The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, NOVEMBER 5, 1853.

STATE OF LAW REFORM.

GOVERNMENT

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ing of the Right Hon. Mr. Walpole, Sir Geo. Rose, Mr. Swanston, Q. C., Mr. Commissioner Hill, Mr. Bacon, Q. C., Mr. ComCOMMISSIONS AND COM-missioner Holroyd, Mr. E. Cooke, Barrister

MITTEES.

at-Law, and Mr. Glyn; with Mr. F. S. Reilly, Barrister-at-Law, Secretary.

2. The County Court Commission, at the head of which is the Master of the Rolls, and the other Commissioners are:Mr. Justice Erle, Mr. Justice Crompton, the Hon. Mr. Fitzroy, Mr. Keating, Q. C., Mr. Koe, Q. C., Mr. Serjeant Dowling, Mr. J. Pitt Taylor, and Mr. Mullings, M. P.; with Mr. Henry Nicoll, of the Treasury, Secretary.

On the commencement of another Legal Year and a new Volume of our Work, it may be useful to take a brief review of the various proposed Law Reforms now under the consideration of the Profession and the Public. So many alterations, if not amendments, have already taken place, either to modify or destroy the Law and Practice which formerly prevailed, and, in the haste to alter, so much mischief has resulted, and the work has been so imperfectly done, that 3. The Chancery Commission has been the whole system must now be subjected to renewed, including an inquiry into the a searching revision. Probably some things Ecclesiastical Courts. The Commissioners which have been abolished must be re- are, the Master of the Rolls, Lord Justice stored, some reforms must be carried Turner, Vice-Chancellor Kindersley, Sir further, or greater evils will arise than John Dodson, the Right Hon. S. Lushingthose attempted to be removed, and a ton, Mr. Justice Crompton, the Right Hon. systematic plan must be carefully settled Sir James Graham, the Right Hon. Mr. for future guidance. Henley, Sir J. D. Harding, Vice-Chancellor This is no individual opinion, nor the Wood, Sir R. Bethell, Q. C. (Solicitorsentiment of a few only, but has been General), Mr. Rolt, Q. C., and Mr. W. M. adopted and acted upon by the Govern- James, Barrister-at-Law; with Mr. Chapment itself, and with the general concur- man Barber, Secretary. rence of leading men of all parties. There are no less than seven Commissions now in existence for the purpose of inquiring into all the large and comprehensive branches of the Law, and to report on the amendment thereof. Let it be recollected that these inquiries and reports are to be made after the self-elected, or amateur Law Reformers have been actively at work for 25 years. Let us hope that, under the guidance of the several bodies of Commissioners, the course of future legislation will be more complete and satisfactory.

The new Commissions, as our readers are aware, are as follow:

4. The Commission on the Superior Courts of Common Law is also in full force. The second report on Common Law Procedure, published before the end of the Session, has already been acted upon, by the preparation of a bill for carrying it into effect next Session. The Commissioners are, the Chief Justice of the Cominon Pleas, Mr. Baron Martin, the Attorney-General, Master Walton, Mr. Bramwell, Q. C., and Mr. J. S. Willes, Barrister-at-Law; with Mr. H. T. Holland, Barrister-at-Law, Se

cretary.

5. The Real Property Commission, though not now in action, cannot be considered as

1. The Bankruptcy Commission, consist- defunct. They were Lord Langdale, Lord

VOL. XLVII.

No. 1,339.

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2 State of Law Reform.—The Divorce Commission-Proposed Alterations in the Law.

Beaumont, Mr. Humphrey (afterwards one of the Masters in Chancery), Mr. Bellenden Ker, Mr. Coulson, Q. C., and Mr. Frere and Mr. Broderip, Solicitors. The Bills for the General Register of Deeds, and other real property schemes, were referred to a Select Committee of the House of Commons, whose report was unfavourable to the Government plan.

HAVING explained and elucidated the Law of Divorce as it at present exists in England, her Majesty's Commissioners refer in their report to the alterations which are deemed expedient. In relation to this branch of the subject, four points are con6. Then there is the Divorce Commission, sidered:-1st, the cases for which divorce consisting of Lord Campbell, Lord Beau- shall be granted; 2ndly, the grounds of mont, Lord Redesdale, Sir S. Lushington, defence which should operate as a bar; Mr. Walpole, Vice-Chancellor Wood, and 3rdly, the terms upon which divorces Mr. E. P. Bouverie, with Mr. Macqueen, should be granted, and the legal results the Secretary; and they have recently made their report, recommending very important alterations in the Law.

The Divorce Commission-Proposed Alterations in the Law.

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ask judicial relief, if not by a sentence of changed his opinion, and moved the second divorce à mensa et thoro, at least by an reading of that lady's bill, saying that he saw award of alimony for maintenance where no reason why a woman was not as much enthe desertion has continued for a period to titled to sue for divorce as a man. But in this be limited by the Legislature." The conopinion he was overruled by Lord Chancellor clusion to which the Commissioners arrive case extraordinary in its enormity to entitle the Brougham, who remarked, that it should be a therefore is, that divorce à mensa et thoro female to such relief. He begged their Lordshould be allowed, as it now is, for adultery ships would look at such a proceeding as this: and cruelty, to the wife as well as the hus- every man who desired to get rid of his wife, band, and that desertion should entitle the has only to go and seek a mistress, and as the wife to a remedy by way of alimony; but natural consequence of such conduct to desert they are of opinion, that divorces à vinculo his wife, and therefore he instantly drives her should not be extended beyond cases of obtained, and his purpose is secured. to an application to the House; a divorce is adultery; and after having described adul- thought the best protection which could be imHe tery as an "utter destruction" of the mar- parted to the bonds of matrimony, was to abide riage contract, which is "mutual and reci-by our ancient practice with respect to such procal," they recommend, that the relief by cases. Parliament could afford the wife no a divorce à vinculo should not be granted to remedy without at the same time setting the the wife upon the ground of adultery, but husband free from those shackles which it was only to the husband, and that, as a general conclusion, for it is to be remembered, accordhis object to get rid of. We concur in the rule, in cases of aggravated enormity, the ing to the just observation of Dr. Johnson, remedy for the injured wife should be left, that the difference between the adultery of the as at present, for the Legislature. husband and the adultery of the wife (socially speaking) is boundless. It is on this account that a divorce à vinculo has been allowed in one case and not in the other; and if it were lead to all the evils of voluntary agreement for allowed in both cases alike, we fear it would with the ill-disposed, would not be lost; should terminating the union. Such an opportunity, it be conceded, there is reason to apprehend that in many instances the husband would form a second connexion, in order to get rid of the first. According to the testimony of Chancellor Kent, it has produced that result in some of the States of America. In cases of incest, bigamy, or the like, it might be proper to give the wife the power to institute a suit for a divorce à rinculo matrimonii, but as a general rule, and in all other cases of aggravated enormity which may possibly arise but cannot be defined, we think that the remedy should be left for the Legislature, and for that alone.”

The grounds upon which the Commissioners have come to a conclusion so inconsistent and at variance with principle, are elaborately stated in the following paragraph, which, although it cannot be said to contain anything new in fact or argument, probably embodies all that can be said in support of the proposition, that the innocent wife may be justly deprived of the relief afforded to the husband when he is innocent and the wife delinquent :

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"Whether divorces à vinculo should be granted at the suit of the wife with the same facilities as at the suit of the husband, is a question (says the report) which has elicited much difference of opinion. There are four instances in which wives have succeeded in procuring divorces ù vinculo from Parliament: but in these the husbands were guilty of other offences besides adultery, which were held! As to the defences that should operate as either to preclude or absolve the complainants a bar to a suit for divorce, the Commisfrom further cohabitation. In two the adultery sioners consider that recrimination, connivwas incestuous. In the third there was pro-ance, and condonation should still, if estafligacy, deceit, abandonment, and the grossest blished, be considered a legal answer, but injury done to the woman which villany could apparently as if conscious that they had inflict. In the fourth, there was bigamy. With these exceptions, there is no example of a di- hardly done the "weaker vessel" justice vorce à vinculo being granted by Parliament at when they recommend that the wife should the suit of the woman. The applications which not be entitled to the same complete relief have been made on the ground of aduitery, and as the husband, they suggest, that when that alone, have always failed. In Mrs. Teush's the husband has been guilty of gross case, Lord Eldon observed, that he never cruelty, and wilful desertion, he should not recollected a more favourable representation be entitled to a decree for separation or given of any woman, but yet, on general grounds divorce, even when the wife fails in fiof public morality, he felt it his painful duty to give a negative to the original motion, that delity. the Bill should be read a second time. In Mrs.

Moffatt's case, however, he seems to have

Art. 40, pages 15 and 16.

With regard to the terms upon which divorces should be granted, and the legal consequences resulting from them, it is not suggested that any alteration should be

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The Divorce Commission-Proposed Alterations in the Law.

made in the law, as respects divorces à mensa et thoro, and as regards divorces à vinculo, whilst they assert as a general principle, that the future rights, interests, obligations, and liabilities, both of husband and wife, should cease altogether with the sentence for divorce, the Commissioners content themselves by suggesting, that the judicial tribunal to be created should be clothed with ample authority to secure such provision for the wife and children as may be just, and to decide as to the custody, guardianship, and education of the children.

vinculo, the guilty party should be prohibited from intermarrying with the partner of his or her guilt, as is now the law in Scotland, the Commissioners refrain from deciding; and they seem to have considered it beyond the scope of their inquiry to consider, whether the conflict of laws prevailing in the north and south of Great Britain-a conflict producing consequences disgraceful to civilization and a scandal to all law-might not, and should not, without further delay be got rid of? A reference to the list of decrees in the Scotch Courts proves incontestibly, that English persons, wholly unThe main improvement recommended by connected with Scotland, have gone to Scotthe Commissioners is, that instead of resort- land for the purpose of being divorced, and ing to a Court of Law for damages, against by the opinion of the Scotch Courts at least, the adulterer, an Ecclesiastical Court for a a divorce à vinculo of such persons, regudivorce à mensa et thoro, and the Imperial larly pronounced in Scotland, is sufficient Parliament for a dissolving statute, a tribu- to dissolve an English marriage. As before nal should be established, which might ad- noticed, by the Scotch Law, the party diminister complete justice without having vorced by reason of adultery is prohibited recourse to extraneous aid, subject never from intermarrying with the person with theless to an appeal in the event of a mis- whom he or she is declared by the sencarriage. They recommend, that the evi- tence of divorce to have committed the dence should be oral and taken in the crime. The parties thus interdicted from manner prescribed by Stat. 15 & 16 Vict. marrying in Scotland, may, and frequently c. 86, or in other words, according to the have married in England, but if such an new practice in Chancery; and that the English marriage were to come into quesJudge should have the power of calling for tion before a Scotch Court, it would not be the production of witnesses who might in regarded as a valid marriage, and the issue his opinion throw light upon the cause, and of such marriage would not be legitimate, also of examining the parties themselves. nor have the right of succession. Parties They propose to adhere to the rule, that divorced in Scotland, therefore, may still confession per se, is not to be sufficient proof be considered as married in England, of conjugal infidelity; but when collateral and parties married in England would be circumstances are established, so as to lay regarded as unmarried persons in Scota foundation for the reception of evidence by land. confession, it should be received in confirmation.

Assuming that the power of granting divorces à vinculo should not remain with Parliament, the Commissioners conceive, that there are well-founded objections to the transfer of this power to any of the existing tribunals, they consider that the entire dissolution of the marriage bond ought not to be left to the unaided decision of a single Judge, and recommend a new tribunal to be constituted, consisting of a Judge of the Court of Chancery, a Common Law Judge, and a Judge of the Ecclesiastical Court, that all questions of divorce should be referred to this tribunal, and that there should be no appeal except to the House of Lords.

Upon two questions of the highest importance, intimately connected with the subject of inquiry, the report indicates no opinion. Whether, in the case of a divorce à

Surely, if the Law of Divorce is to be altered and placed upon a more rational footing, anomalies so startling should not be permitted to continue. It may also be hoped, that before the terms in which the Legislature interferes are definitively resolved upon, more consideration will be given to the inquiry, whether it is expedient to retain a proceeding so impotent and ineffective as divorce à mensa et thoro, and whether the interests of society imperatively require the violation of principle involved in the doctrine, that in cases of adultery, the same remedy should not be afforded to both husband and wife. Upon both these points the report now under consideration must be regarded as both unsatisfactory and inconclusive.