I imagine that in this class of case evidence does not at all improve with keeping. The complainant will have been cooking his or her recollections during those two years, and the neighbours will have forgotten all about the circumstances.
§ It seems to me—I speak under the correction of many noble Lords who are far more competent to speak than I—that in the ordinary case the High Court will be bound automatically to make this separation order into a decree of divorce almost upon the penny-in-the-slot principle. That seems to me what must happen. It amounts to this, therefore, that justices of the peace are going to be called upon to give decisions which, in effect, will be decrees of divorce. If it had been proposed simply, and in so many words, in this new and very difficult question of cruelty, to make justices of the peace Divorce Judges, nobody would look at such a proposal. Yet it seems to me that that is, in effect, what has been done. Bodies of J.P.'s are notoriously very differently constituted, and it is a question whether the 67 Court on the day on which one of these cases is heard may not be a Court consisting of the least experienced of the local magistrates. The stipendary magistrates, of course, are much more highly skilled persons, but even they are hard-driven officials, and we have evidence of the variations of the way in which they do their work in these particular cases.
§ For instance, in the evidence before the Commissioners there was a case quoted by the most rev. Primate the Archbishop of Canterbury of a County Court Judge who adopted the method of generally adjourning the cases and asking the Police Court missioner to talk to the parties, with the result that he did not grant a separation order in so many as one-seventh of the cases in which application was made. There was also evidence that other magistrates granted these orders in a little less than one-half of the cases brought before them. It is obvious that in a great many instances separation orders are apt to be carelessly granted, and yet, unless the possibilities of the High Court digging up these cases anew and considering whether the decision is right two years after the event-unless that is a far more possible operation that I conceive it to be, the result of the clause must, in effect, bring about a great many divorces by Courts which we should be slow to trust with that authority and which would themselves, I am sure, be very averse to having that responsibility thrown upon them. I beg to move.
Leave out Clause 15.—(Lord Charnwood.)
§ LORD BUCKMASTER
As I said just now, the Bill has been the subject of strange misunderstanding. The object of the clause is this. At the present moment if this Bill stands in its present form, a woman will be able to apply to the magistrate either for divorce or for temporary separation and will not be compelled to apply for a divorce, and it is hoped that if there be any chance of reconciliation the two years may enable that reconciliation to be effected, and nothing more will be heard of the matter. If, on the other hand, that is impossible, if the man's conduct shows no sign whatever of improvement at the end of the time, this clause merely provides that the woman should be in no worse position than if she had insisted on the extreme right which the Bill gives her, and had demanded and obtained divorce in the first instance.
68 Your Lordships will see how carefully the clause is drawn, if you read it in that light. A temporary separation has to be for two years, and the magistrates have no further power. In the Bill, as your Lordships know, divorce cannot be obtained on the ground of drunkenness unless the separation has been for three years. At the expiration, therefore, of two years she is bound to apply to the High Court in order to obtain a further extension of one year, so that it shall be impossible to say that the woman has obtained divorce by virtue of the exercise of the authority of the police magistrates. So far as "cruelty" is concerned, she is entitled to go to the High Court and say that although she has been separated from her husband for two years reconciliation has become impossible, and ask for a divorce.
If it were not for this clause the result would be that the woman who had obtained temporary separation would be unable to obtain divorce. You would, in fact, force her to elect whether she would get a divorce or separation in the first instance. Am I to understand that the noble Lord and those who support him desire that that should be the position? If they desire that the Bill which we have prepared in the hope that divorce need not be forced upon people when there is an alternative remedy and providing that there should be a locus pœnitentice for the man and a chance of restoration for the home—if they desire that this opportunity should be taken away, then I beg them to support the Amendment, because that will be the result.
§ VISCOUNT CAVE
Notwithstanding what the noble and learned Lord has said, I must say that the clause is unfortunately worded. Anyone who reads the clause would infer that the Court at the end of two years must found itself upon the order of the magistrates. I am confident that any Court would say that to some extent a magistrate's order is a foundation for a decree, and that they were entitled to have regard to the fact that it had been made. I think that would be very unfortunate. I yield to no one in my respect for the care and skill with which magistrates exercise their functions, but to make an order of a Court of petty sessions the foundation for a decree of divorce would, I think, be very unfortunate indeed. If the only purpose of the noble and learned Lord is 69 that which he has indicated—to provide that the making of a separation order shall not be a bar to proceedings for divorce—that is a wholly different matter, and the proper way to attain that end is to omit the present clause in its somewhat ambiguous form and insert a new clause giving effect to the purpose indicated.
§ LORD BUCKMASTER
This clause is misunderstood largely because people have not given attention to it. If looked at clearly it will be found that when application is made to the High Court for divorce the proceedings are begun as though the application is made in the first instance. The woman will be bound to prove cruelty. She will be able to prove that she has been separated because of the cruelty, and she will have to establish that there has been cruelty within the meaning of this Bill entitling her to divorce. I see no reason why the clause should not stand, unless there is to be no chance to the woman except that she must be bound to divorce the man in the first instance.
§ On Question, Amendment negatived.
§ Clause 15 agreed to.
§ Clause 16:
§ Power to order payments, etc., by parties to marriage.
§ 16.—(1) Where the High Court grants a decree of divorce or permanent judicial separation, or of nullity of marriage, the court—
- (a) may inquire into the existence of any ante-nuptial or post-nuptial settlements made on the parties to the marriage and may make such orders with reference to the application of the whole or a portion of the property settled, either for the benefit of the children of the marriage (if any) or of the parties to the marriage, as to the court may seem fit; or
- (b) may order that the defendant shall, to the satisfaction of the court, secure to the applicant such gross sum of money or such annual sum of money for any term not exceeding the life of the applicant as, having regard to the means (if any) of the applicant, the ability of the defendant, and the circumstances of the case generally, it may deem reasonable, and for that purpose may refer the matter to any one of the conveyancing counsel of the court to settle and approve of a proper deed or instrument to be, executed by all necessary parties, and the court may, if it thinks fit, suspend the pronouncing of its decree until such deed has been duly executed; or
- (c) may make an order on the defendant for the payment to the applicant during their joint lives of such monthly or weekly sums for maintenance and support as the court thinks reasonable, and any such order may be made either in addition to or instead of an order under the last preceding subsection.
§ (2) The court may also where any proceedings for divorce or permanent judicial separation, or for a decree of nullity of marriage, have been instituted by a wife, make such orders as to the court may seem fit for the payment by the defendant to the applicant of alimony during the pending of the suit.
§ LORD MUIR MACKENZIE
The Amendments in my name all stand together. My reason for moving them is this, that as there is a power given to make the orders described in the subsection in the case of one party, I am not able to see why they should not extend to the other party. My Amendments, therefore, give the Court power to make orders for provision to be made for the other party, whether it is the defendant or the applicant.
§ Amendments moved—
§ Page 10, line 6, leave out ("the defendant") and insert ("one party to the marriage")
§ Page 10, line 7, leave out ("applicant") and insert ("other party")
§ Page 10, line 9, leave out ("the applicant") and insert ("such other party")
§ Page 10, line 10, leave out ("the applicant") and insert ("such other party")
§ Page 10, line 11, leave out ("defendant") and insert ("party upon whom the order is made")
§ Page 10, line 19, leave out ("the defendant") and insert ("one party to the marriage")
§ Page 10, line 20, leave out ("applicant") and insert ("other party").—(Lord Muir Mackenzie.)
§ LORD BUCKMASTER
I do not see any material objection to these Amendments. They merely extend the power of the Court, and do not affect the principle of the Bill as to the grounds on which divorce can be obtained.
§ On Question, Amendments agreed to.
Page 10, line 24, leave out ("last preceding subsection") and insert ("foregoing provisions of this section")—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
EARL RUSSELL moved, at the end of subsection (1), to insert the following new paragraph—
(d) Where the Court has made any Order on the defendant for the payment to the applicant during their joint lives of any such monthly or weekly sum for maintenance and the Court is satisfied that the means of either of the parties have increased or decreased, the Court may from time to time vary such order in such manner as having regard to all the facts of the case the Court may deem just.
This power shall also apply to an Order for unsecured payments to be made by a defendant who has failed to comply with a decree for restitution of conjugal rights.
§ The noble Earl said: The Amendment looks very long and formidable, but its only effect is to give the Court power to vary any order that has been made in accordance with the means of the parties. It is desirable, I think, that the Court should have this power.
Page 10, line 24, insert the said new paragraph.—(Earl Russell.)
§ LORD BUCKMASTER
I am in entire sympathy with the noble Earl in this Amendment. The conditions may change. They have changed during the last two years, and it is right that the Court should retain power to vary orders according to the condition of the people.
§ On Question, Amendment agreed to.
§ Clause 16, as amended, agreed to.
§ Clause 17:
§ Power to order payments by co-defendant.
§ 17. Where in any proceedings for divorce or permanent judicial separation under this Act the court finds that the defendant has committed adultery, the court May order the co-defendant to pay any actual pecuniary loss sustained by the applicant, and to settle property on or to make or secure such payments to the parties of the marriage, or either of them, or the children of the marriage (if any), as the court, having regard to the means of the applicant, the ability of the codefendant, and the circumstances generally, thinks fit.
Page 10, lines 31 and 32, leave out ("the defendant has committed adultery") and insert ("a co-defendant has committed adultery with the defendant").—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
§ Clause 17, as amended, agreed to.72
§ Clause 18:
§ Power to make orders as to custody of children.
§ 18. In any proceedings for divorce or permanent judicial separation, or for a decree of nullity of marriage, the court may, either before or after granting a decree, make such interim or permanent orders as it may deem just and proper with respect to the custody, maintenance, and education of the children of the marriage (if any), and may, if it thinks fit, direct proper proceedings to be taken for placing those children or any of them under the direction of the High Court, and may require security to be given for any payments required to be made under such order.
§ EARL RUSSELL moved, after "marriage" where that word first occurs, to insert "or restitution of conjugal rights." The noble Earl said: Your Lordships have inserted "restitution" in the Bill as one of the grounds of divorce, and therefore it has to be inserted in this clause.
Page 10, line 40, after ("marriage") insert ("or restitution of conjugal rights").—(Earl Russell.)
§ LORD BUCKMASTER
I am not so clear that this is simply a drafting Amendment. As the clause now stands, where proceedings are being taken for divorce or decree of nullity the Court may make an interim or permanent order. That is quite right. But a decree for "restitution" will no longer be necessary as part of the proceedings for obtaining divorce. It can only be necessary, if necessary at all, in rather unusual circumstances, where there may be a little ill-feeling between the parties. I see no reason why a woman Who is not seeking divorce or separation should take proceedings for restitution of conjugal rights in order that the Court may, while those proceedings are on foot, make interim orders for the custody, maintenance, and education of the children. I do not think they should be encouraged in these applications.
I entirely agree with my noble and learned friend. I do not think actions for restitution should be encouraged. But I should have thought that the Court should have the necessary power if such applications took place. I will leave the matter entirely to the judgment of the House.
§ On Question, Amendment negatived.73
The Amendment on line 41 is merely drafting, and gives the Court power to reconsider orders in the light of altered circumstances.
Page 10, line 41, after ("decree") insert ("from time to time").—(Earl Russell.)
§ On Question, Amendment agreed to.
§ EARL RUSSELL moved, after "(if any)," to insert "up to 21 years of age." The noble Earl said: This Amendment is necessary with regard to the children of the marriage up to 21 years of age, because it is presumed that the Court will not give directions after that age.
Page 11, line 3, after ("(if any)") insert ("up to 21 years of age").—(Earl Russell.)
§ LORD BUCKMASTER
It is true that the Court of Chancery might not give directions with regard to children past that age, but if you have once got the whole relationships of the family before the Divorce Court, if you have children say at Oxford, I see no reason why the power of the Court to make Orders with regard to their maintenance should not be preserved. The Court will exercise its discretion having regard to the ages of the children, and what they are.
Surely it is rather contrary to the usual practice to make orders, say, with regard to children of five and-thirty. You want to make provision for the maintenance and custody of the children of the marriage, I suggest, up to 21 years of age. Is it in accordance with the usual practice to go beyond that age?
§ On Question, Amendment negatived.
§ EARL RUSSELL moved, before "High Court," to insert "Chancery Division of the." The noble Lord said: This is to insert the Chancery Division as being the proper Division.
Page 11, line 5, after ("the") insert ("Chancery Division of the").—(Earl Russell.)
§ On Question, Amendment agreed to.
§ Clause 18, as amended, agreed to.
§ Clause 19:
§ Further provisions as to orders under preceding sections.
§ 19.—(1) Where the court has made an order under any of the three last preceding sections the 74 court may subsequently, on due cause being shown front time to time, revoke, suspend, or vary the order on the application of any person affected by the order.
§ (2) Any such order may require payments to be made notwithstanding any restraint on anticipation of income.
§ EARL RUSSELL moved, after "sections," to insert "or section 13, subsection (2)." The noble Earl said This is in order to include, in the sections with regard to which the Court may make orders, section 13, subsection (2). I think that is right.
Page 11, line 9, after ("sections") insert ("or section 13, subsecticn (2)").—(Earl Russell.)
§ On Question, Amendment agreed to.
§ Clause 19, as amended, agreed to.
§ Clause 20:
§ Making decrees nisi absolute
§ 20.—(1) A decree nisi under this Act shall not be made absolute until the expiration of six-months, or such shorter time (not being less than three months) as the court at the time of making the decree may direct.
§ (2) During that period any person shall be at liberty to show cause why the decree nisi should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not having been brought before the court, and on cause being so shown the court may deal with the case by reversing the decree nisi or by requiring further inquiry, or otherwise as justice may require.
§ (3) If during the said period cause is not shown to the satisfaction of the court why the decree nisi should not be made absolute, the court shall at the expiration of the period make the decree nisi absolute without further application.
§ (4) After the expiration of five years from the making of a decree absolute, the d[...]ce shall not be questioned, whether on the ground of lack of jurisdiction or on any ground whatsoever.
§ EARL RUSSELL moved to leave out "subsection (4). The noble Earl said: This is not a drafting Amendment but a matter of some importance. Subsection (4) of this, clause says that after the expiration of five years from the making of a decree absolute, the degree shall not be questioned, whether on the ground of lack of jurisdiction or on any ground whatsoever. I am in considerable doubt as to what is exactly the law on this subject at the present time. I am inclined to think that want of jurisdiction or fraud would always give rise to question as to the decree of any Court, whatever time had elapsed, but in practice it does not do so, and if you are going to legislate about it at all I think you had 75 better legislate to the effect that the decree shall not be questioned from the moment it has become absolute, because it is extremely undesirable then to question the status on re-marriage of the people who have been divorced, and the legitimacy of the children born during the period of five years. It is extremely undesirable that there should be any doubt about such matters for a long period like that. It is better to make the decree absolute and final, and say that it cannot be questioned. I have some doubt whether it could be questioned now, although I have an idea that lack of jurisdiction will invalidate any decree. I should be very glad if gentlemen learned in the taw in this House will consider the effect of this, and consider what on the whole will be most to the social advantage. The two questions which suggest are involved in this matter are either certainty with an infinitesimal risk, the Court being very rarely misled, or on the other hand the risk of leaving the status uncertain in such important matters as re-marriage and the legitimacy of children.
Page 11, lines 31 to 34, leave out subsection (4).—(Earl Russell.)
§ LORD BUCKMASTER
I have no doubt that the reasons for this recommendation were in part a compromise. The difficulty at the present moment is this. Divorce depends upon domicile. Domicile is not always easy to ascertain exactly. Mistakes may arise. If a mistake is established the whole proceedings in a divorce fail, because the Court never had jurisdiction at all to entertain the proceedings. It was thought at first, I imagine, that it was not desirable to make the decree conclusive when it was made absolute; secondly, that it was not desirable to render it possible to have the decree challenged at any time in the future, and therefore five years was taken as the period which it was thought reasonable to fix as the time after which the decree should be incapable of being attacked. I am not prepared to suggest any difference from the finding of the Royal Commission on the matter, because I know quite well that they must have considered it, and I believe those are the reasons which urged them to their conclusion.
§ On Question, Amendment negatived.
§ Clause 20 agreed to.
§ Clause 21 agreed to.76
§ Clause 22:
§ Power to make temporary separation orders.
§ 22.—(1) Any married person may apply to a court of summary jurisdiction for a temporary separation order on the ground that the defendant—
- (a) has since the marriage treated the applicant with cruelty; or
- (b) is an habitual drunkard;
§ Provided that the provisions of this Act with respect to the circumstances constituting defences to proceedings for divorce shall, so far as applicable, apply with the necessary modifications in the case of applications for temporary separation orders.
§ (2) A temporary separation order shall remain in force for such period, not exceeding two years, as may be specified in the order, but if originally made for a period of less than two years may be subsequently extended so as to cover in all a period not exceeding two years.
§ (3) At the conclusion of such period of two years the person on whose application the order was made may apply to the High Court in accordance with Part I of this Act, and the High Court may thereupon exercise any of the powers conferred upon it in that behalf by that Part of this Act.
§ LORD GORELL, on behalf of Lord SYDENHAM, moved, in subsection (1) (b), after "drunkard," to insert "or (c) is suffering from venereal disease in a communicable form." The noble Lord said: I do not think that this Amendment is open to the same objections as were taken against the former Amendment on Clause 15 by the noble and learned Lord in charge of the Bill. It is simply the case of giving protection, so that the wife need not suffer infection, in which case under the Bill she would be entitled to divorce. I do not think I need say anything more about it, and I hope the Amendment will be acceptable to the noble and learned Lord.
Page 12, line 30, after ("drunkard") insert ("or (c) is suffering from venereal disease in a communicable form").—(Lord Gorell.)
§ LORD BUCKMASTER
I cannot help thinking that there is very strong ground for this Amendment. Clause 15 will not restore the effect of the Amendment moved before if these words are introduced, and it does appear to me that if a woman thinks, rightly, that her husband is suffering from venereal disease, she should have the right to ask that he should be kept separate from 77 her for the period of time. Speaking for myself, I feel inclined to accept the Amendment. I do not know what are the feelings of the House. It is certainly a cruel and horrible thing that a woman should be compelled to live under conditions of close intimacy with a man known to be suffering from a disease of this kind, from which she may not be able to escape.
§ On Question, Amendment agreed to.
§ Clause 22, as amended, agreed to.
§ Clause 23:
§ Power to make maintenance orders.
§ 23. In any of the following cases; that is to say—
- (1) In any ease where a -court of summary jurisdiction makes or has power to make a temporary separation order under this Part of this Act; and
- (2) In any case where a court of summary jurisdiction is satisfied on the application of any married person that the defendant—
- (a) has deserted the applicant; or
- (b) has wilfully neglected to provide reasonable maintenance for the applicant, or, where the applicant is the wife, for her children whom the defendant is legally liable to maintain;
§ Provided that the court shall not make a maintenance order on the application of a husband unless he is incapable of earning a livelihood, and where the court makes a temporary separation order on the application of a husband it may make an order similar to a maintenance order for the payment of sums by the applicant to the defendant, which shall for the purposes of this Act have effect as though it were a maintenance order.
§ LORD MUIR MACKENZIE moved, in subsection (2), to leave out "not exceeding two pounds." The noble Lord said: The provision which I wish to direct attention is the limit of £2 which was put upon the subsection at a time when the value of money was very different from what it is now. If there is to be a limit I suggest that it should be something by no means so contractec as £2. My own opinion is that it would be better to omit the amount 78 altogether, and leave the Court, according to the circumstances of the person summoned, to say what the weekly sum shall be. I therefore move to omit the words altogether, but if there is objection to that I should hope that the noble and learned Lord would put in some higher sum than £2.
Page 13, lines 27 and 28, leave out ("not ex-exceeding two pounds").—(Lord Muir Mackenzie.)
§ LORD BUCKMASTER
If the words are left out the clause will run, "the Court may make an order for the payment to the applicant of such weekly sum as the Court, having regard to the means of both parties to the marriage, and generally to the circumstances of the case, considers reasonable." I see no reason why the discretion of the magistrate should be fettered by a limit of £2, which in many cases to-day must be far below what ought to be provided; and if your Lordships are prepared to accept this Amendment I am anxious and willing that it should be inserted.
§ On Question, Amendment agreed to.
§ Clause 23, as amended, agreed to.
§ Clause 24:
§ Further provisions as to separation and maintenance orders.
§ 24.—(1) The power to make temporary separation orders or maintenance orders shall include power to make such provision as the court thinks reasonable with respect to costs.
§ (2) The power to make temporary separation orders shall include power to make orders with respect to the custody of any children of the marriage who are under the age of sixteen,
§ (3) Where the court makes a temporary separation order on the ground of habitual drunkenness it may in addition make an order that the defendant shall submit to such treatment as may be specified in the order, or may order the defendant to be committed to and detained in any retreat licensed under the Inebriates Acts, 1879 to 1900, the licensee of which is willing to receive him or her, and such order shall have effect as if he or she had been admitted to the retreat under section ten of the habitual Drunkards Act, 1879, us amended by any subsequent enactment, and the court may order an officer of the court or a constable to remove him or her to the retreat accordingly.
§ (4) Where the court makes a temporary separation order it may further order that the defendant shall enter into a recognisance, with or without sureties, to be of good behaviour for such period as may be specified in the recognisance.
§ (5) A temporary separation order shall entitle the person on whose application it is made to adequate police protection against access or molestation by the other party to the marriage.79
LORD BUCKMASTER moved, at the beginning of the clause, to insert the following new subsection—
(1) The provisions of Part I of this Act with respect to the circumstances constituting defences to proceedings for divorce shall, so far as applicable, apply, with the necessary modifications, in the case of applications for temporary separation orders and maintenance orders.
The noble and learned Lord said: This is simply to provide that the provisions that are established in the earlier part of the Bill constituting defensive proceedings to divorce shall as far as possible be applicable to separation orders. I think your Lordships will agree that this is right.
Page 14, line 1, at beginning insert the said new paragraph.—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
§ Clause 24, as amended, agreed to.
§ Clauses 25, 26 and 27 agreed to.
§ Clause 28:
§ Power of Secretary of State to make rules under Part 11.
§ 28. A Secretary of State may make rules with respect to the practice and procedure in courts of summary jurisdiction under this Part of this Act, and generally for carrying this Part of this Act into effect, and such rules may apply with the necessary modifications any of the provisions of the Summary Jurisdiction Acts or of the rules made thereunder.
§ LORD MUIR MACKENZIE moved to leave out "A Secretary of State," and insert "The Lord Chancellor." The noble Lord said: Unless the practice is entirely different from that with which I was acquainted for 30 years, it is the Lord Chancellor who makes an Order under the Summary Jurisdiction Act, and not the Secretary of State. Therefore I move the Amendment.
Page 16, line 5, leave out ("A Secretary of State") and insert ("The Lord Chancellor").—(Lord Muir Mackenzie.)
§ LORD BUCKMASTER
I should be sorry indeed that a Secretary of State should usurp any of the duties or functions of the Lord Chanceller, and I willingly accept this Amendment. I am obliged to the noble Lord for having called my attention to the mistake.
§ On Question, Amendment agreed to.
§ Clause 28, as amended, agreed to.80
§ Clause 29:
29. For the purposes of this Act—
The expression "the applicant" means any party to a marriage applying for a decree, order, or other relief under this Act, and the expression "the defendant" means the other party to the marriage in any such case;
The expression "co-defendant" means any person who is found or is alleged to have committed adultery with a defendant;
The expression "desertion" means desertion without the consent or against the will of the other party to the marriage, and without reasonable cause, and wilful refusal to permit marital intercourse shall be treated as equivalent to desertion;
Any unnatural or grossly indecent offence shill be treated as equivalent to adultery;
The expression "cruelty" means such conduct by one married person to another as makes it unsafe, having regard to the risk of life, limb, or health, bodily or mental, for the latter to continue to live with the former, and the following facts—
The expression "habitual drunkard" means a person who habitually takes or uses any intoxicant, and while under the influence or in consequence of the effects thereof is at times dangerous or the cause of terror to himself or others, or the cause of serious harm or suffering to the members of his family or others, or incapable of managing himself or his affairs, and the expression "habitual drunkenness" has a corresponding meaning;
The expression "intoxicant" includes any intoxicating liquor, and any sedative, narcotic, or stimulant drug or preparation;
The expression "officer of the court" includes a superintendent or inspector of police, or officer of police of superior or equal rank, and any probation officer or police court missionary;
Power to make orders as to the erstody of children shall include power to make orders as to access to children.
§ VISCOUNT CAVE had on the Paper an Amendment, in the interprecation of "desertion," to delete "and wilful refusal to permit marital intercourse shall be treated as equivalent to desertion."
THE LORD ARCHBISHOP OF YORK
May I, in the absence of Lord Cave, be permitted to move this Amendment? It deals with a matter of considerable 81 importance—namely, the case where the refusal to permit marital intercourse is equivalent to desertion. Every one is familiar—indeed, there is nothing more flagrant in connection with divorce proceedings—with the way in which persons who no longer desire to live together arrange correspondence by which the one writes a letter to the other asking and pleading that he or she should return, and the person to whom it is addressed writes a letter of reply refusing to do so. If this part of the clause remains it will certainly afford the most open and potent opportunity for that collusion which admittedly now takes place in cases of desertion. This seems to me almost to invite the use of this particular method with which the Courts are so familiar of establishing desertion which cannot be described as wilful or malicious.
Page 16, line 24, leave out from ("cause") to the end of line 26.—(The Lord Archbishop of York.)
§ LORD BUCKMASTER
I am much impressed by what the most rev. Prelate has said, and I think it may be that the words in this clause ought to be in some way altered so as to make their meaning a little more clear. It is not intended to cover such a case as that to which the most rev. Prelate refers, but I quite appreciate it is possible that the words might be taken to cover such a case.
I will tell your Lordships what it is intended to cover. It is intended to cover the case of a woman living at home with her husband, and persistently and continuously refusing to permit marital intercourse. Such a case came before us only the other day. For eight or nine years two people had been living together, and they had never really been husband and wife. The woman would not permit the man to come near her. She lived in the house, and did all the house work, but when he attempted to obtain any intimate relation she refused. This clause is intended to cover that case, because that case, I submit to your Lordships, is one of real desertion. It may well be said "Oh, but in such a case as that you can apply for a nullity on the ground that there is something physically wrong with the woman." But that is an extremely difficult thing to do. The woman is entitled to refuse, and does refuse, to submit herself to medical examination.
82 It may even be that at some very early stage of the marriage, on one or two isolated occasions, intercourse has been permitted; yet none the less the woman from that time has absolutely refused to permit it. That is a complete denial of marital rights which it is intended to include in the word "desertion." It is not intended to include what the most rev. Prelate referred to, and I should be glad to see how one can alter it. Of course, one could introduce the word "persistent" before "wilful." I think that word should be there and I am willing to insert it, but I do not quite see for the moment what other words could be added.
THE LORD ARCHBISHOP OF YORK
If the noble and learned Lord is prepared to reconsider the point and to, bring up words more adequately expressing; what he has just said, I should be quite content to withdraw this Amendment.
§ LORD BUCKMASTER
I am much obliged to the most rev. Prelate. I fore—see that I shall have some difficulty in carrying out my promise, but I will do my best to bring up suitable words. At least, I will promise to introduce the word "persistent."
§ Amendment, by leave, withdrawn.
§ EARL RUSSELL moved to delete "any unnatural or grossly indecent offence shall be treated as equivalent to adultery," and insert "The expression 'adultery' shall be deemed to include bigamy, sodomy, bestiality, and other unnatural or grossly indecent offence."
§ The noble Earl said: The definition in lines 27 and 28 seems to be a little vague and does not" include definitely the words that are included in the Act of 1857. I think those words should not be excluded, and therefore put down the Amendment which turns it the other way round. I should in fairness draw your Lordships' attention, to one word I have included namely, "bigamy"—"the expression 'adultery'shall be deemed to include bigamy." It is only right to point out that that is a slight extension of the present law, because bigamy is only useful now so far as it is some sort of presumption of adultery. But it was felt by many people, and I must say by myself, that on the ground of expense, where you have a bigamy proved, the Court might reasonably infer adultery 83 from that without having to have it proved separately.
§ But it would be fair to go further and to tell your Lordships also that the Royal Commission considered that point and, having considered it, they disagreed with the view which I am now expressing, and they thought it was not necessary. The advantage of including this particular word "bigamy" has nothing to do with merits, nothing to do with causes of divorce. It has merely the advantage in the case of poor people of cheapening it; to those who are not poor it does not matter. I will give an illustration of the sort of thing I mean. There was a woman in Sussex, whose husband had committed bigamy in Liverpool and was convicted of bigamy at the Liverpool Assizes. It would have been sufficient, under what I am suggesting, to prove the bigamy and to prove the conviction and the identity. But in addition to that, as the law stands now and as it would stand if your Lordships did not introduce this word, she would also have to bring witnesses to the adultery from Liverpool to London, the same witnesses who had given evidence at the trial at which he was convicted. Under this Bill there will be local trials, but she would still have to bring those witnesses to her local trial in Sussex or wherever it was. The object of the Amendment is not merely to change the law but to enable the Court by Statute to make that slight step and to say that, where people have committed bigamy, it is fair to infer adultery. If it saves expense in proving a case I think the change should be adopted. But that, in any case, does not alter the rest of my Amendment.
Page 16, leave out lines 27 and 28, and insert: ("The expression "adultery" shall be deemed to include bigamy, sodomy, bestiality, and other unnatural or grossly indecent offence").—(Earl Russell.)
§ LORD BUCKMASTER
So far as the Amendment covers the clause as it now stands, I say quite frankly I prefer the clause. I have always objected to Parliamentary drafting that started off by saying that one word was deemed to include another. I think that the way it is done in the Bill is much better—"Any unnatural or grossly indecent offence shall be treated as equivalent to adultery." I do not think it is necessary to emphasise it any further. And, as far as this Amendment deals with all the matters excepting 84 bigamy, it is, as the noble Earl himself admitted, already covered by the words in the Bill, and I see no reason why it should be altered. As to bigamy, I am a little uneasy. I should have thought that proof of bigamy would have been sufficient for the purposes of the Divorce Court. But if it be not, and if there is any doubt about it I do not think your Lordships would object to adding "bigamy" to the words as they now stand in the Bill. It would then read—"Bigamy or any unnatural or grossly indecent offence shall be treated as equivalent to adultery."
I, of course, accept the Amendment in the form which the noble Lord suggests. He objects to the words "shall be deemed." I am bound to say I rather object to the words "shall be treated as equivalent to" in a Statute.
§ Amendment, by leave, withdrawn.
Page 16, line 27, before ("Any") insert ("Bigamy or").—(Earl Russell.)
§ On Question, Amendment agreed to.
§ THE LORD ARCHBISHOP OF YORK moved, in the interpretation of "habitual drunkard," to delete "or the cause of serious harm or suffering to the members of his family or others." The most rev. Prelate said: This Amendment stands on the Paper in the name of the noble Viscount, Lord Cave, and in his absence I should like to move it. I have no particular objection to the words "cause of serious harm or suffering to the members of his family," but I think the additional words "or others" really carry the matter far too wide. Is it seriously proposed that a wife will be entitled to obtain a divorce from a husband because it is proved that the husband's conduct when under the influence of drink could be alleged to be a cause of harm or suffering, say to the persons with whom he was working, or to other persons quite outside the limits of the home? I cannot but think that that would not commend itself to the common sense of the House, and that you will realise that these words "or others" open out a sphere far wider than any of us, even those who are in favour of additional causes of divorce, contemplated.85
Page 17, line 8, leave out from ("others") to the second ("or") in line 9.—(The Lord Archbishop of York.)
§ LORD BUCKMASTER
I think there is much substance in this criticism. "Others" is a very wide phrase, and it might be taken to apply to anybody. I wonder whether the most rev. Prelate would be satisfied with the introduction of the words "wife or family" or "wife and children." I should be quite willing to limit it in that way.
§ Amendment, by leave, withdrawn.
§ LORD BUCKMASTER then moved, after "himself," to delete "or others" and to insert "wife or children," and to delete "or others" where those words secondly occur.
Page 17, line 8, leave out ("or others") and insert ("wife, or children").
Page 17, line 9, leave out ("or others").—(Lord Buckmaster.)
§ On Question, Amendments agreed to.
§ Clause 29, as amended, agreed to.
§ Clauses 30 and 31 agreed to.
§ Clause 32:
§ Hearing of cases in private and limitation of reports.
§ 32.—(1) The Court of Appeal or a judge of the High Court may, if in their or his opinion the interests of decency, morality, humanity, or justice so require—
- (a) direct that any proceedings before them or him under this Act shall be heard in camera; or
- (b) direct that the whole or any portion of any such proceedings shall be withdrawn from publication.
§ (2) It shall not be lawful to publish any report of any proceedings under this Act until the conclusion of the proceedings, or to publish any pictorial representation of or in connection with any such proceedings, or to publish any report of any proceedings heard in camera as aforesaid.
§ (3) Any person acting in contravention of the foregoing provisions of this section, or any direction of the Court of Appeal or a judge thereunder, shall be guilty of contempt of court and punishable accordingly.
§ (4) For the purpose of this section "publication" means publication in a newspaper or periodical, and "publish" has a corresponding meaning.
§ (5) A court of summary jurisdiction may, if in its opinion the interests of decency, morality, humanity, or justice so require, direct that at any proceedings heard before it under Part II of this 86 Act no person other than the members and officers of the court, and the parties to the case, their solicitors and counsel, and other persons directly concerned in the case shall, except by leave of court, be allowed to attend:
§ Provided that nothing in this subsection shall authorise the exclusion of bona tide representatives of a newspaper or news agency.
§ (6) Where a court or judge makes any direction under this section the reasons for the direction shall be distinctly stated at, the time that the direction in made.
§ LORD ASKWITH moved, in subsection (1), after "The Court of Appeal or a Judge of the High Court," to insert "or a Court of summary jurisdiction." The noble Lord said: I think it is undesirable that in a Bill for divorce you should deal with such a constitutional question as the suppression of publicity in these proceedings or interfere with the discretion of the Press. My Amendments would give the same power to a Court of summary jurisdiction as to High Courts; they would give the Judge in the lower Court discretion to turn out on certain occasions persons who might be in the Court for a prurient reason, or persons who might have come to gloat over the sufferings of others, to allow the Press to remain and so ensure that publicity which is so important to the administration of justice.
§ As many of your Lordships, who either practice in Court or sit on the Bench at Quarter Sessions or at Assizes, must know, the Press is always ready to accept a suggestion from the Court in regard to leaving out undesirable details. There is, of course, a section of the Press which does publish indecent things; but the evil of driving publicity underground altogether seems to me to be far greater than the occasional publicity which is given. It has been held by publicists and by jurists and by lawyers for many years that publicity is one of the most important things for the administration of justice. There is no doubt that the Royal Commission reported on the matter and suggested that there should be power in the presiding Judge to have control of the reporters; but the proposal made by them and the proposal made in this Bill go further than anything that has been done in the past. Subsequent to the Report of the Royal Commission, as late as 1913, in a suit before your Lordships, with all the Law Lords present, a unanimous and strong judgment was given in which they cited publicists and spoke of the importance of the freedom of reporters. The only 87 possible method of limitation that was made to that was by Lord Haldane when he said that in certain cases the issue of justice might be made impossible. He was at once caught up by Lord Halsbury, who said that although he would not controvert the noble and learned Viscount altogether, he should like to see the case in which justice could not be carried out before he came to any decision on the matter.
If I may, I would like to quote briefly Lord Haldane's words on this subject which show how different his view was at that time from the position which is laid before us by this clause. The noble and learned Viscount said—
Whatever may have been the power of the Ecclesiastical Courts the power of an ordinary Court of Justice to hear in private cannot rest merely on the discretion of the Judge or on his individual view that it is desirable, for the sake of public decency or morality, that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and over-riding principle which defines the field of exception and does not leave its limits to the individual discretion of the Judge.
Every other Law Lord backed up Lord Haldane, and endorsed the view of Lord Bramwell, two years after the Matrimonial Causes Act had passed, where he said that the Divorce Court being a new Court was constituted with the ordinary incidents of other English Courts of Justice and, therefore, that the proceedings should be conducted in public. Lord Halsbury said, "I am of opinion that every Court of Justice is open to every subject of the King." He added that this was a broad, fixed rule. Lord Loreburn said, "The inveterate rule is that justice should be administered in open Court." Lord Shaw said, "To remit the maintenance of the constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand."
§ Those are very strong expressions; and the noble and learned Lords quoted two cases that had gone before as to the importance of this power of publicity. If you drive these things underground you are much more likely to have rumours spread about by one party or another, and possibly the bribing of officials to obtain information as to what occurred in Court. There are certain other cases where sus- 88 picion of a most grave character might easily arise. One occurs to me in the well known case of Crawford v. Crawford heard some years ago. From the evidence given I am sure that was the case which the Judge would have said should be heard in private, but if it had been heard in private and particulars had come out afterwards it might have wrecked the Government of the day or been at any rate of the most serious character by virtue of the suggestion that the particulars had been purposely kept concealed. I suggest that it is unwise to give Judges a discretion in this matter. I do not think it is advisable, when a Judge tries a case and says what according to his view is morality, or humanity, or decency, or justice (it should not be done) in secret without any of the restrictions which may occur by his knowing that anything of moment may be reported in pubic and that the public would have some control over it.
Page 18, line 6, after ("court") insert ("or a court of summary jurisdiction").—(Lord Askwith.)
§ THE EARL OF READING
I am to a certain extent in sympathy with some of the observations made by the noble Lord who has just sat down, but I cannot agree with the remedy that he suggests. I have put down Amendments on the Paper designed to give effect to the suggestion that I wish to made to your Lordships, and they are to be dealt with, it seems to me, in two categories. The first deals with the question of hearing cases in camera. Then there is the second which arises with regard to the publication to be allowed. That comes under paragraph (b). I cannot but think that it is desirable, if your Lordships will permit it, that some indication of my view should be given by me, as the mover of these Amendments, before you deal with that proposed by the noble Lord.
I agree entirely that it is undesirable that you should have trials in camera. Judges have again and again expressed their aversion from trial in camera. It is a safeguard to the public, and also to the Judges and generally to the administration of justice to have trials in public. Nevertheless, there are cases in which it may be, and indeed has been, thought to be impossible to administer justice in public. It has always been accepted, and certainly was so stated in your Lordships' 89 House in the case to which the noble Lord referred, that the paramount duty of a Court of Justice is to administer justice, and that there is a right in the Judge who is trying the case, if he should come to the conclusion that justice cannot be done because of the public being present—he has now under the law as it stands the right—to try that case in private. That was laid down in the case to which reference has been made. The view was accepted certainly by Lord Haldane, Lord Loreburn, Lord Halshury, with some limitation upon it, and I think in truth by all the noble Lords who sat to hear that case.
The practice of the Courts has really been limited. I think it may be stated very briefly; because I certainly do not wish to detain your Lordships with a discussion of legal principles or problems. Courts administer justice in camera in relation to wards of Court and lunatics, or where there is a question of a secret process under discussion and it may well be that in such a case the property which it is intended to preserve would be destroyed if the case were heard in public. That is a class of case which stands altogether by itself. The cases of wards and lunatics are really matters more of administration by the Courts than they are really matters involving principles of law to be laid down for the guidance of the general public.
Generally speaking, Courts have always set themselves against hearing trials in camera. I remember one case, when I was counsel at the Bar, in which the late Lord St. Helier ordered a case to be heard in camera. It was a divorce case. It was a case in which, appearing for a lady, I made the application to the Court, founded upon authority, on the ground that it would be impossible for the lady in the circumstances to state the facts with a number of persons present in Court, and that if the Court insisted that that must be done there would be a denial of justice, because the lady was absolutely incapable of giving her evidence except with just a very few persons in Court who were interested in the case. And the order was made in that case, and that part of the case into which the lady could not go in public—which involved going into detail of a character which can be imagined and certainly which I had never met before in any case—was taken in camera and the rest of the case was heard in public. That is an illustration of what is meant by hearing part of a case in camera where it is impossible to ad- 90 minster justice if the public is present. That is the general law.
If the noble Lord's Amendment is accepted it would be inserting in this Bill an enactment which is contrary to the general law. It would be limiting the general law, because it would do away with that which is really only declaratory in this case—that is that if the interests of justice require it a Judge may order that the proceedings be heard in camera. Your Lordships are aware, and it will not need any emphasis, that it is a right which is extremely rarely used, because every Judge sets his face against hearing cases in camera. Even recently, in the trial of a case of incest which was made punishable by the Statute of 1908 and which the Legislature decreed should be heard in camera, Judges have protested, and protested publicly, against hearing them in camera, not only because of their own dislike, but because they think the punishment does not become sufficiently public and many of the public (at least a number of them) may not be aware that it is a crime to commit incest.
I have, nevertheless, the greatest respect for the authority of the late Lord Gorell and those who were associated with him in this Royal Commission. I was a member of the Commission for some time, until I became a member of the Government, when I resigned. During my membership we did discuss, not formally, but we did discuss this question of publication in the Press and certainly the views expressed upon it were extremely varied. It was impossible to obtain unanimity except by means of a compromise. Having regard to the recommendations of the Commission, I would suggest that the better course would be to leave in the words "if in their or his opinion the interests of decency or justice so require," but to omit the words "morality, humanity." The effect of that would be that in such cases in which, as I have already explained, the Court had a jurisdiction you leave the Court the jurisdiction which exists. You are really only declaring the law. But by the addition of the word "decency" you are giving the Courts a power which hitherto they have not possessed. That is an innovation. I am not particularly enamoured of it, because I cannot but think that on the whole the Press does report with decency, though there are papers which go as far as they possibly can, and I very much doubt whether anything can stop it. 91 There are other cases of a similar character to which these provisions would not apply, and I am so anxious to give effect to the views of the Royal Commission who, with all the difficulties before them, having heard all the evidence, came to a conclusion which undoubtedly does represent a compromise, that I would support it so far as I possibly can in this respect. But I cannot support a Bill which says that if, in the Judge's opinion, "the interests of decency, morality, humanity or justice so require"; because I really do not know what the words "morality" "and humanity" there mean. One does understand "in the interests of justice," and, as I say, I understand and am prepared to go so far as to include the word "decency," but I cannot believe that Lord Gorell, if he had been spared to be present to-day, would have been in favour of inserting in a clause giving discretion to the Judge such wide language as "in the interests of … morality, humanity." The words cover every possible case that can be thought of. I cannot but think that what they had in mind was "decency," and when they were speaking of "morality and humanity" they were really wishing to restrict publication in the interests of "decency." There are many opinions as to what would be "morality" in particular cases, and "humanity" is even wider. It is because I think the clause would give such far-reaching discretion to the Court that I am moving in a later Amendment to omit the words "morality, humanity." If those words are left out I am prepared to support the clause with the words "in the interests of decency or justice."
May I add one further word, as I wish to make the position I am taking up quite clear as regards this clause? I do not believe in the second subsection so far as it seeks to restrict publication until the conclusion of the proceedings or to restrict pictorial representations in connection with such proceedings. I do not propose to discuss that at the moment as it travels into another category, and I prefer to make my few observations when we come to discuss that point.
What I am suggesting to the noble and learned Lord at present is that if we leave out the words "morality, humanity," and leave it "justice or decency" we are covering everything that can properly be asked for. We are not really adding to the 92 discretion of the Judges. We are only doing what the law requires, except that we are allowing the Judge, if he thinks it right and necessary in the interests of decency as well as justice, to order the proceedings to be in camera. It is for that reason that I am opposing the Amendment with the object of asking your Lordships to agree with the Amendment I have down later.
§ LORD ASKWITH
Does the noble and learned Lord say that he is not wedded to the word "decency" and that he would be content if the clause ran, "in their opinion the interests of justice so required"? Opinions vary as to what is "decency."
§ VISCOUNT BURNHAM
The publishers of this country, for whom I speak, and who have a right to be heard in this House on this Bill, take the strongest objection to this clause as it is drafted. They believe that it is reactionary in principle and would be wholly mischievous in working. They would not object to the clause as amended by Lord Askwith, because it is no concern of theirs, but I think that Lord Buckmaster, who has piloted this Bill with such consummate skill through all the shoals and quicksands of Committee stage, would be well advised to leave out a clause which seems to the publishers to be founded on an exploded order of ideas, and which I feel certain, if persisted in, would have a disastrous effect upon the future of the Bill.
In another place we used to hear talk of "wrecking Amendments." I suggest to Lord Buckmaster that this is a "wrecking Clause," and even if it passes your Lordships' House it is not likely to survive the ordeal to which it will be subjected in another place. It is wholly distinct and apart from the main purpose of the Bill and seems to have been thrown in by the Royal Commission, to which the noble and learned Lord apparently is bound hand and foot, as a sort, of make-weight. It was adopted unanimously without much connection logical or statutory with the rest of the Report. It is quite natural, as your Lordships will think, that the newspaper Press will not willingly accept this restriction on the right of publication. They wish to be left where they are under the general law of the land, amenable to the Courts if they publish what is indecent and obscene, and not specially fettered in this matter. Whether the Public Prosecutor takes action often enough is quite another thing, which I will not discuss. 93 Perhaps your Lordships will allow me to read the resolution arrived at by a conference of the whole Press of the United Kingdom called to consider this clause. It is as follows—The Conference desires to enter a strong protest against the proposals contained in this clause, and is of opinion: (1) That any such change in the law is unnecessary and undesirable in the public interest, calculated to interfere with the due administration of justice, and to lead to collusion and perjury and to false charges which could not well be made in a public Court; (2) that the open administration of justice is one of the guarantees of civil liberty, and one of the most effective safeguards against corruption and deception; (3) that it would be extremely dangerous that matrimonial causes should be dealt with in private, thus depriving the public and the Press of the opportunity of criticising the actions of litigants, Judges, magistrates, counsel, and witnesses, and the working of the divorce laws; (4) that the social questions involved are matters of public interest and do not alone affect the parties immediately concerned; (5) that the existing law provides ample safeguards for the purpose of preventing the publication of matter which should not be published.The general law is well known to your Lordships, and I feel a little astonished that Lord Buckmaster, whom I have always looked upon as a stern and uncompromising guardian of the older ideas of Radicalism, should want to do away with the right of publication, which I think Hallam stated was the security of all securities for justice. I hardly think he is really of that mind. He may be prepared—he has not said so—to accept the Amendment, in which case I do not want to prolong the already long Committee stage of this Bill.
Every one admits that the right of publishing judicial proceedings has always the balance of advantages or of evils, and not only in matrimonial causes. Almost a hundred years ago this week the Lord Chief Justice of that day—Lord Chief Justice Abbott—pointed out what mischief had been done by the publication in the Observer of the judicial proceedings in the Cato-street Conspiracy. He fined the publisher of the Observer £500, and said that the publication had been productive of a great deal of civil trouble and ought never to have taken place. Every one must know that the suggestion of evil makes ill things done in many cases—not only in connection with sexual offences. At the present time, when there is such an outbreak all over the country of robbery under arms and house-breaking, nothing probably leads more to the propagation of the idea that 94 these things can be done with profit to weak and ill-balanced minds than the publication of proceedings taken in regard to robbery and violence. Yet I do not suppose that any of your Lordships would propose that the general right of publication of criminal proceedings should be fettered and limited. I suggest that it is not applicable in this case.
I do not know whether all your Lordships would regard Mr. Justice Darling as a Judge to be followed, but the other day in connection with another sort of moral offence he declared that—It was a great disadvantage that the public should not know that trials took place for incest, who were the accused, and what sentences were passed if they were found guilty. As such trials took place in secret by order of Parliament, these facts did not get known. I am certain myself that incest would be much less frequent if people knew that since 1908 it was a crime punishable in the ordinary Criminal Courts of this country.That is the opinion of the senior Puisne Judge in the country, and was given only the other day in an analogous case coming before him; but I venture to point out from my own experience and knowledge that in these moral causes publicity is the real penalty. If you put an end to the right of publication you relieve the man who is guilty of some bestial and cruel act in his married life of the penalty which he most fears—the penalty of being shown up when he goes in the street or the market place. Monstrari digito prœtereuntium.
There is no doubt that publicity has another influence. I am told by solicitors who have most to do with these cases—I do not give their names for obvious reasons—that if reconciliation takes place between the parties it is in most cases due to the fear of publicity—what is called washing dirty linen in public. I dare say the noble and learned Earl, who has just spoken from his own experience in the Courts, can confirm what I am told by those who have every right to be heard; but I think your Lordships should think once, twice, and thrice before you interfere with the general law in the way which is proposed by this clause in the Bill. There are high authorities who have laid down that publicity is of the essence of the whole matter. If your Lordships will pardon me, I should like to quote what Bentham said—Publicity is the very soul of justice. It is the keenest spurt to exertion and the surest of all guards against improbity. It keeps the Judge himself while trying under trial.95 That is the point which I wish to make. I hardly think that this is a case in which you ought to leave the Judge to decide. In some cases I would rather go back to the old system and allow the most rev. Prelate opposite to decide than I would leave it to the Judges, who must very often be actuated by prejudice or preconceived ideas as to the nature of these moral causes.
In the old days a good deal more could be said for the censorship than most people suppose. Nobody suggests that we should restore the censorship, but I should greatly deplore if you are going to ask every Judge who tries a matrimonial case to say whether there shall be publicity or not. As to the proposal that there shall be delay in publication, that would reserve all the trials for the Sunday newspapers; and it is so absurd that I hardly think it can be persisted in. That would be class legislation of the worst kind, and I am sure the noble and learned Lord would not be in favour of that provision.
Generally, I suggest to your Lordships that public ignorance is a very feeble defence for private morality. If I were an opponent of the Bill I should support this clause through thick and thin, because it would prevent the Bill passing into law, but I happen to be a supporter of the Bill, and I ask your Lordships with great respect, on behalf of the publishers of the country, to pause before you do away with the cardinal principle of British justice, which has stood the trial of time and kept its reputation so high, and left our Courts with the greatest fame for fairness, and on the whole, I think, for decency, of any Courts in the civilised world.
THE LORD ARCHBISHOP OF YORK
I think, as a member of the Commission, I should say a word upon this very important matter. I hope that the noble and learned Lord in this case will not yield to the appeal which has been made to him to alter his Bill. I have taken some part in the opposition to this Bill, but in spite of that I must resist the temptation offered by the noble Viscount, and as a member of the Commission ask that this part of the Bill should be retained, because it represents the practically unanimous opinion of the whole Commission. This was a matter to which we gave the most careful and constant attention, and we had the opportunity of hearing a vast amount of evidence from every part of the country and every interest concerned, 96 including the leading journals of the country, and it need scarcely be said that all the points which have been so forcibly urged by the noble Viscount were brought before us. It was after estimating them and giving them full consideration that we came to the conclusions which are embodied in Clause 32 of the Bill.
I do not for a moment say that the clause is not capable of verbal amendment. For instance, with regard to the Amendment which the noble Earl proposes to make in regard to the use of the word "humanity." I did not intervene in his speech, but the reason why the word "humanity" was used was that occasions sometimes arise when it seems desirable that part of the proceedings should be held in private, or should not be published, but which it would be difficult to bring under the heads of decency or justice. I mean particularly cases in which children are called to give evidence in open Court about the proceedings of their parents. That was an instance which largely dictated the use of the word "humanity." Nor am I specially concerned with the provision that the publication of the details of divorce proceedings is to be prohibited until the case is concluded. The object was to discourage the manufacture of sensation in the case of causes which attracted a great deal of social or public attention. As regards the Sunday newspapers, the noble Viscount is perfectly right. The statistics showed that the quite overwhelming mass of details in these matters was published by the Sunday newspapers, but we were informed, perhaps wrongly, that the Sunday newspapers very largely derived their reports from the daily journals, and that if the daily journals were restricted in this matter there would be still less published in the Sunday newspapers.
THE LORD ARCHBISHOP OF YORK
I do not discuss the point. But with regard to the main point of this clause we had, of course, before us all the time the argument that publicity is a great deterrent of the worst conduct which brings people within the Divorce Court, but we had to balance against that the admitted evil in all parts of the country of familiarising particularly young lads and girls with masses of undesirable and sexual detail. 97 It is extraordinarily difficult to lay down any criterion of decency in the matter. I think we were impressed with the fact that the Press most honourably suppressed matters which could really be described as indecent; but what we found—and the evidence showed it, as we think overwhelmingly—was that while nothing could be described as perhaps actually indecent, there was delivered and put upon the tables of the people of the country day by day masses of accumulated sexual suggestiveness. We had, for instance, die evidence of ninety-eight of the Chief Constables of the country who, with one exception, said they were satisfied that the provision of this stuff day after day was having the most evil effect, particularly upon boys and girls between fourteen and eighteen, and we had to balance the possible deterrent effect of publication against the amount of evil that was admittedly being done in the country. With regard to the effectiveness of the deterrent power of publication we had the evidence of the late Lord Alverstone, who was then Lord Chief Justice. His evidence, given with the greatest strength and force, was that he did not believe for a moment that publication acted as a deterrent in the worst cases, but that sometimes it ministered to a certain prurient love of notoriety, and that in any case any advantage could not be balanced against the disadvantage of circulating this immense mass of sexual suggestiveness amongst all sorts of people in the country, and especially among the young.
What I would like to say in reply to the noble Viscount who has just spoken is this. it seems to me that his speech, and the very weighty resolutions which he quoted, misunderstood the purpose of the recommendations of the Commission. We considered every kind of proposal, and we definitely ruled out any suggestion that these cases should be heard in camera. We believed that that was quite against the traditions of English justice, and that, especially in regard to these additional causes of divorce, in many cases it would be quite unnecessary. But there is all the difference in the world between a proposal that these cases should be heard in secret and that which is now proposed. The only proposal which justified a great deal of the vigorous eloquence of the noble Viscount was that pointed out by the noble Earl—namely, the permission of the Court to order a particular case or part of a case to be heard in secret. We deliberately 98 rejected the proposal that cases should be held in open Court but with the prohibition of publication. We believed that was against the whole tradition of the English Courts and the principle of English justice. We rejected the suggestion, which was much pressed upon us, that the cases should be held in open Court but that nothing should be published except a record of the name, the charge, and the result, because we felt that it would very often be most unjust that a man should be put down as having been accused of adultery, and that the case was heard and he was considered guilty, without any of the possible extenuating circumstances which might be revealed in cross-examination being published.
All that these proposals mean is that we should adhere to the principle of hearing these cases in open Court, and that we should not in any way insist upon a prohibition of publication, but simply that there should be power given more than is given now to the Judge in his discretion to restrain parts of time evidence, sometimes in very rare cases the whole of the case, from publication. The proposal as it is actually embodied in the clause of the Bill does not seem to me at all to warrant the language of the resolutions which the noble Viscount quoted. The division of the first subsection only enables the Judges to have definite statutory authority for what they already have in many cases felt able and open to do in the interests of justice. The second proposal I do not hesitate to say had the bulk of the evidence that was brought before us in its favour—namely, that the whole or portions of the proceedings should be sometimes withdrawn from publication. Certainly at the time of the Commission some of the leading journalists of the country seemed to say that they would welcome some restraint on publication which would assist them in their desire to publish nothing that was not in the public interest, and which would protect them from the extravagancies of unfair competition.
As to the second part of the clause I do not press, and I do not know whether the noble and learned Lord is pressing, its details, but the object of it was to prevent giving to the proceedings in the Divorce Court that most undesirable flair of public notoriety and sensation which accompanies photographing and sketching and the like. Lord Gorell himself took strong action in 99 the matter of sketching, and this is only following the same line and preventing that most undesirable advertisement of these unsavoury details of the Divorce Court. My object in venturing to take up a few moments of your Lordships' time was simply to explain the grounds upon which, after very full consideration, the Commission unanimously came to the conclusion that these proposals would be for the public good, and that they do not in any way seriously interfere with the traditions of openness which belong to English justice.
§ LORD BUCKMASTER
My Lords, those of you who have followed the Amendment set down on the Paper must, I think, have been wondering how it could be that speeches of such importance could be delivered upon an Amendment of which I do not think there could be any possibility of difference, because the Amendment that is being discussed is simply as to whether after the word "Court" you should insert "a Court of summary jurisdiction." The questions as to what the Court of summary jurisdiction or the other Court should do are all the subject of the other Amendments. I do not mention that in any way by way of protest, but in order that we may get our minds clear when it comes to the question of voting, because your Lordships would certainly be astonished if you found that by voting upon an Amendment which is innocence itself you had failed to give expression to the strong opinions that are no doubt held upon both sides upon the real substance of the matter, which is one of great importance.
The truth is that as soon as you begin to discuss this clause you must discuss it in its entirety—I was going to say whether the Rules of the House permit you to do so or not. It is impossible to avoid it, and the speeches that we have heard have all been directed to the substance of the clause and not to small details. The result of these speeches, it seems to me, is that there is a good part of this clause at any rate upon which there is no difference at all. I do not think that the noble Viscount who spoke very earnestly on behalf of the newspapers would object to the clause if it merely directed that either the Court of Appeal or a Judge of the High Court or the Court of summary jurisdiction might direct that any proceedings could only be heard in the presence of the members and officers of the Court and the parties to the case and 100 their advisers, provided that the newspapers could not be excluded. He obviously would accept that, because it gives the newspapers a right which is denied to the rest of the world. I am not complaining but am only saying what is obvious, and when noble Lords put down, as some have, Amendments to leave out the whole clause I do not think they can have considered exactly what it is the clause provides and how much of it they object to. The real thing that was objected to was the power not to direct that proceeding shall be heard in camera but to direct that proceedings shall be withdrawn from publication, or that the proceedings shall not be published until after the case has been heard. Those are the two main substantive provisions of this clause that are open to controversy.
I find that misfortune dogs my steps wherever I move through this Bill, because here was a moment when I had hoped that I could find myself in close agreement with the most rev. Primate. He is supporting the Report, and I have always been anxious to do so. But when I come to this matter and discuss it and express my own views upon it, I am bound to tell your Lordships that my own view is that this clause is not going to do any good, and I think it may do harm. The idea that was at the back of the minds of every member of the Royal Commission and has been most fully expressed by the most rev. Primate, is that of the immense mischief that may be done by the wholesale dissemination of unclean matter, and divorce cases are necessarily associated with unclean incidents. Therefore it is urged that the publication of these divorce cases, and particularly clever and alluring references to some of the most marked incidents in the trials, must necessarily be productive of great mischief to the young.
That really means that you ought to stop all the reports of all the divorce cases. Because it really is not the case that you are reporting that matters; it is the way in which you report it. If you were to take two cases, one with details that would shock the public mind and which the Judge might well think ought to be excluded from public notice, and another case with an ordinary, common incident of adultery, it would be perfectly possible for the newspaper to take the simple case and so dress it up and so emphasise the unpleasant 101 parts of the evidence—which must always be there—that it could make the report of that infinitely worse than a properly controlled report of the case which the Judge would stop.
Since this matter has become prominent I have done what, I admit, is not my, usual habit—I have read these reports in the papers. I have read them in several papers in order to see what was the nature of the matter that was being published. Upon the whole I am bound to say, if you once accept that you are dealing with an unpleasant thing and that nobody suggests that there should be no publication of the unpleasant thing, it seems to me that the daily newspapers exercise a very decent reticence and discretion in the way in which they deal with it. It is perfectly true that enormous importance is given in the papers to these trials. You cannot help it. The truth of the matter is that the whole world always wants to know what the half-world is doing, and, however much you may desire to avoid it when such a case comes before the Court, the newspapers will publish it, and no doubt they will do it because it is going to sell their papers. I say quite frankly to the noble Viscount (Lord Burnham) I discount his views about the sense of public spirit. It is not that at all. Let us be frank about it. It is published because it will sell, and it is published because if paper A does not publish it paper B will, and the circulation of paper B will go up. But as far as the weekly papers are concerned, though one might feel that it is a little sad to find important matters shoved entirely on one side by the divorce cases which reveal the intimate details of two or, it may be, three utterly worthless lives, yet none the less they do their work on the whole so that it is impossible to bring against them the charge of publishing anything that is in its nature unclean.
But I quite agree with what has been suggested by the noble Viscount. If under this Bill you give power to the Court to suspend the publication till the case is over the only thing that you will do will be to flood the columns of the Sunday papers, some of which are already the very worst offenders in this matter. It is a most lamentable thing, but it appears that the most popular subject for Sunday reflection consists in the weaknesses and failings of human beings as recorded in the Divorce Court during the week. Nobody wants to 102 do that. If these matters are to be published they surely ought to be published as they occur day. by day, and then you may at least hope that when the Sunday paper comes out they will be stale and almost forgotten. I say, therefore, that this power to repress publication will not really effect anything at the present time. I do not think anybody can say that the present daily reports are bad, and if you leave 98 per cent. of the cases so that they can be published, whatever mischief you dread will be done then just as much by the 2 per cent. which the Judge may think it his duty to withhold from the world.
The next thing is this, that it is ineffectual for another reason. Among the cases with which I have made acquaintance in my recent examination I saw there had been a case about a lady who certainly has had unusual experiences, and nobody can doubt that opportunity was given to the newspapers to publish some extremely unpleasant things. It was not done. But supposing that the Judge, fearing that it might be done, had stopped it, what would the result have been? That woman is now indicted in a Criminal Court, and all these matters will come out again and the Judge could not stop it, and if you had stopped it in the first instance I cannot help thinking that you would have given a much stronger temptation and impulse to publish more undesirable matter in the second case, than you did when you trusted, as we do trust now, to the newspapers' sense of public duty and decency, and let them publish what they think right.
I think, however, few people can suggest that I have had any very intimate relations with the newspapers. Such relations as I have had frequently produced violent collision. But the best way to control the newspapers is to trust them. If you make them think that they are working under a sense of trust, and honour, and obligation they will obey. Try and escape from it, try and shut out the publication, try and prevent them getting news, and they will be up to every device that is known for the purpose of getting round you. I believe that this Bill will make a great mistake if it is carried through in its present form, although I am responsible for its introduction, because it is simply an attempt to stop the newspapers from having access to matter which they may or may not want to publish. I believe the right thing to do is to leave the whole of these words out excepting "decency" 103 and "justice" and to provide that the Judges in any of these Courts shall have power, if they think right, to direct that the cases shall be heard by no one excepting the persons named in the Bill and such members of the Press as think it right to stay. How these observations are to he reconciled with all those Amendments which have been moved I do not know, nor do I know what view your Lordships will take upon them. But as I have had some responsibility in connection with this matter I thought it right to explain in some detail what my view was.
THE LORD CHAIRMAN
For your Lordships' convenience I will now put the first Amendment, moved by Lord Askwith—page 18, line 6, after "court" insert "or a court of summary jurisdiction."
§ On Question, Amendment agreed to.
§ LORD CHARNWOOD
My Amendment differs very little in effect from that of Lord Burnham, and I shall not move.
Page 18, line 7, leave out ("morality, humanity").—(The Earl of Reading.)
§ On Question, Amendment agreed to.
§ LORD ASKWITH had the following Amendment on the Paper: "Page 18, line 8, leave out from the beginning of the line to the end of line 25."
THE LORD CHAIRMAN
In case the noble Lord's Amendment is not agreed to, I suggest that I should put the question, That lines 8 and 9 stand part of the clause. If that is not agreed to, the rest can follow as consequential.
Page 18, leave out lines 8 and 9.—(Lord Askwith.)
§ On Question, Amendment agreed to.
Page 18, line 10, leave out from the beginning of the line to the end of line 25.—(Lord Askwith.)
§ On Question, Amendment agreed to.104
Page 18, lines 26 and 27, leave out ("it under Part II of this Act") and insert ("them or him").—(Lord Askwith.)
§ On Question, Amendment agreed to.
§ Clause 32, as amended, agreed to.
§ Clause 33 agreed to.
THE LORD ARCHBISHOP OF CANTERBURY moved, after Clause 33, to insert the following new clause—
The marriage of a person whose previous marriage has been dissolved under the provisions of this Act, and whose former husband or wife is still living, shall not be solemnised in any church or chapel of the Church of England.
§ The most rev. Primate said: We have come to a grave matter somewhat different from the subjects which have been hitherto under discussion. We have dealt now with 33 clauses of this Bill, and some of the changes we have made in our English matrimonial law are, I am willing to believe, fair and even right. We have agreed to an equality of the conditions on which divorce can be asked for as between the two sexes. We have agreed to the relief of those who are excluded by great poverty from what the rich can have; and we have agreed to an enlargement of the grounds for a decree of nullity. All of those I and the others who sit by me have agreed to or supported. But there are others which we have opposed on the general lines of what we believe to be the public welfare, respect for the marriage bond, and a general steadiness in regard to the whole subject of matrimonial life and permanence. In all that we, voting here because we are present as bishops, have been acting (so to speak) as citizens. We have been looking at it as such and not especially as ecclesiastics, although, of course, I need not say that our citizenship, like that of most of your Lordships, is based on a belief in Christianity and Christian principles. We believe the English people to be with us in the votes we have given, and that this will ultimately be proved. Well, we have been beaten on clause after clause. The noble and learned Lord, Lord Buckmaster, has had his way; but he has treated us with perfect considerateness and courtesy at every turn. I venture to urge upon him now not to press the victory too far, but to treat with reasonableness and fairness and consideration even those of us from whom he differs most widely.105
We have come now to an entirely new branch of the subject. The question that arises is, How ought the Church, as such, to regard the new plan? How do the new conditions concern our responsibility as clergy of the National Church? To that there can be for nearly all of us, or, perhaps, for all of us, but one answer. Some of the new enactments can by no stretch of language be brought within our Lord's own words. I do not apologise for quoting these words once more, for they lie at the root of what I have to say. The words on which we rely are these—
But I say unto you that whosoever shall put away his wife saving for the cause of fornication causes her to commit adultery, and whosoever shall marry her that is divorced committeth adultery.
Those who accept the theory of divorce which this Bill, so far as now agreed to, embodies, must disregard those words. They either repudiate their allegiance to that standard, or they interpret the words not as a direction or as a rule but merely as asserting a general principle.
§ It would be out of place for me to attempt here and now to dwell in detail upon the explanation of that passage except to say that for those who, like myself, take these words of St. Matthew which I have quoted—with the exception I have mentioned—as our basis, a great deal turns upon the introduction of the exception. For the exception, and the statement of it, shows it to be probably something more of a rule and something less than a mere assertion of a general principle. That, I imagine, is the kind of proposition that every lawyer would accept. I suppose that is the real significance of the phrase that "the exception proves the rule." Our Lord's words have always been regarded as the basis for the permanent sanctity of the marriage vow, and we have rested thereon; and in the West, at least, the Church of Christ has enacted its law from the very first. It is not a question of "mediæval subtlety," or of "æsthetic phantasy," or other phrases which have been used. It is on the strength of the words of our Lord himself which we believe make marriage indissoluble, save (it may be) on grounds of adultery; and that exception has been a matter of individual opinion and of individual counsel but never of the Western Church's enacted law. When the ground of dissolution a vinculo was adultery the Church has been looser—shall I say?—in dealing with in 106 dividual cases than when framing general statements about the law; or, to put it otherwise, the Church's law for its own members has been quite clear, but it has been rather imperfectly carried into execution.
In recent years in England we have taken a perfectly clear line on the larger principles concerned. It is not a mere question of the English traditional law, or what we retain of former canon law and the rest, but in the great gatherings which take place decennially of our Church authorities—one is to take place next month when 270 Bishops will be there—we have twice recorded the words I am about to quote—
That inasmuch as our Lord's words expressly forbid divorce, except in the case of fornication, or adultery, the Christian Church cannot recognise divorce in any other than the excepted case, or give any sanction to the marriage of any person who has been divorced contrary to this law, during the lifetime of the other party.
That in no circumstances ought the guilty party, in the case of a divorce for fornication or adultery, to be regarded, during the life time of the innocent party, as a fit recipient of the blessing of the Church on marriage.
Then as regards the re-marriage of the innocent party—the other being absolutely and totally forbidden by us, so far as we can forbid it—we have steadily, during many years now, discouraged it. We have given no licences (licences being a facility for it), and we have always advised resort to the civil authority.
§ Now a wholly new thing is introduced. The State changes its law on the ground of what you believe to be a wide desire for change on the part of those who do not regard Christ's word, which I have quoted, as authoritative or binding. If the Bill becomes law, the State will allow divorce for causes which the whole Church of the West has quite invariably repudiated. Will you really come to us now and say that because the State has made that change the Church must change its law and make it permissible for a priest to marry such persons, in the teeth of the words which I have quoted, the old words and the new? The demand is, to my mind, so unreasonable and so unfair that I do not believe the noble and learned Lord opposite will actually press it upon us, considering what the consequences may be.
§ Let me take examples to show the kind of difficulty to which I refer. A country parson may find a man coming to him and saying, "I want re-marriage because 107 my wife, whom I married years ago for better for worse, is mentally afflicted and has long been under restraint. I want to take another wife and the Court of Law says I may. Please marry me." Or, a wife comes and says, "I want re-marriage. My husband has gone away. I do not hear from him, or what I do hear is bad. This has gone on for years, so I want to take another husband and the Court says I may. Please marry me." Or cases are even possible in which the guilty party has obtained freedom against the will of the innocent party—an innocent wife whom he has deserted or misused—and he wants to marry another woman and to leave the innocent wife divorced against her will. "Please marry me." These are cases which may occur in any parish in the land if the Bill becomes law in the form in which it now stands.
§ Is it contended that in order to meet these eases which you have decided against our strong protest to be, as you think, for the public good, that the Church trust alter its law; that a parson must be made free to celebrate such a marriage if he chooses to do so, and that the Bishop has been forbidden to censure him ecclesiastically for so doing, in the teeth of the resolutions which I have quoted from the whole body of the Episcopate, not in England alone but in America, and the colonies throughout the world? You may answer, "We do not compel anybody against his conscience; we only give him leave." That is to say the Church, as such, must abrogate its right to have any rule or discipline and leave each case to the individual parson to decide. Do you really want that? Do you want the system to vary up and down England and to make the Bishops powerless to interfere? Is that fair I venture to ask the House—and I appeal to the fairness of the noble and learned Lord—is that fair to the parson, is it fair to his parishioners generally, is it fair to the whole Church as a body?
§ Is it fair to the parson? How can that man rightly decide, when a case like that comes before him, what are the rights and wrongs of the details of what the Court decrees in the matter? Putting him aside, is it fair to the parishioners who, whatever their parson's opinion or perhaps his eccentricity—I can give you strange examples of that—detest these marriages and who would yet be helpless to prevent their 108 clergyman, their parish priest, from so using the Church that is theirs? Is it fair to the Church as a body, the Church whose power to make and to keep any corporate rule you are simply scouting and putting a Parliamentary rule in its place? I do not believe that you will so act. Anyhow, I say with all gravity and with a full sense of responsibility that it is a quite impossible position for us to accept. If any of your Lordships think that the mere connection of the Church and the State, or the application of the system which we call "establishment," carries with it that, I utterly and entirely repudiate it.
§ You may say there has long been a discretion exercised by the clergy, one able to be exercised legally. Yes, and our difficulties have thereby been enormous, though we have tried to act as fairly as we possibly could. Of course, from the nature of the case, down to now the raising of these questions has been more or less improbable, because a guilty adulterer coming for remarriage does not want to have his case thrashed out in public and the story told. It would be an entirely different thing if, as the noble Lord believes, there are going to be large numbers of such marriages on other grounds altogether, of illness, or desertion, and the rest. You will find that you have multiplied the problems quite infinitely which will be laid before those who have to try to exercise some discretion in the matter. You have introduced new conditions altogether, and you tell us you believe the cases are going to be innumerable. Again, you may say, "We do not want Church rule over the State in England: people in these matters must judge now differently from of old." I quite agree: You say, "We want to be free now from ecclesiastical dominance or command over the nation." We are absolutely anxious that you should be.
§ You have made these changes. They go far. Lord Buckmaster told us that they did not go as far as he would have liked them and the time may come when lie may introduce more. You make your own rules. People are perfectly free to go to the authority which the State has provided for their marriage. It is a special form which anyone can use if he desires. We are not trying to impose Christian rules by Church authority on the State. What we want, and what we firmly claim, is that we may as a body be allowed to be 109 loyal to Christ's teaching as we understand it. You must not say to the Church, "We have changed your rules for you; your parsons may now do as they please in these matters." That is, I repeat, unfair to the parson himself, unfair to the parishioners to whom the church belongs, and unfair to the Church as a body. We claim the right to say that if people demand this sort of marriage they must seek the solemnisation of it outside the Church.
§ If your Lordships refuse us this you will be inflicting intolerable wrong on us as a body which has corporate life and rules. We heard a great deal, and rightly, about the hard cases which are really the justification for these proposals. What position will you have created for a bishop whose duty it is by solemn promise to control and guide the Church? It is a position which, without the least intention of acting harshly, we cannot assent to. I honestly believe that a civil marriage for those who are to come under this Bill will work out with perfect fairness. We protest against the claim to ignore our rules and force us into a new groove which we believe to be undesirable on social grounds—we have voted on that and been beaten—unhallowed, and definitely wrong.
§ To leave it to the clergy would be chaotic, to enforce it would be intolerable tyranny, and the only alternative, and the true one, is to keep it outside the Church whose rules you have decided to ignore or reverse. With all gravity I entreat you in the name of those moral and religious forces for which we bishops are among, the spokesmen, but by no means the only spokesmen, not to force upon us a situation intolerable to ourselves as a Christian Church and intensely hurtful to the peace and well being of what is at least one of the best and most thoughtful sections of the English people.
§ Amendment moved—
§ Insert the following new clause:
§ ".The marriage of a person whose previous marriage has been dissolved under the provisions of this Act, and whose former husband or wife is still living, shall not be solemnised in any church or chapel of the Church of England."—(The Lord Archbishop of Canterbury.)
§ LORD BUCKMASTER
I am very grateful for the kind and generous things which the most rev. Primate has said about me, and I wish that I could at once say in answer to his appeal that I could accept the Amendment. But I think even the most rev. Primate will see that, the Amendment, 110 as it stands, is one that it is hard to ask anyone to accept, because it provides that the marriage of a person whose previous marriage has been dissolved under the Statute shall not be solemnised in any church. Under the Statute a person is entitled to divorce himself for adultery and, as I understand it, the Church has accepted that.
§ LORD BUCKMASTER
I did not say that the noble and learned Lord has accepted it. I certainly understood that. the Church had accepted it, and there is abundant evidence in this Blue Book that they have accepted it as a lawful ground of divorce as an exception to the general rule of the indissolubility of marriage. Supposing divorce is obtained in those circumstances, and assuming I am right in thinking that it would not be contrary to Church doctrine to obtain a divorce for that cause (and that the husband who obtained the divorce was an innocent person), this Amendment would prevent him marrying again in any church.
THE LORD ARCHBISHOP OF CANTERBURY
I am anxious not to have controversy on technical points, but I want to make perfectly clear that the Church's law has never sanctioned the marriage of an innocent divorcee. An Act was passed through Parliament which a certain number of Bishops supported on very arguable grounds and the Church has since then in this country abstained from pressing, with any rigidity, control against the re-marriage of such innocent person. But my contention is that there has never been any such rule. What we have done is to allow a certain relaxation in the application or enforcement of the indisputable rule, but when you bring in new conditions we say that what we have tried to do is now thrown to the winds and we must ask for the right to insist upon what has been our written law all along.
§ LORD BUCKMASTER
The most rev. Primate admits that this Amendment asks the House to introduce into the Bill something far ahead in practice of what has been generally recognised up to the present moment. From the time when Henry VIII. was divorced until now people have been divorced and re-married in church, and except in very rare cases it 111 certainly has not been the practice for the Church to refuse their church as a place where the marriage may take place of an innocent person, woman or man.
This Amendment admittedly goes far beyond that, and seeks to provide that if any person avails himself of the provisions of this Bill and obtains a divorce, which the law says he is entitled to, he is not entitled to be married in any church though there may be found one or even more ordained priests who are ready to perform the ceremony. That does seem to me to be an extraordinarily strong thing to ask this House to accept. I am anxious to avoid causing any offence to the conscience of any man in Holy Orders, and I would be prepared myself to accept an Amendment to this effect, "Provided that the marriage of a person who has been divorced as a defendant under the provisions of this Act, and whose former husband or wife is still living, shall not be solemnised. …" Now, that gives you something which is more than has ever been stated before in an Act of Parliament. It provides that the re-marriage of the guilty person cannot take place in the church, and as far as that I am willing and ready to go. But to accept such an Amendment as this is something that I submit respectfully is far ahead of anything that has been accepted and practised by the Church of England since the days of the Reformation.
THE LORD ARCHBISHOP OF CANTERBURY
Who is the defendant under that part of the proposal where the reason is insanity?
§ LORD BUCKMASTER
The defendant is the person against whom the proceedings are taken, but I do not think there is much fear of any such insane person being married again. I hope that I quite attempted to meet the most rev. Primate.
THE LORD BISHOP OF ELY
I should like to say, in a very few sentences, why I give my most earnest support, speaking for the rank and file, to the Amendment proposed by the most rev. Primate. First of all I would earnestly ask your Lordships to disabuse yourselves of the idea that the opposition which some of us have felt bound to offer to this measure has been the outcome of mediæval or even ecclesiastical views. Our opposition is primarily based upon our loyalty to Christ and to the words of Christ. The great majority of Christians, I believe, are convinced 112 that our Lord delivered a judgment on the matter of divorce; and our belief in that judgment of Christ is, I need not tell you, reinforced by our own considered opinions as to social expediency in regard to divorce. Of course, there are elements of uncertainty as to the qualifying cause, but I would ask your Lordships' attention to this, that beyond all doubt no version and no interpretation of Christ's teaching allows divorce except for the one and only ground of adultery.
In regard to a point which was raised by the noble and learned Lord just now, I will simply say this, that the case of the innocent party with regard to divorce has always been a difficulty in the Church, about which the Church has felt uncertainty; and speaking for myself, in every case brought before me during the fifteen years that I have been a Bishop, I have always urged clergymen who have consulted me to use all their influence on the innocent party to induce him or her to be married by civil rites alone. It has always been a matter of difficulty and uncertainty in the Church, because no one can say positively that these words are not the words rather of the Evangelist than of Christ.
In no technical sense do we claim that our Lord was legislating, but we insist that He gave His judgment, and therefore as individuals and citizens, so far as we can exercise any influence upon legislation, we are bound to give effect to His judgment. I quite allow that among our fellow citizens there are those who are not Christians, and who therefore do not own allegiance to Christ or the words of Christ. I quite allow there are those among our fellow citizens who being Christians do not share or wholly share the convictions of, I believe, the great majority of Christians, as to the validity, the decisiveness, and I think I may say the peremptoriness of Christ's teaching. We do not question their rights or their conscientious exercise of those rights. The point upon which I beg your Lordships to fix your mind is that no words can, I believe, exaggerate the divergence between the extension of the grounds of divorce and the conviction which I believe the great majority of Christians entertain as to our Lord's judgment in the matter. Therefore to a very large proportion of earnest Christian people it would be a matter of the keenest distress if the marriages now made for the first time legal by this Bill were solemnised by the 113 service of the Church—surely that service is absolutely inappropriate—by the ministers of the Church or in the churches. Therefore it is a matter of fairness and justice that the Christian Church should be wholly exempt from any complicity in giving effect to legislation which most Christians are compelled to regard as in fundamental contradiction to the recorded judgment of the Divine Founder of Christianity.
The clause proposed by the most rev. Primate does not in any way impede the carrying out of what the majority of your Lordships desire. These hard cases which have been spoken of with such eloquence and sympathy will gee that relief which your Lordships desire they should get, without the parties being married in church. They can be re-married by civil rites. Therefore I implore your Lordships to be generous to the deep and abiding scruples of the Church, and accept the Amendment, which I believe is in accordance with the convictions of a large proportion—I think the vast majority—of the Christian people in England.
§ THE EARL OF SELBORNE
The Amendment of the most rev. Primate and the answer of the noble and learned Lord have really brought us face to face with some tremendous questions. We are brought absolutely in face of first principles. Let mine, in supporting the Amendment of the most rev. Primate, remind this House very briefly that the origin of the Church has no connection whatever with the State. The Church was founded on what was believed to be the doctrine, the teaching, and the intentions of our Lord and the Apostles who listened to Him. As years went on and the world became Christian for the first time was raised the question which has been acute ever since of the relations between the Church and the State. In England we have hitherto managed to live under a compromise, and a happy compromise, as I think, beneficial to the State certainly and I think also on the whole to the Church; but the question now raised goes absolutely to the root of this compromise.
If the Bill is passed in its present form I venture respectfully but most earnestly to tell your Lordships that you are raising the question of Disestablishment and Disendowment. I have for the whole of my life been an opponent of Disestablishment and Disendowment. It is hereditary in my family. My father taught me the 114 opinions which I hold; but those of us who have been most keen and most earnest on this question always had this limitation in our minds, that whatever the consequences might be to the State or the cause of Christianity for the time being, we never could make ourselves a party to the continued connection if the State were to ask the Church to be untrue to a law which she believed she had received from Christ.
This, my Lords, whether you realise it or not—and I am sure, you will not intend it—is, and no less than that is, the Question now raised. The most rev. Primate has told you, in very moderate but very earnest words, what the position of the Church in this matter is. It is not a question whether that provision is right or wrong. You who disagree with us, I am quite sure, give us credit—the same credit that you demand for yourselves—for deep, conscientious convictions in this matter. What you are asking us to do is to connive at the continued connection of Church and State under conditions in which we believe the Church will be untrue to the mission she has received from her Master.
On what grounds does the noble and learned Lord behind me object to the Amendment of the most rev. Primate? He says that if this Amendment is carried a certain class of marriages which have taken place in Church ever since the Reformation will no longer be able to claim the Church as the place of their celebration, and he says what a tremendous new question you raise by this Amendment and this claim. Who is it that has raised this question? Not the Church, not the Archbishop, but my noble friend behind me and those who support this Bill. It is they who have disturbed the existing relations. It is they who, for reasons that seem to them wholly adequate, have asked for this enormous change in the marriage law of the country. It is not our fault if, as the consequence of this change, this question is now raised. The one thing is carried with the other. We have not asked that this question, the remarriage of innocent people in the case of divorce for adultery, should be raised. It raises itself inevitably, because of the new causes which the noble Lord has induced your Lordships to add to the causes of divorce in the law of the land.
It is not possible, if you come to look at the matter closely and to consider it, to 115 classify the cases where the Church can be asked to agree to remarriages in Church and the cases where she can not. Nor are you entitled—I say so with the utmost respect—to lay down a law for the Church. You may lay down the law for the State. You cannot lay down the law for the Church. You may say "These are the conditions on which we will allow the connection of Church and State to continue." That is within your power and province, but if you do lay down such conditions you cannot quarrel with the Church and those holding the views we do if we say that under those circumstances we prefer the connection of Church and State to cease. I say that because I do not think you realise how tremendous are the issues which are being raised by the Amendment, and the answer which the noble Lord has given you.
I say, in the first place, that the issues are tremendous, and that they go far beyond this Bill. In the second place, I say that the issues are being raised not by the most rev. Primate or those who agree with him, but by the noble and learned Lord, because he has introduced this Bill. I ask you again to give credit to us for the same intense convictions in this matter that you yourselves hold. I ask you, whichever side you take in this great controversy, Is it to the interests of any of us that the passing of this Bill should be the beginning of a bitter controversy? Is it for the smooth working of this Bill? Is it in the interests of those who desire these changes in the law that through the length and breadth of the land you should have bitter controversies in parish after parish between the parish priest who has conscientious convictions and who will endure any penalties rather than give way—
§ THE EARL OF SELBORNE
As the noble and learned Lord himself said on the last Amendment, the whole of this big question is involved in the issue that the Archbishop has raised. Is it in the interest of the State that the whole question of the jurisdiction of the Bishops should be 116 raised; that the power they have had conferred upon them for centuries, indeed all through the ages of the Church, of giving directions to priests in these matters should be abrogated by an accidental clause in an Act of Parliament? I protest once again that the issues that are being raised are of the very first importance. If you decide against this Amendment you are only beginning a trouble which will last till it is settled either by the passing of an Act in accordance with the Archbishop's Amendment, or, as I should most deeply regret, by the severance of the present connection of Church and State. But do not vote in the belief that the point you are voting on is a technical one.
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
My Lords, I only rise for a very brief moment. I have taken no part in the Committee discussions upon this Bill that could be avoided, because others were in charge of it, and I was anxious not to consume time unnecessarily. I rise to make an observation upon the Amendment which is now under discussion, because two points occur to me, one of which at least may have some importance. I do not agree with the noble Earl who has just sat down that the responsibility involved in the Amendment of the most rev. Primate in its present form is a responsibility which can be imposed upon the noble and learned Lord in charge of the Bill. It would have been perfectly possible to attempt to give effect to the object of the most rev. Primate without altering the practice in which the Church, willingly or unwillingly, has acquiesced for so long in relation to the existing grounds for a dissolution of marriage. Such a course could be adopted, if it were thought proper, as the matter of very easy amendment upon the Report stage of this Bill.
In the second place, it occurs to me that no adequate consideration has been given to the proposal made by the noble and learned Lord in indicating the Amendment to which he would agree. I certainly think that the noble and learned Lord went a great length—a length to which many would be unwilling to follow him, though myself should on the whole, I think, decide so to do, if such an Amendment were placed upon the Paper before the Report stage of this Bill.
As to the larger questions that arise I ask leave to make, I hope without offence to 117 any one, a very guarded observation. I think that the Church would be taking a deep responsibility if it were to ask your Lordships to forbid a priest, who found himself able in his conscience to do so, to do that which your Lordships, on this hypothesis, will have pronounced in your consciences to be right and therefore to have made the law of the land. It is not as if those who had supported this Bill were proposing to impose upon the conscience of any bishop or any ecclesiastic a burden which affronts it in the view which as a Christian Man he holds, but are we not entitled to say to the most rev. the Primate and to the very rev. Prelates who are here to counsel us in these matters, "There are others who, like yourself, though occupying positions less exalted, owe duties to their flocks, who perhaps are able within the compass of their individual responsibility—which is the only question— to arrive at a conclusion for themselves upon these points." And if there be such a man, bound by the same vows as the very rev Prelates who are here, who has reached the conclusion that we are right, and that they are wrong in the fundamentals which we have discussed in the progress of this measure, why the Legislature to say to such a clergyman who believes that we are right in that which we also profoundly believe to be right, that we forbid him to carry out the wish of the Legislature and from lending his church. And when the noble Earl speaks of the Church as being his Church, that is, I think, a little startling language. I assent to no such claim. The Church is the Church of the parishioners.
§ THE EARL OF SELBORNE
I entirely agree that the parishioners are quite as entitled to protest as the Church.
§ THE LORD CHANCELLOR
I do not know that the noble Earl has been given a power of attorney by any general body of parishioners all over the country, and I would take leave, with the utmost friendliness to him, to say that many who have given great time to exploring these matters believe that a large number, perhaps a majority, of parishioners take a different view from him. But these speculations are always unwelcome, and very seldom valuable. But the pronoun was unhappily chosen.
§ THE LORD CHANCELLOR
The most rev. Primate and the noble Earl have both spoken with impressive gravity upon the risks that the discussion and the controversy now invited may bring to the theory and the practice of Establishment in this country. If the deliberate views of the leaders of the Church in this country were that their religious convictions made it necessary for them to visit with public censure a member of their Church, a priest in Holy Orders, who, in obedience to what he regarded as the dictates of his conscience, and acting within the declared limits of the policy of the Legislature—I say, if the view taken of their religion by the leaders of the Church rendered a conclusion so melancholy and so much to be regretted indispensable, I, for one, think that there are many who at this moment are profound believers and supporters of the policy of Establishment who would find it necessary to reconsider the basis upon which their belief depends.
THE LORD ARCHBISHOP OF YORK
I feel that I ought to say a word after the speech which has just been delivered by the Lord Chancellor. No words are needed now to bring home to your Lordships the gravity of the issues which we have reached. Would it be an exaggeration to say that your Lordships witnessed this evening the lifting of the curtain on the first scenes of a great drama, a struggle between Church and State in this country. And doubtless it will be with that possibility in view that your Lordships will consider these issues which are now before us, affected by the very different positions taken up by the majority of your Lordships and that which has been consistently upheld by the Church in this land.
The difficulties in this matter, since the time when the State, for reasons of its own, adopted a marriage law other titan that of the declared moral law of the Church, have been extremely great. It has only been possible to avoid bitter collision by straining that sense of equity which certainly ought always to be strong in the mind and judgment of a Church of Christ. But if these difficulties have always been great—and it is perhaps only those who sit upon these benches who realise how great and pressing they have been, and constantly are—they are, of course, immensely aggravated by 119 the new provisions which the majority of your Lordships have seen fit to place on the Statute Book of this Realm. After all, it could be argued that the Act of 1857 had the protection of one interpretation of our Lord's words. The supporters of the Marriage with a Deceased Wife's Sister Act might have claimed that at least the marriages which were allowed by it were not directly prohibited by any word of our Lord. But, as my right rev. brother, the Bishop of Ely has pointed out, we have now reached a point where it cannot possibly be said that the additional causes which the majority of your Lordships have assented to are in any way consistent with any interpretation of the words of Christ which does not plainly involve that they only express a general ideal which it is impossible for human nature to fulfil.
Let me put these words once again before your Lordships in the form in which I believe, in common with the most recent and most accurate scholarship, our Lord actually laid His guiding principle—What God firth joined together let no man put asunder. Whosoever shall put away his wife and marry another committeth adultery against her, and if she herself have put away her husband -and marry another she committeth adultery.Whatever the authority these words have upon modern society, to some of us they are supreme. They are at least on a different level from the principle, the only admitted principle, which lies behind the provisions inserted in this Whenever the main objects of marriage—which would include, remember, those inward and emotional and spiritual objects of which the noble and learned Lord, the Lord Chancellor, spoke so eloquently—have been frustrated, these marriages may be dissolved and the parties are free to marry again.
It may be perfectly true, as the most rev. Primate pouted out, that, having regard to the admitted difference of interpretation which has arisen with regard to one record of the words of our Lord, the Church in this country, at least within the last one hundred years and earlier, has admitted a very large measure of equity in dealing with those who dissolve their marriage because of the adultery of one or other of the spouses. But it is important to emphasise that this has been in the way of considerateness and equity, not in the way of any change of declared public principle or law of the Church. That is sufficiently expressed in the Prayer Book which is used at every 120 marriage, and whose language, with which all of us are familiar, reflects and embodies the unchanged principle which in this country, as largely in the West, the Church of Christ has adopted for centuries. We must not be supposed to have abandoned in any way the fundamental principle of the Church because, in this matter of admitted difficulty of interpretation, there has been rightly or wrongly a very large equity and charity of administration. Therefore the position which we have now reached is something which has never been reached before.
The difficulty that has arisen over that merciful and equitable administration of the principles laid down in the Prayer Book has always been extremely great. Your Lordships are well aware how exceedingly difficult it is, even in regard to a matter which ought to be so easily capable of proof as adultery, to determine who is or who is not the innocent party. The noble and learned Lord himself in an earlier speech gave us a most incisive picture of the kind of collusion that exists in suits of that kind; but although we have done all that was possible —perhaps too much—in this spirit of equity to acknowledge the position of the innocent party, the matter is now entirely changed by the introduction of all these other causes; for in the case of many of them the party who desires re-marriage will be apparently, from the point of view of State morality, innocent; and it is necessary, therefore, even in regard to the innocent party in suits for divorce for adultery—these conditions have compelled the change —to reconsider the whole matter and to put it on the basis of fundamental principle. I appreciate most fully, if I may say so, the concession which the noble and learned Lord has signified his willingness to make, and I think it may be of great value—
THE LORD ARCHBISHOP OF YORK
but it is impossible for us to accept it as a substitute for the clause which the Archbishop of Canterbury has moved. If I may occupy your Lordships' time for one or two minutes more I will give the reasons for that inability. He says that he is willing to provide by Statute that the guilty party shall never be married in a church or chapel of the Church of England; but that does not touch the question of how you are to determine who is the guilty 121 party and who is the innocent party. It does not affect the question that while persons may be innocent in the sense of not violating any of the standards of right and wrong which the State or average public opinion may allow, yet they have deliberately set at naught the expressed and formulated principles of the Church whose ministrations and whose blessing they desire in marriage to receive. In the case of these other causes of divorce which have now been introduced, who is to say that the man who leaves his wife in the asylum—in which she is confined through no fault of her own—and desires to marry someone else, is innocent. He is innocent in one sense. He is doing something which the law allows him to do, and something which average public opinion will condone; but he is not, and cannot be, innocent in the eyes of the Church which has a fundamental principle for the meaning of marriage, which principle he has set at naught. Therefore for that reason it still leaves the main issue unsettled if you were to be content with the concession which the noble and learned Lord is willing to make.
The value of the clause which the Archbishop of Canterbury has moved is that it brings the matter to an issue and provides what will be found ultimately to be the only possible remedy; for I invite your Lordships very shortly again to consider the consequences which would Follow even if the concession of the noble and learned Lord were accepted. Look at them from the point of view of the clergyman in the parish. There will be, let us remember, an immense increase of divorces throughout the country; we have been assured that there are thousands and tens of thousands of people eagerly awaiting the relief which the majority of your Lordships desire to give them. Therefore the position of the clergymen in hundreds of parishes in the country—already very difficult in regard to these divorce matters—will be a thousand times increased. Supposing he is a man of strong conviction, upheld by his conscience, and he decides that he will not marry one of the parties in a divorce suit who seeks re-marriage in his Church. It is true that his refusal by the provision of this Bill will involve him in no civil suit or penalty; but, after all, he is only human, and he has the odium still left upon him, even after the concession of the noble and learned Lord, of telling one of his parishioners," I cannot 122 marry you, although it is perfectly true that the law permits you to be married." Even if he has the protection of his Bishop, he has still to live with some one, perhaps his nearest neighbour, it may be one of most influential parishioners, in any case one of the flock with whom he desires to live in amity and to whom he desires to administer the best that is in him—he has the odium of refusing that man slat the law permits and what another clergyman in another parish might be perfectly willing to give to him. Or these parties leave the parish and go elsewhere; they come up to London, live in an hotel, manage somehow to be married by some accommodating clergyman and return to the parish. It is a position in which no conscientious man ought really to be placed.
Supposing he is one of those who do not wish to take what the noble and learned Lord would call a stiff and exacting attitude. He has still to satisfy himself that it is right for him to do what he knows, by virtue of all these resolutions which have been quoted already in this House, to be against the will and desire at least of the authorities of his Church, and he is placed in the almost intolerable position of having to decide for himself what is the right thing for him to do. And if he has to ask himself, even morally, what is the position of the party who asks for this re-marriage, how is he, how is any Bishop whom he consults, to be able to discriminate and sift when he has not the whole evidence before him? Even if the concession made by the noble and learned Lord were granted, there would still be the position that the Bishop was forbidden to censure any of his clergy for any marriage, except the marriage of parties admittedly guilty in an adulterous suit. I am bound to say for myself that I should find it exceedingly difficult to give way on a matter of that kind to the attempted compulsion of the State, and on a matter purely moral and spiritual I should claim the right to deal as my conscience dictates with any of the clergy in my charge. These difficulties being so, the suggestion of this new clause is, Why not remove at once all this uncertainty and difficulty and almost intolerable strain from the Bishops and clergy of the Church?
Then you must consider the parishioners. They are not all members of the Church of England, but many of them are, and of those who are there are certain to be some 123 who will be greatly offended if the Church is used for marriages of this kind, or if the clergy celebrate marriages of this kind within it. Surely it is far better at once to remove what must be, and will be if this Bill passes in its present form, even with the concession of the noble and learned Lord, a constant source of controversy and offence and scandal throughout the country. Finally, I would ask your Lordships to consider it from the point of view of the parties themselves. Many will certainly desire a religious service, but there will be always a doubt and uncertainty whether that will be granted or not. Is it not much better in their interests to say definitely and at once, so that there can be no room for uncertainty or for so painfully moving about from place to place in an attempt to get a religious marriage, that all these marriages, without distinction, are on the same level; they are civil marriages and they ought to be celebrated entirely under civil sanction. Quite apart from questions of fundamental principle, it seems to me reasonable to say, Put all these marriages in the same position and people will know exactly where they stand about them, so that there is no room for uncertainty, and remove once for all what is, and will be increasingly if the Bill passes, a great source of irritation and of heartburning.
I would urge one final consideration, and that is whether this is not wise in the interests of the State itself. I am sure there is a common desire among us all that the union of marriage should be lifelong and that we value a religious ceremony because it helps to impress that ideal upon those who are married. I believe most of us desire that in the majority of marriages there should still be a religious service, but the object which the State surely has in the desire that marriages should be religious in their character, would be manifestly defeated if, in an increasing degree, persons are permitted to go through a ceremony which must be to them entirely unreal. Listen to the old words—I take thee to be my wedded wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part, according to God's holy ordinance; and thereto I plight thee my troth.A man comes and professes to use those words when the woman to whom he has already plighted his troth is still alive, perhaps in a home or an asylum, maybe, 124 by some arrangement, separated from him, or even driven by his own sin to set him free to marry the woman who is now standing by his side.
In all cases, if this Bill passes, these marriages which use this form must be unreal; in some cases they would be a mockery. What would be the effect on others? Will it not be that everyone will take it for granted that these solemn words are looked upon merely as a form? If the State wishes that these words in normal cases should be regarded as serious and true, it ought not to encourage their use in other cases when they must be at best strained, or at worse flouted. I would submit that the public value of this religious ceremony, which is great, depends upon the public recognition of its sincerity and its reality.
But I turn from argument to appeal. I venture to say, having regard to the immense difficulty in which what you have thought fit to do will place the Bishops and clergy of the Church, and the pain it will give to multitudes not only of Churchmen but of your fellow-citizens, I would say to you—You have won your point; you wish to relieve what you feel to be hardships. You have secured the relief that you desire. If this Bill passes, I these unions will be sanctioned by law, the children who are their offspring will be legitimate. You have realised that your success involves deep pain to multitudes of your fellow-citizens. Would it not be generous to do your utmost to mitigate that pain? Do not heedlessly force the strain, it may be to breaking point, of the long association of the Church and State in this realm. These marriages have their origin in civil law. Keep them there. Keep them to the source from which they sprang. Do not obtrude the consideration of them into the very different sphere of the religious sanction of the Church. Let the Church be free from any responsibility for them, and let them remain within the sphere of that civil sanction which you desire to give them. I think that is an appeal which may commend itself to the instincts of fairness, considerateness, and justice.
§ THE EARL OF DENBIGH
I do not wish to detain the House more than a minute, to say that I have been busy abroad and have not been able to take part in the debates on this Bill, and that 125 I was somewhat perplexed as to how I should act on the Amendment of the most rev. Primate. As is well known, the Catholic Church entertains the strongest possible objection to this Bill, and it may be thought that on this particular Amendment I have no right to speak. It is not one which concerns me, but as a protest against the Bill, a Bill which I regard as most pernicious and extremely harmful, I intend to go into the Lobby in support of the most rev, Primate.
§ LORD PHILLIMORE
I am sure your Lordships will bear with me while I make two observations. The reason why the concession which Lord Buckmaster offered or suggested does not meet the point is this. We do not want to punish the guilty party. Marriage is not denied to him because he is guilty. What we say is that a marriage cannot be renewed because it has not
§ according to the Church's law been dissolved. It is just as wrong to marry an innocent party as it is to marry a guilty party. It is not a question of punishment; it is a question of the obligation not having ceased.
§ The other observation is with regard to the speech of the noble and learned Lord on the Woolsack and that of Lord Buckmaster. We who are opposing this Bill—we of the laity—are not relying upon our own opinions. We are relying upon the law of our Church which says that marriage cannot be dissolved. The proof of this is that wherever a marriage is sought to be dissolved it had to be done by a private Act of Parliament superseding the law of the land. The law of the Church of England allows no divorce for adultery or anything else.
§ On Question, whether the proposed new clause shall stand part?—
§ Their Lordships divided:—Contents, 50; Not-Contents, 51,125
|Canterbury, L. Abp.||Chilston, V.||Addington, L.|
|York, L. Abp.||Cross, V.||Annesley, L. (V. Valentia.)|
|Falkland, V.||Armaghdale, L.|
|Newcastle, D.||Hambleden, V.||Chalmers, L.|
|Northumberland, D.||Hood, V.||Charnwood, L. [Teller.]|
|Hutchinson, V. (E. Donoughmore.)||Forester, L.|
|Beauchamp, E.||Islington, L.|
|Dartmouth, E.||Bath and Wells, L. Bp.||Kintore, L. (E. Kintore.)|
|Denbigh, E.||Bristol, L. Bp.||Methuen, L.|
|Ferrers, E.||Chichester, L. Bp.||Morris, L.|
|Grey, E. [Teller.]||Chelmsford, L. Bp.||Oranmore and Browne, L.|
|Harewood, E.||Ely, L. Bp.||Phillimore, L.|
|Mayo, E.||Gloucester, L. Bp.||Redesdale, L.|
|Morton, E.||Ipswich, L. Bp.||Saltersford, L. (E. Courtown.)|
|Plymouth, E.||London, L. Bp.||Shandon, L.|
|Sandwich, E.||Norwich, L. Bp.||Stafford, L.|
|Selborne, E.||Rochester, L. Bp.||Thurlow, L.|
|Stanhope, E.||Salisbury, L. Bp.|
|Birkenhead, L. (L. Chancellor.)||Chaplin, V.||Kilbracken, L.|
|Churchill, V.||Lambourne, L.|
|Wellington, D.||Knollys, V.||Lawrence, L.|
|Monekton, L. (V. Galway.)|
|Crewe, M.||Atkinson, L.||Montagu of Beaulieu, L.|
|Lincolnshire, M. (Lord Great Chamberlain.)||Buckmaster, L. [Teller.]||Monteagle, L. (M. Sligo.)|
|Cawley, L.||Muir Mackenzie, L. [Teller.]|
|Linlithgow, M.||Clwyd, L.||Ponsonby, L. (Bessborough.)|
|Colebrooke, L.||Rathcreedan, L.|
|Bradford, E.||Dawson of Penn, L.||Riddell, L.|
|Devon, E.||Denham, L.||Rothernham, L.|
|Kimberley, E.||Desart, L. (E. Desart.)||Ruthven of Gowrie, L.|
|Onslow, E.||Fairfax of Cameron, L.||Saye and Sele, L.|
|Portsmouth, E.||Forteviot, L.||Somerleyton, L.|
|Russell, E.||Gainford, L.||Strachie, L.|
|Strafford, E.||Glenconner, L.||Stauart of Wortley, L.|
|Harris, L.||Sudeley, L.|
|Sandhurst, V. (L. Chamberlain)||Hemphill, L.||Whitburgh, L.|
|Burnham, V.||Hothfield, L.||Wyfold, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 34:
§ Saving for rights of clergymen of the Church of England.
§ 34.—(1) A clergyman in holy orders of the Church of England shall not be compelled to solemnise the marriage of any person whose previous marriage has been dissolved either in the United Kingdom or elsewhere, and whose former husband or wife is still living, and shall not be liable to any suit, penalty or censure for solemnising or refusing to solemnise the marriage of any such person.
§ (2) If any minister of any church or chapel of the Church of England refuses to solemnise the marriage of any persons who but for such refusal would have been entitled to have their marriage solemnised in the church or chapel, the minister shall permit any other clergyman in holy orders of the Church of England entitled to officiate within the diocese within which the church or chapel is situate to solemnise the marriage in the church or chapel.
§ THE LORD BISHOP OF NORWICH rose to move Amendments to Clause 34.
Page 19, line 15, after ("to") insert ("publish the banns of marriage of or to").
Page 19, line 19, after ("for") insert ("publishing the banns of marriage or for refusing to publish the banns of marriage of, or for").—(The Lord Bishop of Norwich.)
§ On Question, Amendments agreed to.
§ THE EARL OF SELBORNE moved, in subsection (1), after "solemnising or refusing to solemnise the marriage of," to insert "or for refusing to admit to communion." The noble Earl said: I want to draw your Lordships' attention in the first place to the fact that I have slightly altered the wording of the Amendment from what has been on the Paper during the last fortnight. As I understood it, the present state of the law was that a parish priest who admitted one of these persons to Holy Communion could not be liable to any penalty or suit but that the person who refused could. I did not wish to make any change in the existing law as regards the admission to communion, but I did wish to change the law by which the parish priest had no discretion about refusing, and I put it down, following the words as nearly as I could of the existing clause, for "admitting or for refusing to admit to communion." I found out that as the Bill 128 stood no change was made in the existing law about admission, and therefore those words were not necessary. I therefore omitted them, as I did not want any change in the existing law in that respect, and I concentrate upon that part of the law which I suggest ought to be changed. I suggest that in the circumstances of this Bill, and of the changes in the law being made by it, the conscience of the priest ought to be considered, and that a man who believed with all his heart and conscience that the people who are asking to come to the Sacrament are living in sin, should not be compelled to admit them, or be liable for a suit if he refuses to administer the sacrament. I ask for perfect liberty of conscience for the priest in both ways. At the present moment he has it in respect of admission, and I ask for it in respect of refusal.
Page 19, line 20, after ("of") insert ("or for refusing to admit to communion").—(The Earl of Selborne.)
§ LORD BUCKMASTER
I hope that a very little reflection will show your Lordships how impossible it is for me to accept this Amendment. The right to receive Holy Communion is established by Act of Parliament, passed in the first year of the reign of Edward VI, and from that time until now by the law of this country every inhabitant of this country, without regard to his religious faith, is at liberty, if he presents himself reverently in Church, to be admitted to Holy Communion, unless he is an open, unrepentant, and notorious evil-liver. How is it possible to ask us, when we have assented to the provisions of a Bill which we believe is passed to meet the urgent necessities of human life, to assent to the view that the people who avail themselves of the provisions of the Bill are open, notorious, and unrepentant evil livers?
Supposing the Amendment were passed, could anything be more cruel for the Church? What is the position they would take up? Supposing a man did refuse to admit to Holy Communion a person who had lawfully re-married, after divorce under the provisions of this Bill. Is he going to refuse on the ground that that person is living in sin, and if so, is repentance impossible? Or would they say, "If you will desert this woman, who in the eyes of the law is your lawful wife, you can then be admitted to the consolations of Holy Communion, but not until then." I 129 cannot believe that the Church would desire to have any such power as this, for it is intolerable to think that a zealot and, as I think, a misguided zealot, might be at liberty to condemn to a sentence of complete excommunication a person who was a law-abiding citizen, and deny him not only the consolations of religion but of what to some people is the hope of salvation.
§ LORD PHILLIMORE
I have heard some extraordinary law laid down in the course of the debate, but I never expected to hear the noble and learned Lord say what he has said to-night. He talks about everybody, notwithstanding any principle of the Church, having a right under the Statute to be admitted to Holy Communion. Does he not know that it is part of the common law that baptism is the door of the sacrament, and that no unbaptised person has any claim to Holy Communion? Does he forget that the Statute says that they must humbly and heartily desire it?
§ LORD BUCKMASTER
The Statute says "shall not without lawful cause deny the same to any person that will devoutly and humbly desire it, any law, custom, or authority of Parliament notwithstanding."
§ LORD PHILLIMORE
I am well aware of the words of the Statute. He has "lawful cause," because they are not baptised. They do not "heartily and humbly desire it," because they cannot desire it according to the rules of the Church. The Sacraments of the Church can only be desired by those people who believe in the rules of the Church. I have heard, as I have said, some very extraordinary things said about the law of the Church and about marriage, but I never expected to hear this.
THE LORD ARCHBISHOP OF YORK
I think your Lordships will agree that the speeches which have just been made raise issues of such importance and gravity that it is hardly possible to discuss them adequately at this hour. I know that the patience of the noble and learned Lord is very greatly strained by the time which is being taken to deal with all these Amendments in Committee, but I hope he will feel with me that it would be very undesirable to force the Bill through at the end when the only matters that at present remain are those which go to the root of some of the most cherished beliefs and convictions of the Church. Therefore I should wish the debate to be adjourned.
§ LORD BUCKMASTER
This is really the only Amendment of any consequence that is left. Everything else is consequential.
§ LORD BUCKMASTER
I do not wish, of course, to ask your Lordships to prolong a debate that has become tiresome and fatiguing to any of you, but I cannot help greatly regretting that it has not been possible to complete the Committee stage of this Bill to-day. However, if the most rev. Prelate asks mile to adjourn the debate, I cannot refuse his request, and it must be adjourned.
§ On Question, further consideration of the Bill in Committee adjourned.