§ Order of the Day for the Second Reading read.
§ LORD BUCKMASTER
My Lords, I ask you to give a Second Reading this afternoon to the Bill which stands in my name upon the Order Paper. The terms of the Bill are brief; its scope is strictly limited; and its aims are confined within narrow limits. It is not designed in any way to alter the existing grounds upon which divorce can be obtained. It does not attempt to explore once more that large disputed area upon which your Lordships entered with such patience and industry when I introduced my Bill for matrimonial reform more than two Sessions ago. It has this purpose and this purpose alone: to secure that whatever may be the grounds of divorce they shall be the same for both women and men.
574 I cannot help thinking that such a measure must find ready acceptance in this House. It is, indeed, one of the recommendations which stand over the signature of the most rev. Prelate the Archbishop of York in the Report of the Royal Commission. It was passed—and it was one of the only provisions that were so passed—almost in contemptuous silence by your Lordships when the more disputed Bill was before you, and notwithstanding an obstinate and prolonged opposition in another place, it was found when the numbers were counted in the Division Lobbies that there were only 26 votes against the Bill and 257 in its favour—a result which, I think, may encourage all of us who face opposition to remember that the strength of our opponents is not to be measured by the length of their speeches.
There is, indeed, as I notice, a Motion on the Paper in the name of the noble Lord, Lord Braye, which is, in effect, a Motion for the rejection of this Bill. The noble Lord occupies a special and a peculiar position in relation to this matter. He denies to us the great advantage of his knowledge, his experience and his eloquence on all the many matters of difficulty with which your Lordships are from time to time concerned, and the only occasion on which he comes down to assist our deliberations is when there is a Bill on the Paper relating to the amendment of the matrimonial law. Even then—the noble Lord must forgive me if I say so—he does not; come down here to argue this question upon the basis which the most rev. Primate (as I will do him the justice of saying) always adopts, that of saying that this matter must be debated in a popular Assembly upon the grounds of social wisdom and expediency, and that it is impossible for the member of any sect, however ancient its traditions, however great its authority, to attempt to impose its views upon a body of people of every variety of faith and creed.
I would ask the noble Lord this afternoon to approach this matter on a different basis, to approach it not as a member of a particular Church, but as a citizen of this country, and upon that basis I ask your Lordships why it is that this Bill should be rejected. Why is it that the opportunities which the existing law affords to men should be denied to 575 women? What is there in social justice or expediency that can warrant the continuance of a system which involves such marked injustice? I have considered this matter with great deliberation, and I could find only two arguments brought forward from time to time in support of the view that the law should remain unchanged. One is that the temptation to a woman to commit an act of infidelity is far less than the temptation to a man, and that the consequences of her act are immeasurably greater and more far-reaching.
With regard to the first, I have often wondered why it is that men speak about such matters, about which they can know nothing at all. It is perfectly impossible for anybody, by any measure or test, or scale or analysis, to evaluate the strength of the different storms and temptations by which men and women alike are swept away. It is easy for men to say that the woman's higher standard of conduct is due to lack of temptation, but I have yet to learn upon what foundation they base that statement. Nor do I think the question of temptation has really much to do with it. I have no great sympathy with the view that man's infidelity is due to some transient, some passing, gratification of a merely temporary inclination. If you once admit that principle you admit not merely justification for a solitary and isolated act, but for a prolonged and persistent course of profligate adultery to which, as the law stands to-day, a woman must either submit, or from which she must seek refuge in judicial separation.
I should think there can be no greater tragedy in domestic life than the tragedy of the man of unfailing fidelity to his wife, and of deep devotion—the man, to use the words of Othello:Who dotes, yet doubts; suspects, yet strongly loves!—who looks into the face of a child born in his own household, and is tortured by doubt as to whether it has the right to call him father. I do not for a moment deny that the results of the act are different, but I do say that even in such a case as that it is to my mind the man and not the woman who ought to bear the greater burden of blame. After all, it is the man who broke down the barriers of her defence, and it is the man who, if he be undetected, escapes scot free, while the 576 woman, until the end of her days, must bear alone the burden of the load. But it is not upon those considerations that the Marriage Laws are based. The reason why infidelity is a ground of divorce is that it is assumed to strike away from the very foundation of matrimonial relationships, and if it does so in the case of the woman, it equally does so in the case of the man. I cannot help thinking that people who support the present law cannot have regarded its true effect. At the present time, although a man may be known to be living a life of profligate infidelity, his wife can do nothing whatever, except insist upon the law compelling them to live apart. Freedom is impossible. She must either continue in the humiliating subjection of living in the house of a man whom she has ceased to trust, or she must be shut out in a condition of judicial separation, which will deny her, to the end of her days, any opportunity of restarting her life.
Then I know it is said that, after all, a man's infidelity may be regarded as of a mere casual character, and it is not right to put into the hands of a woman the power to divorce a man for a unique and unconsidered act of that kind. I wonder whether your Lordships have ever thought that in these days it is absolutely impossible that a woman would become acquainted with a casual act of infidelity like that. Why, at the present time, it is practically impossible for a woman to obtain evidence of adultery against her husband, although it be notorious, if he only consorts with loose women, because they can never be traced, unless, indeed, the woman does what every Englishwoman hates doing, and that is puts detectives upon her husband's steps. She is not likely to do that unless he begins to offend against her far more deeply. But, apart from that, is there any man in this House who will doubt for a moment the amazing generosity and good sense of Englishwomen? We know perfectly well that if such a thing did occur advantage would not be taken of it, unless the relationship between husband and wife had been embittered and degraded by other conduct. If, in the circumstances I have mentioned, a woman wished to be free, I would wish her well in her struggle for liberty.
This Bill is not drawn in the way that I should draw it, but it has passed the 577 Law Officers' Department, in another place, and although I can well understand criticisms, both upon the manner in which it is drawn and upon some of its terms, yet I would beg your Lordships, if you think the principle sound, to attempt no amendment, for, believe me, anyone who votes for amendment of this Bill votes for its destruction. The real fact is that this is a Bill that has with some difficulty forded the shallows which always wait to wreck private Members' Bills in another place. It has with considerable difficulty got through, and if it be amended here, and goes back for reconsideration, the Member who has charge of it in the other House assures me that he sees no prospect of its being made law. We are always frank in this House. Let us be perfectly frank about this. If anyone wants to wreck the Bill let him move Amendments and we shall know his purpose. If he wishes well of the Bill, let him make no such effort, although he may think, as I think, that the Bill could be made in many respects a more perfect measure.
As I have said, the Bill leaves all the wider questions of divorce entirely untouched. I am aware that that in itself must appeal to many members here who are anxious to see our Marriage Laws put on a saner and cleaner basis. I notice particularly that the noble and learned Earl, Lord Birkenhead, is reported to have said that he would certainly desire to amend such a measure as this. It has been my misfortune during the whole of my political life to be in active controversy with the noble and learned Earl. I do not think that he will say that our private relations have ever caused us to temper our tongues in public strife, but I do remember, and I do value, the help that he gave me when my Bill was before this House on a former occasion, and I sincerely hope that, when that Bill is introduced again, I shall be able to rely once more upon his great and valuable aid. But knowing, as I am aware that he must know, how anxious I am to secure the wider reforms, I trust he will permit me to make an earnest appeal to him to secure the passage of this Bill at least, and then let us see if we cannot work together for greater and more liberal measures.
This Bill, as I said, leaves wholly un-redressed the vast area of difficulty by 578 which the marriage question is surrounded. It would not be profitable, indeed, it would not be right, to invite your Lordships to a close consideration of what that position is at this moment. And yet it may be as well to recall to your minds, even briefly, the conditions of our existing Marriage Laws, with which, believe me, the people of this country are wholly unfamiliar. They do not know what it is that our Marriage Laws establish. Our laws establish, among other things, that if a woman marries a man, and on the night of their marriage she is infected with syphilis, she has no remedy at all; when she is cured she must, according to our law, submit herself once more to be the subject of a further experiment in the dissemination of venereal disease. If it be contracted after marriage, if there be any evidence of knowledge or gross carelessness, it may be evidence of cruelty, and the fact that the man is in this state may be used, but it is by no means conclusive, as evidence of adultery. But, subject to that, the woman has no remedy, and your Marriage Laws compel her once more to resume relationships with a man whose very contact and presence must be to her nothing but a subject of hatred and loathing.
At this moment cruelty, however gross, however prolonged, however degrading and insulting, gives a woman no right to liberty at all. Then insanity. Even though her husband be shut up for ever in a lunatic asylum she must stay outside, and, if he be liberated, our law declares that she must submit herself to his embraces and transmit to the third and fourth generation the taint of insanity by which her husband has been affected. Drunkenness, though it be associated with recurrent periods of delirium tremens and violence of the most terrible kind, gives her no right of relief, except to go to a police magistrate and get a judicial separation order. There is no liberty granted to-day for any of the horribly degrading relationships that arise when men and women are married and have physical repulsion from each other, unless, indeed, it is possible, from this physical repulsion, to argue that there is some physical defect. But, apart from that, the law says: "Oh, no; hate each other as much as you like, let the act of married relationship be to each of you an infinite degradation; debase and degrade a thing which may be made the most 579 beautiful and high communion. The law says you must go on until the end of time, and you shall never know what it is to be able to enjoy the free and happy companionship that men and women experience who are bound together in the bonds of affection." The feeling that I express about these things has, I know, caused people to say that I have been obsessed with this question.
§ LORD BUCKMASTER
The noble Lord has, I think, stated in public that I am obsessed with this question. I admit I am obsessed. I am obsessed with a sense of the injustice and wrong that our laws do to-day to many unoffending and unhappy people; I am obsessed with the knowledge that we deliberately deny the light to many who sit so sadly in the darkness; and I am obsessed with the belief that the laws which we intend to enforce have not the sanction of God, and offend the justice of man. These matters are the matters which were before you on a former occasion, and the result of that debate, although we were unable to get our Bill through another place, has been of immeasurable value in the dissemination of opinion upon this question. Work so set on foot is not going to end with this Bill: it will proceed. No one can doubt that the change is coming fast, that the minds of men and women are being influenced by the ever moving conditions of society and the swift procession of the years. The change will come. Whether it be in our time or in the time of others I cannot say; but, whether it be our hands or the hands of those who follow us by which the harvest is gathered, it will be you, my Lords, who have sown the seed. I beg to move the Second Reading of this Bill.
§ Moved, That the Bill be now read 2a.—(Lord Buckmaster.)
§ LORD BRAYE had given Notice to move, That the Bill be read 2a this day six months. The noble Lord said: My Lords, it is solely on the ground of opposing the extension of divorce, and no other, that I have placed this Amendment on the Paper. We have had many discussions in this House on the question of divorce in general—very long and, indeed, embittered debates. Divorce is very much in the air. It has come to 580 stay in this country in all probability. Since 1857 it has certainly been acknowledged by the law of the land. I know that the statutory Church of England has fought desperately to try to prove that the Church of England does not allow divorce. But the Church of England is a statutory Church, and is under the power and in the grip of the House of Commons. The House of Commons certainly represents, or is supposed to represent, the will of the people in this country, and it has sanctioned divorce as the law of the land.
§ The faculty of granting divorces was vested, I presume, entirely in Parliament for three or four centuries. Then, in 1357, a very great change took place: the faculty of granting divorces was vested in a Court of Law. But, even so, the practice was so uncommon, the recourse of people to the Court of Law was so infrequent, that the topic of divorce did not trouble the whole country in any appreciable way as it does now. That state of things has been growing in intensity ever since, especially during the last few years. Latterly the faculty of granting divorces has been still further extended by empowering a Court of Assize to grant them. That provision was contained, I think, in a single section of an Act of Parliament which bore no relation in its short title to the topic of divorce, and it passed, I believe, without any real public attention being called to it. I think it received the Royal Assent in December, 1920. That is the state of affairs at present.
§ We are called upon, in the particular Bill which is before us, to grant another extension. The noble Lord who moved the Second Reading of the Bill does not fail to understand', I am sure, that it is entirely and wholly on a different ground that I oppose these measures, inasmuch as the whole principle of divorce is one which I consider to be wrong and opposed not to human law but to Divine law. Therefore we are on a totally different footing, and it is exceedingly difficult, it is impossible, to argue about the details of a measure when you are opposed in toto to its fundamental principle. This Bill deals with a particular case and, as I stated just now, my only reason in proposing its rejection is that I wish to stop the spread of divorce and to prevent the facilities for divorce from becoming 581 larger and wider than they are at the present time. The cry still is for facilities: "Give us divorce. The principle of divorce is recognised by the country and we want facilities. We want to get divorces more quickly and more easily!"
§ Then there is urged that which I suppose some people would call a touching argument; it was very much laboured at any rate: "Oh, the rich people of this country can get divorce because they can pay the legal expenses. But how about the poor? You ought to extend divorce much further in order that the poor may come and avail themselves of the great advantages of the courts of law." That argument has been urged if not in all, at any rate in most, of the debates on this subject in your Lordships' House. This is a fellow measure to all those that have come before your Lordships in the last few years. It deals with a particular condition—namely, the condition of cruelty; but in substance I maintain that its object is really to facilitate divorce. If you can facilitate divorce, those who support the Bill will be only too anxious to find other and, perhaps, better reasons for extending the power of obtaining divorce.
§ The step proposed is a forward step, but it is a downward step as well. A step may be forward and yet downward at the same time. It may be a short step or it may be a stride, and certainly the Divorce Bills that your Lordships have discussed in the last few years have made steps forward which might well be defined as strides because they went very far. But they all failed. They were not carried through the other House of Parliament; many of them, in fact, died a natural death. There is this difference between those measures and this Bill. The present Bill comes from the House of Commons and was passed there, as the noble and learned Lord has pointed out, by a considerable majority. The opponents of marriage in this country and in many other countries are marching on. It is very terrible to think of the goal towards which they are marching because once the Divine law is forsaken, as it was to a large extent forsaken in this country at the Reformarion—in the sixth and ninth Commandments in particular—there is no possible stopping place. You must go on logically to what is really something like promiscuity.582
§ That may be seen from what takes place in America, in Switzerland, and in all those countries where divorce is sanctioned by the civil law. Strange to say, in Italy, where the Governments in the last forty or fifty years have been by no means favourable to Christianity whatever they may be at the present moment, there is no divorce law. As I think your Lordships know, in some parts of the United States and also in some parts of Canada the frequency of divorce is so appalling that, in Carolina I believe, they have actually proposed to abolish divorce altogether. In Chicago I believe there is one divorce to every twelve marriages, and probably as time goes on there will be one divorce to every half-dozen marriages. That is a state of things which is nothing more than camouflaged polygamy and polyandry. As time goes on, and if these Divorce Bills are multiplied, that state of things must prevail in this country, especially as the rising generations are less and less instructed in Christian ethics. I do not say that this sad condition of things will prevail in our lifetime because, whatever may be the case in the towns, I do not think there is any demand or popular wish in the country for an extension of the Divorce Law. I have never heard of the village divorce. People in our country villages are, I think, not so forward in their views as might be represented by those who support the extension of the Divorce Laws.
§ There is a consideration which I am sure cannot fail to have attracted your Lordships' attention. If a Bill like this passes it will be a direct stimulus to a woman—that is, to a bad and vicious woman—to suggest to her husband conditional adultery in order that she may gain what is called her freedom. We hear continually of women wishing to get their freedom; and men also, I suppose, wish to get freedom from their wives. If you pursue this matter in some portions of the Press you might imagine, from the word that are used, that the yoke of marriage is regarded as the most intolerable thing that was ever imposed upon any civilised community. I do not think the world has reached that stage of opinion yet.
§ The noble and learned Lord who moved this Bill has honoured me by referring to my endeavours to oppose these measures. I must remind your Lordships that ail these Bills are really directed to one 583 object, and that is to the extension of facilities for divorce. The noble and learned Lord said that I only came here to take part in opposition to these Divorce Bills. I may perhaps remind him that in one endeavour which I undertook in this House I was more successful than I have been in my Motions for the rejection of Bills designed to extend and facilitate divorce. There was a time when I directed my poor energies to bringing about the total abolition of the Accession Oath. It is a long time since we discussed that, and it is a very long time since I first had the honour of speaking in your Lordships' House. I see scarcely a single face now that I saw here when I had the honour of first entering your Lordships' House. All is changed, but there may be some of your Lordships who recollect the controversy to which I have referred. I felt justified in protesting against the continuance of that atrocious Statute, for it was nothing less than atrocious. When the noble and learned Lord says that I confine my poor endeavours to opposing Divorce Bills I would beg to call his attention to that which was a most direct and shocking persecution of the Catholic religion in this Empire—I mean the Statute which imposed upon the Sovereign when he or she met his or her first Parliament the duty of abjuring the Catholic religion not only in general but in specific terms of the most crude and violent language enumerating those doctrines which are of the greatest possible moment and importance to Catholics. The agitation was not in vain, because, although the measure which I proposed was not adopted by this House at once it was introduced into the Commons, passed there under Mr. Asquith's guidance, brought back here, and passed after brief discussion and against a very small opposition.
§ The noble and learned Lord also mentioned that it was somewhat futile on my part to attack these Divorce Bills because, the religious body to which I belong was a very small minority in the country. In great Britain there is no doubt it is, but if you take the Empire we number about thirteen millions, and that is a pretty large total. If you take the world in general we number three hundred millions, or, if you take a stricter view about these matters—because statistics 584 are to some extent conjecture—we number at the very lowest two hundred and fifty millions of mankind. Those millions unanimously believe in the sanctity and indissolubility of marriage, and they should be taken into account by any Parliament, however un-Catholic it may be, sitting in Europe. It is certainly a very great marvel that such a large body of men should be unanimous on so very important a doctrine. But it is, after all, in our view, a doctrine which is the foundation of all civilisation, because if you dissolve marriage you dissolve the family, and you put an end to all idea of property passing from father to son. You bring about something which existed before the principles of Christianity were first enunciated in the world.
§ It is urged that a Bill like this is only a mere extension of divorce, but it is by multiplying these extensions for divorce that you will lay siege to the citadel, and, finally, entirely obliterate in this country the idea of marriage. Sanctity of marriage holds good now in this country, and I believe the majority of the people are opposed to the facilitating of divorce. The tradition of the Catholic faith lingers still in this country, just as the perfume lingers in the vase from which the scented contents have long previously been poured out. One matter, I think, should be mentioned in a discussion on such a Bill as this. The supporters of this Bill continually refer to the New Testament. If there is one thing more painful than another it is to have the text of the Scriptures brought into discussions in Parliament. But the supporters of such measures as this have harped continually on one passage in St. Matthew's Gospel where Our Lord says "except for the cause of fornication," and those words have been taken by many in the sense of allowing divorce for one certain cause. I need hardly remind your Lordships that from the beginning the Catholic Church regards those words of Our Lord as referring only to separation. It teaches that for no reason whatsoever can a marriage which has been validly contracted be dissolved.
§ The noble and learned Lord is very insistent on carrying what he considers reform in this matter, and this is not the first time that I have ventured to cross swords with him. He will recollect, no doubt, that in one debate he turned round and, directing his attention to me, said that my position was impregnable 585 and that he simply could give me no answer because he had no answer to give. But ho added that the position of those who maintained that a marriage might be dissolved for one reason, and then opposed such measures as this, was incomprehensible. There the noble and learned Lord and myself agree. Such a position, which is the Protestant position, is incomprehensible. The contract of marriage is unbreakable and can admit of no exceptions whatever. If you do not believe in marriage at all, that is a very different matter and there is no more to be said. But this country goes half way, believes in marriage as a holy thing and then sets forth the grounds en which a marriage can be dissolved. I thank your Lordships for having listened to me for so long. I conclude by saying what I have said before, that Catholics have a divorce court, and in that court there sits a Judge to whom and beyond whom there is no appeal. And that judge is Death.
Leave out ("now") and at end insert ("this day six months").—(Lord Braye.)
§ THE EARL OF BIRKENHEAD
My Lords, the noble Lord who has just moved the rejection of this measure has laid your Lordships under two obligations-first, by the vivacity with which he has presented his case; and secondly, by the frankness with which he has made it plain that he is opposed to every single facility that has ever been granted in the direction of divorce, and, by logical sequence, to every new facility that may hereafter be proposed. It is necessary, for obvious reasons, to discount the advice, given by one whose opinions have jagged so far behind what are now the generally accepted views of the great majority of the citizens of this country. Nor, I confess, was I influenced even by the more persuasive illustrations which he employed. He said that a vicious wife might easily produce; untold mischiefs by suggesting to the husband the commission of adultery. That does not seem to me to open the door very widely for any rational or well considered alarm. If it had not occurred to a husband to commit adultery in his past life it is extremely unlikely that he would alter his habits perversely for the worse because a wife, described by the noble 586 Lord as "vicious," had suggested to him that he should vary his moral habits for the purpose of presenting her with facilities for divorce.
I am in favour of this Bill, as may be inferred from certain observations I have made in this House on cognate subjects. But the confess I do not like the piecemeal treatment of the subject, and when the noble and learned Lord makes an appeal to me, and one which I find it difficult to resist, I cannot avoid reminding him that he set me, an example of a very different kind a year or two ago. Lord Gorell then introduced a very logical and complete proposal in a Bill which is different from the present measure because it was well drafted and intelligible. Lord Gorell proposed in his Bill that the Report of the Minority of the Royal Commission, to which the right rev. Prelate the Archbishop of York was a signatory, should become law. That proposal would have included the substantial change which it is the object of the present Bill to bring about. But my noble and learned friend amended it so as to graft upon it the recommendations of the Majority Report, and I am not at all sure that it would not have been quite possible at that time, had it been policy, to carry the Minority Report of the Royal Commission through another place.
But my noble and learned friend makes this appeal to me. He says that this was speculative and that nobody could be quite certain that it would pass successfully through another place, while we do at least know that this Bill, after facing all the difficulties which confront the measures of private Members, has received the assent of the House of Commons. Do not, he says, when by passing it in this House we can obtain a fragment, however small, of the total reform—do not let us fling it on one side with contempt. I am not prepared to resist such an appeal, addressed to me by a noble and learned Lord whom I have followed so long upon this question and who has made such great exertions in a cause on behalf of which I am very strongly enlisted, but I should be unwilling that it should be supposed that I am assentient to the various sociological doctrines which my noble and learned friend laid down.
587 He dealt with very intimate topics on which I pretend to speak with no authority at all. Ho moved with easy mastery over a comparative examination of the temptation which is presented to each sex in certain matters and he was fortunate enough, if I understood him aright, to reach clearer conclusions than, I confess, I feel myself in a position either to adopt or to challenge. But the issue with which we are confronted is, after all, an extremely simple one—and I am dealing now with the merits and only with the merits of the proposal. That issue is this: If a husband has been unfaithful to his wife, should she or should she not be afforded the same remedy which the husband is afforded who complains of infidelity on the part of his wife? I have never seen an answer to this question. I have never seen how anybody who believes, not necessarily in political equality between the two sexes, but in fair dealing by the Legislature between the two sexes, could find an effective answer to those who argue on behalf of this reform. It is, no doubt, perfectly true that many wives would never avail themselves, except in aggravated cases of conjugal misconduct, of the remedy which is proposed in this Bill. That, of course, is not the point. The point is that if there is a woman who takes such a view of the marriage relationship and whose view so reacts upon her knowledge and experience of her own married life as to lead her to claim that there should be available for her the same remedy which is open to a man, I do not know how in the forum of justice or of fairness any legislative Chamber in the world could refuse this.
I shall certainly, therefore, support the proposal which is contained in this Bill, while at the same time deeply regretting the very limited nature of the proposal that is made. My noble and learned friend has told us that to amend this Bill is to destroy it, and I should be disposed to think that there was some real ground for his apprehension if any Amendment proposed dealt with a matter of real substance—if, for instance, the attempt to pass this Bill were made the means of introducing matters dealt with and recommended by the Majority Report of the Royal Commission. I can easily conceive, having regard to the vicissitudes of Parliamentary measures in 588 another place, that this might lead to the complete destruction of the Bill. But the noble and learned Lord really ought to consider how very badly this Bill is drafted. I doubt whether he will find it possible himself to carry it through Committee without making some attempt to amend it.
Let me call his attention to one or two points which occur to my mind. As the Bill was originally introduced in the House of Commons, Clause 1 provided that it should be lawful for any wife to present a petition praying that her marriage might be dissolved on the ground that her husband had been guilty of adultery; Clause 2 proceeded to repeal the words in Section 27 of the Matrimonial Causes Act, 1857, which made cruelty or desertion a necessary ingredient with adultery in a petition for dissolution of marriage by a wife; and Clause 3 directed that the Act should be construed with the Matrimonial Causes Acts, 1857 to 1919. That was a perfectly simple scheme, it was logical and it was complete, and if the Bill had been passed in that form, as it ought to have been passed with wise handling in another place, it would be lawful for a wife to petition for a decree a vinculo on the mere ground of adultery without cruelty or desertion, although the adultery had been committed before the passing of the Act. But an Amendment was made in the Commons by which Clause 1 was altered so as to provide that the act of adultery upon which the petition is to be founded must have been committed since the passing of this measure. I should have thought that the moral care which led to the passing of this Amendment was meticulous. It has certainly ignored some rather important drafting consequences, because Clauses 2 and 3 of the Bill have been left untouched. The result is both astonishing and inconvenient. The intention, I think, could not be misunderstood by a reasonable person, but the repeal of the words in Section 27 without any qualification introduces an unmistakable confusion which might easily be put right, and which ought to be put right, in any competent revising Chamber such as the House of Lords.
A more serious blemish upon the Bill as it stands is that it leaves unrepealed Section 5 of the Matrimonial Causes Act, 589 1884. This is the section which, in effect, created the statutory desertion. It provides, in effect, that where a wife has obtained a decree for restitution and the husband fails to comply with the decree and has been guilty of adultery, the wife may forthwith present a petition for divorce a vinculo, and the Courts may pronounce a decree for dissolution on the ground of adultery coupled with desertion. This is the section which has produced the crop of apparently affectionate letters addressed by the wife to the husband calling upon him to return. Your Lordships will recall that it is invariably for the sake of the children that these letters are written. They are really written, of course, as is notorious, merely for the purpose of establishing the statutory desertion which results upon a failure to reply to them. I understand that a facility in writing these letters and a sympathetic vein in their composition has afforded means of promotion to many ingenious and deserving solicitors' clerks. The section now becomes absolutely meaningless having regard to the changes which are made by this Bill. It is left upon the Statute Book without the slightest effect, and it can only add to any existing confusion. Since the wife is given the right to divorce on adultery alone, it should now, of course, be removed from the Statute Book, and I hope that in the Committee stage the noble and learned Lord—for after what he said I do not propose to take the responsibility of putting down any Amendments—will put down an Amendment to clear away this ludicrous anomaly, with the certainty that in another place it will not be the means of destroying the Bill.
I have another observation to make, and I will make it very briefly. In substance the Bill is based, as it must be based, on the alleged desire to obtain equality between the sexes. In the days before the vote had been conceded to the other sex, as far as I was able to understand these matters I always attempted to vote on behalf of that equality, because I thought that a special obligation was laid upon a Legislature which consisted solely of the male sex, to see that women had that equality. But equally, now that women do possess the vote, and are in a majority in this country, I am deeply concerned that there 590 should also be equality from the masculine point of view, and I fail to find the slightest sign of equality in these proposals. If the Bill be passed in its present form the situations of the husband and wife remain quite different in a number of material respects, extremely to the disadvantage of the sex to which the members of this House belong.
In the first place, under Section 28 of the Matrimonial Causes Act, 1857, the husband petitioner is bound to make the alleged adulterer a co-respondent to the petition, unless he is expressly excused by the Court from doing so, and the Court will not give such an excuse unless the circumstances of the case are altogether singular. No similar obligation is by this Bill placed on the wife. Consequently the guilty, or alleged guilty, third party in a wife's petition is not necessarily a co-respondent, and is not necessarily served with the citation. She may have no knowledge of the fact that adultery is alleged against her, and may only learn of the fact for the first time when she reads the proceedings reported in the newspapers. If the husband and wife are to be treated on the same footing-it is obvious that the wife ought to be under the same obligation to make the alleged guilty third party a party to the suit, and serve her with the citation, in the same way as the, husband now has to do.
In the second place, under the practice of the Ecclesiastical Courts, which by Section 22 of the Matrimonial Causes Act, 1857, the Probate, Divorce and Admiralty Division is bound to follow, the wife is entitled to alimony pendente lite from the service of the citation. It may be that the husband is impoverished. It may be that the wife is wealthy. Many men have had the good fortune to marry wealthy wives, or women well equipped with the world's goods, and I cannot: in the least see why the husband should not be entitled to alimony pendente lite when he has the fortune to be dealing with a guilty but wealthy wife. In the, third place the wife is entitled, whether she be a petitioner or respondent, to obtain from her husband provision or security for her costs. Sir Edward Marshall Hall, who is a learned and experienced counsel in these matters, recently addressed a letter to The Times in which he pointed out the inequality left by this Bill between 591 husband and wife. I have always thought that it was very bad fortune for the husband that, however uncalled for or wanton the proceedings of the wife, he nevertheless was compellable to defray the costs. If that rule is to be preserved, and I suppose it is a convenient course on the whole—it is, from the point of view of the legal profession—that somebody should pay the costs, I find it difficult to understand why in the case when the husband has no money but the guilty wife has money, she should not pay the husband's costs. I like the word alimony as applied to the male sex. It has been used too long in a specialised sense, and it will be very agreeable to see alimony being ordered in such a case.
But in addition to the power of the Court to grant alimony pendente lite, the Court has power to make orders for the permanent maintenance of the wife in certain circumstances. Section 1 of the Matrimonial Causes Act, 1907, states:—The court may … on any decree for dissolution or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money or such annual sum of money for any term not exceeding her life as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it may deem reasonable,and the husband may be ordered to make monthly or weekly payments, and there' are various provisions of the same kind. If a man has married a wealthy wife under the impression that by doing so, and on the condition of good behaviour, he has provided for himself comfortably for life, I do not in the least see why—if it be sound policy for Parliament to have decided, and observed for so many years, that the guilty husband possessing the world's goods should maintain the innocent wife—the obligation should not be made to apply in the opposite case of the guilty wife possessing this world's goods.
There is only one point on which I can discover any advantage. It is perhaps worth pointing out that under Section 33 of the Act of 1857 the husband may recover damages from the adulterous corespondent. That is the only respect in which under the law, if this Bill be carried, the husband has an advantage over the wife, because the wife is given no such remedy. As a further mark of 592 the inequality of the sexes in the eye of the Legislature, damages solely recovered by the husband may be directed by the Court to be settled for the benefit of the children or as a provision for the maintenance of the wife. So then if he has been struck this mortal blow in his domestic happiness, and if, availing himself of the means which the Legislature has provided for the soothing and comforting of his feelings, he has obtained these damages, they are liable to be torn away from him in order to be devoted to the maintenance and upkeep of his guilty wife.
There are many small points which it would be wearisome to set out at greater length on which the Bill treats husband and wife as on different footings, but I think I should have been wanting in my duty, on a matter to which I have given some little attention, if I had not made it plain to your Lordships that we should be deluding ourselves if we imagined that by passing this Bill we were restoring or creating equality in matters of divorce between the two sexes, and that it is equally clear that when the Bill becomes law, as I hope and believe it will, we shall undoubtedly find ourselves face to face with the necessity of passing more than one amending Bill before that complete equality between the sexes is restored which is the really logical justification for the proposals which are now engaging our attention.
Having placed at the disposal of my noble and learned friend, if they produce any impression upon his mind, these observations, which I believe to be well founded, upon the defects in the draftsmanship of the Bill, I shall, as I have indicated, leave it to him to decide whether or not the making of Amendments, which in some cases would be extremely trivial, but important in their consequences, would really produce the unfortunate consequences upon the Parliamentary fortunes of the Bill in another place which he anticipates. I cannot give to my noble and learned friend a greater tribute of the admiration with which I have watched his strenuous and consistent advocacy on behalf of these reforms than by saying that, somewhat against my better judgment, I have accepted his advice upon this matter.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I shall not 593 detain you many minutes upon the much debated subject which we are again considering to-night, and upon which I have myself spoken times without number during the last thirty years. I am not going to try, even if I were capable of doing it, to follow the noble and learned Lord who moved the Second Reading of the Bill into the large questions upon which he touched, although he admitted them to be not covered by the Bill, but which he elucidated from his own point of view with the forcible eloquence which we are all accustomed to admire. Nor shall I attempt to follow the noble and learned Earl who has just sat down into the detailed criticisms of a technical kind to which he thinks the measure as at present drafted is open. Whether the noble, and learned Lord, Lord Buckmaster, considers that to touch any one of those matters would be to imperil the course of the Bill hereafter is a point upon which I am quite unable to form a judgment.
My own words shall be perfectly simple. You have been reminded by Lord Buckmaster to-night of the debates of the last few years. We all recollect—some of us have good cause to recollect—the formidable effort made by the two noble and learned Lords sitting side by side, whose prowess in debate is, if possible, enhanced by the fact of their having been formerly occupants of the Woolsack, and the way in which they treated this great subject in successive Sessions. That endeavour of the twin brethren of debate to facilitate divorce by multiplying the grounds on which it can be claimed met the Parliamentary fate which I need not describe now, but which many other measures have met owing perhaps to lack of time, and perhaps to the failure of opportunity to deal with them adequately elsewhere. We had then the attempt which was made by Lord Gorell two years ago to get a measure passed to make effective those portions of the recommendations of the Royal Commission upon which the majority and minority of that Commission were in agreement. That measure was supported by those on whose behalf I speak, who are firmly opposed to any multiplication of the grounds of divorce. We supported it just because it was limited to such proposals as did not multiply the grounds upon which divorce could be claimed. It lost our support in the end by the introduction of other than the accepted changes, and it was frankly 594 admitted by some of those who spoke on that occasion that they would not support the Bill as it originally stood because it would so far remove the existing grievances that its enactment would take away the motive force behind proposals which they desired to advocate, but which we were opposing.
I recognise all the more fully, with those thoughts in mind, the action of Lord Buckmaster to-night in proposing to confine this Bill entirely to the purpose for which it was drafted, and, with or without the technical amendments which have been mentioned, to endeavour to pass it into law, in the large sense, as it stands. It now conies to us in a new way. It comes from the House of Commons after prolonged and careful debate. I have endeavoured to follow those debates, and sometimes found it very difficult. It was passed at length by an overwhelming majority—something like 250 or 260 against 26—and I am prepared to support the Bill as it stands, grateful for the fact that it has already received that recognition and support in another place.
My own position, and the position of those for whom in any sense I am allowed to speak, is not, I think, obscure, even if it be, in the eyes of some of my noble friends opposite, deplorable. In a sentence may I endeavour to state it afresh, although it is fairly well known? I believe, as we all do, in the lifelong obligation of a marriage contract, in the normal sense of lifelong obligation. But we all admit, and are bound to admit—even the noble Lord who moved the rejection of the Bill to-night would be bound to admit—that there are occasions upon which public interest seems to require that there should be some modification of the original contract. That may be effected by what you call sometimes, by a stretch of words, a decree of nullity—often stretched in some parts of the Church of Christ to a degree which approaches very nearly to what would ordinarily be called a straight divorce; or you may modify the original obligation by the separation a mensa et thoro, which is a limited form of divorce; or you may dissolve the marriage by the complete divorce decree, with which we are familiar. The moment you go into those questions you find the widest possible differences of opinion, and, I think, a perfectly clear-cut line of 595 demarcation between those who are interested in the subject as a whole. I vote for this measure simply because it confines itself entirely to a dissolution of marriage on the one specific ground of adultery, and nothing else. Had it gone on, as the previous Bill when modified by this House went on, to grant other causes, and to extend and multiply the grounds of divorce I should have felt bound to do all I could to prevent its becoming law.
What I feel about the obligation which rests upon us is this. The overwhelming majority of the members of your Lordships' House recognise the Christian obligation, which lies upon us, of the fundamental principles of our religious faith, as well as our social practice and usage. While we admit that there are in the country a great many others who do not regard the Christian sanction as that which they desire to respect, we feel that they are entitled to claim from us some recognition of their difficulties, and to make provision for their taking such steps as they find to be desirable for obtaining, under proper sanction, the dissolution of their marriage. We accept the fact, though we regret it, that a large number of those who do accept the Christian standard desire to adopt and even to enlarge that principle of divorce which we are admitting in the case of others. But we believe that there is one principle by which we must stand, and that principle is that the sole ground upon which a marriage can be dissolved is that to be found in the report given by St. Matthew of our Lord's own words, namely, that it should be on the ground of unfaithfulness to the marriage vow, in the sense of fornication or adultery alone.
That we know to be the principle which is in accord with the Christian faith. I believe it to be most firmly the principle which, on social grounds, is accepted by the people of this country as a whole. I do not in the least share the belief of the noble and learned Lord, Lord Buckmaster, that the people of this country are showing at this moment an inclination to change the law in those respects. All the evidence that I get is to the contrary effect. It is impossible to judge with certainty about a matter which is seldom put to the test in any way that would be effective, but everything that I know leads me to believe that, instead of the 596 country desiring more and more to have the Divorce Laws at this moment extended, the contrary is that which is desired both by the more educated and the less educated sections of the population. In limiting this Bill in the way in which it is limited, to a particular purpose in one specific degree—that is, to taking away the difference which is made between the two sexes as to their right to claim divorce—I believe that we are conforming not only to Christian principle but to the desires of the English people as a whole.
But we feel—at least I feel—that when we are brought face to face with the particular issue which is raised by this Bill we have no alternative at all. Large as is the obligation which the Marriage Law entails, there is in one sense a larger obligation, if there can be a larger obligation still, and that is the obligation to respect the law of God as being uniform for men and women as regards morality. If we once admit that the law of God, as interpreted by the best interpreters of it to human understanding through the centuries, has laid it down that there is no vital distinction in the obligation of morality between the man and the woman, we must, so far as I can see, support this Bill which removes an existing difference which the law as it stands does make between the two. It is on those grounds that I feel that I cannot possibly do otherwise than give my support to a measure limited, as it is, to that particular point.
I had not the advantage of hearing all that was said by the noble Lord who opposed the Bill, and the other speeches were not such as would be likely to deal with the point, but if it be said that the Bill is to be deprecated because it is likely to multiply the number of divorces through the country, I think we are entitled to look upon what has happened in Scotland as checking any such expectation. The question of Scotland has been brought before your Lordships many times in a somewhat different connection and with a somewhat different purpose from that which is before us. The noble and learned Lord opposite will easily take advantage of what I am saying, but it seems to me that in this particular matter we are entitled to say: "If you are afraid that the power given to a woman to divorce her husband for his unfaithfulness and his unfaithfulness alone will lead to all 597 kinds of mischief, you will not find your argument supported by a study of the history of the working of the Marriage Laws in Scotland during the last four centuries." I think that we are bound to say that. I do not think that there will be any increase at all, or, if there is any, it certainly will not be large, in consequence of this measure. At any rate we shall feel that we are acting upon the large and sound principles which underlie our whole purpose and intention in these things—that is, to follow the Christian rule and the Christian rule alone with regard to any exception which we allow from the obligation of the indissolubility of marriage, and besides following the Christian rule, I believe that we are doing that which accords with the general opinion of the English people as a whole.
My Lords, after the speech of the most rev. Primate I certainly do not intend to detain your Lordships for more than a few minutes. It was, I confess, with some sense of irony that I listened to the noble and learned Lord who moved the Second Heading when he begged your Lordships not to press Amendments to the Bill; because in moving the Matrimonial Causes Bill two years ago I, with such eloquence as I possessed, tried to impress that argument upon your Lordships. I think that I find some justification for the action of two years ago in the speech of the noble and learned Earl when he pointed out some of the defects of this Bill and almost complained that instead of having in front of him the Bill for which I was originally responsible, he had this Bill. Yet he, together with the noble and learned Viscount who then moved it, suceeded in changing that Bill of mine into a controversial measure.
At the same time one must recognise that the position is rather different. What would happen to any Bill coming from your Lordships' House to another place was problematical, even if it had remained on a non-controversial basis. That one, must recognise. It might not become law, though I noticed that the noble and learned Earl stated distinctly that in his opinion it would have done so. We are faced with a different, proposition with regard to this Bill. It has already been through all the storms and discussions of another place, and, therefore, we 598 can say with certainty that if it passes your Lordships' House it will become law. It is not a probability; it is a certainty. In spite of the limitations of the Bill, in spite of those defects to which the noble and learned Earl drew attention, I think that there are many of us who, having this question of reform very much at heart, would rather have something than nothing. If this Bill becomes law we shall at any rate be able to remove one reproach which has been so often levelled upon us on this subject—that we had a great Commission sitting for a long time, representative of many of the best minds and all the interests on this question, and that after a lapse of thirteen years there is nothing on the Statute Book to repay the work of that Commission. This, at any rate, will be a small but definite result and one very much wished for by the women of this country. Speaking for myself, I earnestly hope that the Bill will pass into law.
§ LORD PARMOOR
My Lords, I would like to say a word or two upon what I believe to be the views of the Anglican laity in regard to this Bill and what has been said in the course of the debate. For instance, I am perfectly sure that had the noble and learned Lord, Lord Buckmaster, sought to give legislative form to the opinions on divorce which he has expressed to your Lordships' House, the Anglican House of Laity, I think without any exception, would be in opposition to it. I cannot agree with what he said as to the possibility of a change coming about in favour of the wider views on divorce which he has more than once expressed. It is impossible, of course, as has been stated, to speak with too great a certainty upon a matter of this kind: but the opportunities that I have had of ascertaining public opinion upon this matter certainly lead me to a conclusion directly opposite to that which was expressed by the noble and learned Lord, Lord Buckmaster. If your Lordships have read the debates in another place on this present Bill—I have read the whole of them on Second Beading, in Committee, on the Report Stage, and on Third Reading—I think you will have come to the conclusion that the course of the debates there shows that in our representative Chamber, not only would there be no chance whatever of 599 passing a divorce Bill in the enlarged form, but that a great majority of opinion in that Chamber at the present time is opposed and has expressed its opposition to any Bill in extension of the proposal which is now before your Lordships.
I want to cay this also. I am a very strong supporter of the principle of this Bill as it stands. I have stated that view on former occasions in your Lordships' House, particularly in the case of the Bill to which the noble Lord, Lord Gorell, referred. I will state in a moment one or two reasons why I am in favour of this Bill. I was earnestly desirous that the Bill of Lord Gorell should be accepted in this House, and I believe that if it had been so accepted it would have passed into an Act of Parliament before this time. But what happened? I do not want to blame the noble and learned Lord, Lord Buckmaster, because he is so obviously sincere in his views upon these matters, and sincerity is a thing for which all of us have the greatest respect. But he introduced an Amendment into Lord Gorell's Bill, against the protest of Lord Gorell and of everyone who desired that that Bill should pass. On that occasion I was a strong supporter of the Bill in that limited form. We pointed out as clearly as we could—at least those of us did who held the views I am expressing, which are the views Lord Gorell himself expressed—that in our view the attempt to extend the grounds of divorce in a Bill which was properly limited to matters of the equality of the sexes, equality between rich and poor, and equal opportunities to all people within the limitations of the law, was ill-advised, because to extend a Bill of that kind into the wider sphere of very largely extended grounds for divorce meant that it had no chance whatever of legislative success. That proved to be the case.
May I make this further remark, because the noble and learned Lord is here and will correct me if I am wrong? It has always appeared to me that, although it was his hand which more than any other destroyed the Bill of the noble Lord, Lord Gorell, he has ever since that time agitated as though Anglican Churchmen had been the cause of continuing the inequality between the sexes which we were willing to have set right in the Bill that was defeated by his own action in 600 attempting to extend it to a very much larger sphere. I admit that the only reason which could induce me to support this Bill is that there is no extension whatever of the grounds for divorce. I do not want to repeat what the most reverend Primate has said, but surely there is all the difference between taking your stand on the one ground of adultery and extending the grounds for divorce so that in the opinion of many of us you ultimately come to this—that you may in substance dissolve marriage by mutual consent.
To show in a few words the difference that exists between my views and those of the noble and learned Lord who is advocating this Bill to your Lordships, I will quote what was said by President Roosevelt in connection with the highly unsatisfactory conditions that have arisen in American social life owing to the far too great facilities for divorce. I quote it merely because I want to adopt it as a short statement of my own opinion. He said:Divorce is a bane for any nation, a curse on society, and a menace to the home.That is my own belief. You would increase the menace to the home, you would increase the curse on society, and you would increase the bane on the nation, in my opinion, by attempting to follow that most unhappy American precedent regarding divorce facilities, and that is what it would come to if you had a great extension of divorce facilities in this country. Let us avoid that. The home is the central idea of Christian moral life. I give due weight to the views of the noble and learned Lord, but he must understand the depths of conviction of those who differ from him. He seems to me rather to treat those who differ from him as persons devoid either of feeling or of sense. That is a matter upon which we feel deeply, and we are not in the least likely to be moved from our attitude towards matters as they exist.
Let me criticise one other attitude which is adopted by the noble and learned Lord, Lord Buckmaster. He referred—as he has referred outside this House—to what is suffered by women owing to cruelty, drunkenness, insanity and things of that kind. No one doubts that. But that is not the issue between us. All those matters ought to be put right so that a 601 woman is protected within every limitation that the law can provide. So far as I know that is very nearly so at the present time. A woman cannot be compelled to live with a drunken husband who assaults her. She cannot be compelled to live with a man under those conditions of cruelty to which the noble and learned Lord referred. He tells your Lordships that you and other citizens do not understand our Divorce Laws. With submission, I do not think he helps us to understand them. The sole thing that he wants is the right to re-marry. In every other respect the woman is protected, and if she is not I would be one of the foremost to alter the law in any respect in which she is not. But the noble and learned Lord is under the fanatical idea that every woman wishes to re-marry. I am under a different impression. I think that every high-minded woman desires the law of divorce to be kept within its present narrow limits, and that wide social principle entirely overrides these exceptional instances, even if they exist at all.
The noble and learned Lord used an expression which, I think, showed how far he carries what I should designate his misapprehension of our law in these respects. If I understood him, he said a judicial separation was adulterous. You may say a great deal in criticism of judicial separation. I do not agree with all the criticisms, but I cannot conceive that the epithet adulterous can be applied to judicial separation at all. The whole object of judicial separation is to secure the woman against those difficulties which so oppress the outlook of the noble and learned Lord. You cannot apply a term of that kind to it. It is wholly inapplicable. It has nothing to do with it. I hope that when the existing law in regard to the protection of women is quoted it will be quoted in this sense that—except for the right to re-marry—in connection with every single incident of the kind to which the noble Lord has so often and so eloquently referred women have protection at the present time; or, if not, it ought to be given to them. I agree with what the most reverend Primate said, that if you are dealing with Christian principle—and I think that is the basis of discussion upon all marriage questions—equality of the sexes, so far as the grounds of divorce are concerned, is one 602 of the great Christian rules of our moral conduct. It is one of the great principles which have made Christianity a guiding light in the world, and I hope the teaching of Christianity in that respect not only will not be misapprehended, but that it may be carried further in every direction where it is necessary.
May I say, in conclusion, one word in reference to what was said by the noble and learned Earl, Lord Birkenhead? His criticism arose in this way. There is, apparently, a strong opinion in the House of Commons that a law of this kind should not be made retrospective. Your Lordships know very well that retrospective legislation is generally inadvisable, and so strong was the view against retrospective legislation that Major Entwistle, who was responsible for this Bill in another place, accepted an Amendment to the words of which the noble and learned Earl took so much objection. I do not think it is worth while to deal with the other criticism of the noble and learned Earl. The only matter dealt with in this Bill is equality of the sexes, that adultery of the husband should give the same right to the wife to divorce as adultery of the wife gives to the husband at present. No other equality is sought to be obtained in this measure. It is not for me to suggest what the noble and learned Earl should do on Committee stage, but although I have been criticising him, not unfairly I hope, I would urge him to keep the Bill to that one simple point and not be led off into these various suggested difficulties which are very much exaggerated but which certainly do not arise in connection with the single feature to which this Bill has been limited in the other House and to which I hope it will be limited in your Lordships' House. I hope this Bill may be passed so that a legitimate source of dissatisfaction in our matrimonial laws may be brought to an end.
My Lords, the truth about this Bill may really be said in one sentence. It is that it is a thoroughly bad and thoroughly inadequate Bill, but that it is practically impossible for anybody to oppose it. I listened to the eloquent speech of the noble and learned Lord who moved it, and he made out as good a case as he could knowing very well how inadequate a measure it is. I 603 was one of the few of your Lordships who had the advantage of hearing the greater part of the speech of the noble Lord who moved its rejection. I noticed that while the noble and learned Lord on the Front Bench took fifteen minutes to move the Second Reading it took the noble Lord from thirty-five to forty minutes to move its rejection, and during the whole of that time, although I listened with great care, I was unable to discover anything that could reasonably be described as an argument against the Bill. The noble Lord said frequently that he was opposed to divorce in all forms, that his Church was opposed to it, and that, therefore, he was opposed to any extension of the facilities for divorce, even such a facility as this. Having said that, he seemed to say very little more, for I could not hear that he quoted any grave social expediency against it, though we did hear that every advance, be it small or large, is another step downward, as he was careful to explain, ending in the morass of promiscuity.
That argument, as applied to this Bill, is ludicrous. The noble Lord spoke about the number of his co-religionists. I think he was a little rash when, oppressed as he was by the comparatively small numbers of Catholics in England, he alluded to the British Empire and gave large numbers, which he said were conjectural, for the whole of the world. The difficulty is that we are not legislating for Europe or for the British Empire. We are not legislating for Great Britain. We are legislating solely for England, and the noble Lord was a little rash to extend his observations so far, because, as your Lordships know, north of the Tweed we have a far more satisfactory Divorce Law. I will not refer to the rather useful admission made by the most rev. Primate on this subject beyond saying that, as I think he seemed to fear, that admission may come in useful in the future.
What are the advantages of this Bill? I think it has one or two perfectly definite advantages. It is fair to your Lordships to say, and it is probably true also, that this Bill will hardly add more than an insignificant number to the total number of divorces in the course of a year. You all know that in divorce nowadays a woman who is a petitioner requires by the present law some second cause of 604 divorce, which is always given her by the figment of the restitution action. It is a perfectly common form, and it is said that those Judges who sit in the Divorce-Court can tell in what solicitor's office the letter has been drawn. It would be well, I think, to get rid of this figment. You would save time and expense. In most cases wives themselves realise that it is a perfectly legal fiction and pay no attention to it; but there are some women who have been grossly outraged and insulted who do not like, and find it repugnant, to write a letter in apparently affectionate terms to their husbands asking them to return. I think you will do something to relieve such women by this Bill. That is one of the advantages of the Bill. Another is that it provides a sort of platform answer to a platform complaint about sex equality. I agree with the noble and learned Earl that whether it was needed or not any injustice that is done is generally done to the man. Some day we may remedy that, although I do not look forward with any reasonable prospect to the bait he held out of obtaining heavy damages from women.
The disadvantages of this Bill are sufficiently obvious. The most grave disadvantage is the danger that it may be said that a measure of divorce reform has been granted and, that having been granted, you will have to wait another ten or twenty years to see how it works before you get any further measure of reform. That is an argument against which all those who are interested in this subject—and your Lordships have shown your interest on previous occasions—ought to protest and not allow to pass sub silentio. This Bill has to be allowed to go through because it is almost impossible on any reasonable ground to oppose it. Personally I should prefer, had the Parliamentary scheme of things made it possible, to have amended this Bill as Lord Gorell's Bill was amended by putting in the provisions which your Lordships' House thought necessary to make it a suitable and proper instalment of divorce reform; then to have sent it back and if the House of Commons thought fit to disagree with your Lordships' Amendments not to have insisted upon them. But when so great a protagonist in this matter and so convinced a lighter as the noble and learned Earl finds himself bowing to the seductions of the noble and learned Lord I need hardly say that I shall not 605 attempt to put down any Amendments or make any suggestions which would lead to amendment. You Lordships must take it that this Bill ought to pass in its present form, but all those interested in this subject ought to say that they regard it as no instalment of reform, no real reform at all; as nothing but a paper change which, to the small extent I have indicated, is useful.
There is one point which I ask His Majesty's Government to consider. The noble and learned Earl pointed out real and actual faults in the drafting of this Bill—faults which will make it difficult for the Courts to consider cases that come before them, faults which will make its operation uncertain, faults which, if they remain, will lead to private litigants having to spend a considerable sum of money in order ultimately to come on appeal to your Lordships' House to elucidate what the law really is. If there be substance in Lord Birkenhead's complaint., I submit that as regards the difficulties in another place it is the duty of His Majesty's Government to allow this House to operate as a Statute-revising body, as a body which causes laws to be passed in the best and most intelligible form, and I suggest to His Majesty's Government that they ought to undertake that, as regards such Amendments, and such Amendments alone, as are needed to make it possible to construe this Bill and to understand it, they will themselves be responsible for seeing that they are brought to the notice of the House in another place, and accepted there. I do not think that your Lordships' House or His Majesty's Government would really be doing their duty if they passed into law a Bill containing obvious faults which could be put right quite easily in Committee stage of this House.
As to the general arguments which we have heard against divorce being granted at all, I will mention only the argument, which the noble Lord who brought it forward seemed to think had some relevance to the subject, that for every single one of the grievances which were mentioned a remedy was already provided, but without the right of remarriage, which he brushed aside as of no importance. But that is the crux of the whole matter. Indeed, the right to remarry is the only thing that matters. The objection is to 606 compelling men and women to live artificially celibate lives when their first unions have been unsuccessful. I need not pursue the general subject of divorce, nor do I propose to do so, but I do think it right to put before your Lordships my own view of the advantages and disadvantages of this Bill, and, interested as I have been in this subject, not to let this Bill pass without registering a protest against its being considered any instalment, let alone any sufficient instalment, of reform in the Divorce Laws.
THE EARL OF CRAWFORD
My Lords, my noble and learned friend Lord Birkenhead indicated that in his opinion there are errors of draftmanship in this Bill, or at any rate that he did not think the Bill perfect in its present form—perfect, that is, not in its general application to divorce but in so far as it deals with the actual problems which come within its clauses. Lord Birkenhead then proceeded with his great authority to say that there are three, if not four, manifest faults in the drafting of this Bill—oversights, no doubt, but none the less manifest faults. However, Lord Buckmaster, Lord Russell, Lord Birkenhead himself and, I rather think, the most rev. Primate all deprecated amending this Bill for fear of the results elsewhere. I hope your Lordships are not going to lay it down that a Bill is to leave this House in a condition which we know must produce litigation, which we know introduces obscurities in the law, which we know is not and cannot be a clear indication of what Parliament intends, just because we are afraid that the other House of Parliament will not appreciate the value of good drafting and sound legislation such as it is the pride of your Lordships' House to pass.
§ LORD BUCKMASTER
My Lords, I beg to thank all the noble Lords who have taken part in this debate so far as their speeches supported the Bill. That means, I must add, that I thank them only for a very small part of their observations. The greater part of the speeches which we have heard have been Second Reading speeches delivered against a Bill that has never been introduced at all. The most formidable part of the criticism has undoubtedly been the views which Lord Birkenhead expressed with regard to the drafting, and with 607 regard to the consequential Amendments which he thought ought to be introduced to make this Bill perfect.
I know exactly what has happened. In the Lord Chancellor's office there are always a number of extremely diligent people who are quite properly anxious to see that all legal procedure is put upon a sound and logical basis, and they are always prepared with alterations, which I do not doubt are necessary, in the general law for the purpose of giving effect to their views. As soon as a Bill like this comes by they say: "Here is an opportunity, a convenient wheelbarrow; let us put the whole of our stuff into that and send it through the House." These suggested Amendments have nothing whatever to do with the Bill. Such points as to whether alimony is to be granted, whether damages are to be paid, how they are to be applied, and so on, have nothing whatever to do with this Bill. They concern the general question of the procedure in the Divorce Court, and I agree thoroughly with my noble and learned friend Lord Birkenhead and with the diligent person, whoever he was, who prepared these observations for him, that this procedure does need reform. But this Bill does not set out to effect that reform, though I will support any noble Lord who is anxious to undertake the extremely unpalatable occupation of trying to reform legal procedure through legislation in your Lordships' House.
Coming to the Bill itself, the noble Earl, Lord Crawford, was so impressed with Lord Birkenhead's observations that he thought there was something in this Bill itself which will prevent its working. So far as I can see there is nothing of the kind. All that can be said is this. It is perfectly true that at the present moment a farce is enacted in our Courts which is a scandal and a disgrace to the administration of the law. A man and a woman agree to write, a letter pretending hatred of each other, though apart from the fact that they desire divorce they may be on very good terms, and this is held to be equivalent to desertion. It is claimed that the statement that this is equivalent to desertion affects the working of this Bill. It does nothing of the kind. This Bill enables a woman to get divorce if her husband has committed adultery after the passing of the Act, and this question of 608 the letters can be allowed to remain a fossil in the old Acts of Parliament to be looked up by curious people who examine the Statute Book in future days. It does not alter the efficacy of this Bill in the least.
I repeat what I said before, that those who are really anxious for the passage of this measure should not attempt its amendment. Lord Birkenhead pointed out that I attempted to amend the Bill which Lord Gorell introduced. He dealt with this point, if he will let me say so, with perfect courtesy and fairness. I did attempt to amend that Bill, and for the reasons which the most rev. Primate pointed out. I avowed them at the time. There was no concealment. I declined to let that Bill go through your Lordships' House, so far as I could stop it, as an expression of the opinion of this House as to what was needed in divorce reform. That was the question which confronted your Lordships then. But that is not the question to-day. The question before us to-day is the simple elementary question: Are you in favour of allowing women to get divorce on the same ground as men? This Bill does not deal with the wider questions, which will have to be dealt with later on, but which, in spite of strong temptation from all my combative instincts to deal with them now, I will refrain from touching.
I cannot pass by without comment two observations that were made by the noble Lord, Lord Parmoor. He complains of my criticism of the state of judicial separation. On this point I merely desire to repeat what I said before. I regard it as a monstrous, unnatural and adulterous position, and this is why I so regard it. If there can be anything which will tempt two people to commit adultery it must be the taking of a man and a woman, on the threshold of life, forcing them apart and forbidding either of them to marry again. What is the use of ignoring in this House the strength of powers which drive men and women in a position like that? The most reverend Primate and others know them well, and although he may feel that this condition may be justified by the traditions of his Church or on other grounds, he will never deny the temptation to which men and women are subjected when left in a position like that, utterly unable to marry again and establish a home for themselves, and yet, in each case, 609 probably, devoted to some man or woman with whom they desire to link their lives. I repeat everything I said, and I only wish there were language more forcible which I could use to express the feelings that I entertain with regard to that position. I have at least this advantage that you find, though not in the same language, the solemn statement of the Royal Commission which examined this question. Finally, I wish to add this, and I hope I may not be thought to be offensive. I wish Lord Parmoor would not imagine that all the high-minded women in this country are those who attend such functions as Church Congresses, and when he tells me that no high-minded woman in this country is in favour of extending the grounds of divorce I regret that Parliamentary
§ Resolved in the affirmative, and Amendment disagreed to accordingly.610
§ language and the bounds of courtesy prevent me from saying what I think.
§ LORD BUCKMASTER
I repeat again that the controversy is reduced within such narrow and anæmic limits that I am unable to answer the observation of my noble and learned friend as I should like to do. Finally, I have to say this alone, that it is a small and inadequate measure, but it is just, and I ask your Lordships to read it a second time.
§ On Question, Whether the word "now" shall stand part of the Motion?
§ Their Lordships divided:—Contents, 95; Not-Contents, 8.609
|Canterbury, L. Abp.||Hutchinson, V. (E. Donoughmore.)||Kintore, L. (E. Kintore.)|
|Salisbury, M. (L. President.)||Long, V.||Lawrence, L.|
|Novar, V.||Meldrum, L. (M. Huntley.)|
|Devonshire, D.||Peel, V.||Methuen, L.|
|Rutland, D.||Ullswater, V.||Muir Mackenzie, L.|
|Bath, M.||London, L. Bp.||Ormonde, L. (M. Ormonde.)|
|Dufferin and Ava, M.||Southwark, L. Bp.||Parmoor, L.|
|Lansdowne, M.||Penrhyn, L.|
|Normanby, M.||Armaghdale, L.||Pentland, L.|
|Biddulph, L.||Ponsonby, L. (E. Bessborough.)|
|Cromer, E. (L. Chamberlain.)||Blyth, L.|
|Blythswood, L.||Pontypridd, L.|
|Albemarle, E.||Buckmaster, L. [Teller.]||Queenborough, L.|
|Bradford, E.||Clwyd, L.||Raglan, L.|
|Chesterfield, E.||Crawshaw, L.||Redesdale, L.|
|Clarendon, E.||Dawson of Penn, L.||Rotherham, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Desart, L. (E. Desart.)||Rothschild, L.|
|Dynevor, L.||Roundway, L.|
|Fortescue, E.||Dunmore, L. (E. Dunmore.)||St. Audries, L.|
|Harewood, E.||Elphinstone, L.||Saltersford, L. (E. Courtown.)|
|Lindsey, E.||Ernle, L.|
|Lucan, E.||Fairfax of Cameron, L.||Sandhurst, L.|
|Malmesbury, E.||Farrer, L.||Somerleyton, L.|
|Mar and Kellie, E.||Gage, L. (V. Gage.)||Southborough, L.|
|Onslow, E.||Glenarthur, L.||Southwark, L.|
|Russell, E.||Gorell, L. [Teller.]||Strabolgi, L.|
|Strafford, E.||Grenfell, L.||Stuart of Wortley, L.|
|Harlech, L.||Sudley, L. (E. Arran.)|
|Bertie of Thame, V.||Harris, L.||Sumner, L.|
|Chelmsford, V.||Hemphill, L.||Swaythling, L.|
|Churchill, V.||Howard de Walden, L.||Terrington, L.|
|Grey of Fallodon, V.||Hylton, L.||Wargrave, L.|
|Hood, V.||Islington, L.||Wester Wemyss, L.|
|Joicey, L.||Wharton, L.|
|Argyll, D.||Morton, E.||Braye, L. [Teller.]|
|Mowbray, L. [Teller.]|
|Beauchamp, E.||FitzAlan of Derwent, V.||Shandon, L.|
§ Bill read 2a, and committed to a Committee of the Whole House.