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ART. VII.-1. A Review of the Divorce Bill of 1856, with Pro
positions for an Amendment of the Laws affecting Married Persons. Inscribed, by permission, to Lord Lyndhurst.
London : 1857. 2. A Bill intituled an Act to Amend the Law relating to Divorce
and Matrimonial Causes in England. Presented by the LORD
CHANCELLOR. Ordered to be printed 11th May 1857. 3. The Same, as amended June 25, 1857. 4. Hansard : Debates. Second Session of 1857.
Of all the subjects which have engaged the attention of the legislature during the session of Parliament now wearing to a close, the one which has created the largest amount of general interest is the amendment of the laws relating to marriage and divorce. It is a matter which almost every one understands; in which almost every one is concerned; of which almost every one has something to say. Society has long been convinced of the truth of the opening words of the preamble of the Lord Chancellor's bill, “that it is expedient to amend the law relating to divorce." They who were content with the law as it stood at the commencement of 1857, were the exceptional few. The public voice had long declared that “something must be done." But here, perhaps, the general harmony begins and ends : for when we come to inquire what that "something” should be, we find that there is little concord of opinion.
We cannot be surprised at this. The question is a very delicate and a very difficult one. It is beset with many perplexities. It cannot be discussed without some doubts and misgivings in the writer's mind, and some reservations and qualifications in his expressions of opinion. Two men, propounding widely different views of so complicated a question, may both be right, as far as they go. For when we have determined in our own minds what is best to be done, we are forced irresistibly upon the conclusion, that we have only had a choice of evils. We know and acknowledge, at every step of the inquiry, how much there is to be said upon the other side.
There is good reason in this why we should discuss the subject rather in a suggestive than in an authoritative strain. It is the very last on which any writer is entitled to dogmatise. We have seen some of the best and wisest men in the country differing widely in their views of the question, both in its religious and its social aspects, without any personal or party incentives to the support of one side or the other. We do not doubt that State of the Existing Law.
163 all who have spoken or written on the subject, have been moved by deep convictions of the truth of their utterances, and a pervading sense of the solemnity of the question and the magnitude of the interests it involves. And we ask that the toleration which we extend to others may be extended to us, by those who have hitherto dissented from the views which we are about to express, and will not, after a patient perusal of our remarks, consent to adopt our opinions.
The subject, viewed in its social and in its legal aspects, divides itself into two branches;-one relating to marriage itself, and the dissolution of marriage; the other relating to the legal processes necessary to the attainment of divorce. But the sprays or offshoots of these branches interlace themselves with each other, and we cannot easily discuss the one division of the subject without sometimes adverting to the other.
In England, there is no law by which a marriage can be dissolved. Marriages are dissolved; but a special Act of Parliament is necessary to legalise each dissolution. Such Acts of Parliament, it need not be said, are obtainable only by the rich. They cannot be obtained until an action has been brought, and damages decreed for criminal conversation. The process, therefore, is tedious, costly, and in most cases revolting. The new bill proposes to remedy this. We do not say that it will render divorce easy or cheap; but it will make it easier and cheaper. It will not place the rich and the poor on an equality; but it will place them more on an equality than before. It will not place the man and the woman on an equality; but it will place them, too, more on an equality than before. It will not entirely assimilate the law on the south to what it is on the north of the Tweed; but it will diminish the very wide difference at present existing between the practice of the two parts of the island.
We have, on former occasions, emphatically expressed our opinions in this Journal relative to the existing, but now condemned, laws of marriage and divorce in England; and we have reason to believe that we have not written in vain. Never, certainly, at any former period of our social history has there been so strong a disposition to consider, in a fair and candid spirit, the position of women with reference to these laws, as has been evinced during the last two or three years. Men have roused themselves to the necessity of doing something to remove what has been long felt to be a reproach to our civilization ; and sentence of death is now written down against the worst parts of a system, which inflicted such cruel injustice on the weaker half of mankind. There were some wrongs so patent, so abhorrent to reason, and altogether so cruel and iniquitous, that, in the middle of the nineteenth century, to look then in the free, and to state thein openly, seemed to be sufficient to secure instant alleviation. For example, it was almost incredible that a man should be suffered to desert his wife, to live in adultery with another woman; and to assert, during the time of separation, a marital right to possess himself, not only of the property acquired by gift or bequest from her family or friends, but the proceeds also of her own industry. So monstrous, indeed, was this, that it was certain such a scandal could not long survive the torrent of indignation which had been poured upon it, even if no more general measure for the reform of the laws of marriage were contemplated by the Legislature. It was possible to legislate for the discontinuance of such an evil as a separate and integral reform; and if nothing else had been done, we should, doubtless, have accomplished this, and been thankful for such an instalment. But the bill before us embraces this. Indeed, any Act for the amendment of the laws relating to marriage and divorce would be most imperfect, if it did not secure to women so circumstanced a right to the uninterrupted enjoyment of their own property. The Lord Chancellor's bill gives to this provision a foremost place; and we shall be readily believed when we say, that there is no part of the bill regarding which there is so little diversity of opinion.
The bill, after constituting a “Court of Marriage and Divorce," to the nature and functions of which we shall presently advert, enacted, that any wife might present a petition to the said Court, praying for a divorce à mensâ et thoro, on the ground that she has been deserted by her husband, and that such desertion has continued, without reasonable excuse, for two years or upwards;" and that the Court might decree a divorce à mensâ et thoro, and make an order for alimony, if it should seem just to do so. The bill then proceeded as follows:
« XVII. In every case of a divorce à mensâ et thoro, the wife shall, from the date of the sentence, and while the separation shall continue, be considered as a feme sole with respect to property of every description which she may afterwards acquire, or which may come to or devolve upon her; and such property may be disposed of by her in all respects as a feme sole; or on her decease, the same shall, in case she shall die intestate, so as the same would have done if her husband had been dead; provided, that if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place, shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband while separate."
It was only right that, in such a case, the necessary responsibility of the husband should entirely cease, except when he had Case of the Poor Woman.
failed to pay the alimony decreed by the Court. No woman will complain of this; but every woman will recognise in the above provision, what, verbally at least, affords redress for the cruel wrong under which her sex has so long been suffering. But that it should meet the case fully and completely, in fact as well as in word, it was necessary to place the preliminary divorce à mensä et thoro within the reach of the humblest petitioner. Perhaps the most cruel cases of the assertion of the marital right to property, acquired by the woman during separation, occur in humble life. Desertion is more frequent, self-support is more common, among the poorer classes. In such a condition of life the man has more temptation to lay a violent hand on the earnings of the woman, and fewer restraints, physical and moral, to check the consummation of his selfishness and injustice.
“The fear of shame 's a hangman's whip,
To keep the wretch in order.” But what is shameful in one condition, is scarcely held to be so in another. Moreover, a woman in humble life can seldom place herself beyond the reach of her offending husband. She can rarely select her place of abode, or fence herself around with any obstacles to intrusion. She is, in most cases, despoiled, without defence, and without appeal. She has not a host of friends to declare her wrongs; nor can she move the world to tears by an eloquent pamphlet. It is the poor sempstress, the poor laundress, the domestic servant, who most needs that her earnings should be secured to her. If the new Act accomplishes this, it will really be a blessing to the people of England. But if the process by which legal separation is to be obtained, and the woman restored to the privileges of the feme sole, be a costly one, practically the great mass of the people will be in the same condition as before. The process under the new system must necessarily, as we have said, be less costly than under the old, in all cases of divorce à vinculo matrimonii; and we do not doubt that the new Court of Marriage and Divorce will entail fewer burdens on suitors than the Ecclesiastical Courts, under the existing state of things, in cases of mere conjugal separation. But the object of the new bill would have been but imperfectly obtained, if the desired cheapness had not been rendered not merely a comparative cheapness, but one which would place the justice of which we are now speaking within the reach of the poorest woman.
But what is this new Court? It is to be called “ The Court of Marriage and Divorce.” It is to exercise the jurisdiction 16
now vested in, or exercisable by, any ecclesiastical court or person in England, in respect of divorces à mensâ et thoro, suits of nullity of marriage, suits for restitution of conjugal rights, and in all causes, suits, and matters matrimonial, except in respect of marriage licenses.” The judges of this Court are to be found in the persons of the Lord Chancellor, the Lords Chief Justices of the Queen's Bench and Common Pleas, the Chief Baron of the Exchequer, and the Judge of Her Majesty's Court of Probate, constituted by any act of the present session;" the said functionary last named being the Judge Ordinary of the Court, with full authority alone, or with one or more of the other judges, to hear all petitions for separation à mensâ et thoro. "The exclusive right of practising in all cases where the Judge Ordinary has jurisdiction, without the concurrence of the other judges, is to be vested in the advocates and proctors of the ecclesiastical courts; the principles and rules acted upon being, as nearly as may be, conformable with the principles and rules on which the ecclesiastical courts have heretofore acted and granted relief to suitors. There is nothing on the face of this to render the process by which separation and consequent protection are obtainable, less costly than under the old system. The cost of a separation à mensâ et thoro in the ecclesiastical courts, may have ranged between £50 and £500. It need not be said that even this lower amount placed the luxury of separation beyond the reach of a poor woman, living by the labour of her hands. But in such a case she had the privilege of suing in formâ pauperis ; and we presume that this is extended to her under the old system, care of course being taken to guard the courts against the introduction of frivolous suits. But it is not on this account the less essential that the procedure should be simple and uncostly; for how many there are who, although not of the class to which the privilege of suing in formâ pauperis is granted, would be practically debarred from obtaining the protection of the Court, if the process were at all an expensive one.
Considerations such as these appear to have had due weight with the House of Lords. The Chancellor's bill did not sufficiently simplify the process, whereby women, whose husbands have ceased to support them, may secure for themselves the right of property in their own earnings. Indeed, it was felt that the mere transfer of the powers of the Ecclesiastical to the Judge Ordinary of the Court of Divorce, would leave matters very much in their old cumbrous state. Some manifest improvements were, therefore, introduced into the bill. In the first place, the antiquated technical nomenclature—the absurd and, to the majority, unintelligible Latin jargon of the Ecclesiastical Courts, was swept away. The
Lords abolished divorce à mensa et thoro, by introducing the following clause into the bill :
“ VII. No decree shall hereafter be made for a divorce à mensá et thoro; but in all cases in which a decree for a divorce à mensá et thoro