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from her conjugal duty, or whether she was at the time of such adul. [ #378 ]
tery cohabiting *with him, and under the protection and
authority of him as her husband.(r) There is a subsequent order that no bill grounded on a petition to the house of lords to dissolve a marriage for the cause of adultery, and to enable the petitioner to marry again, shall be received by that house unless a provision be inserted in such bill, that it shall not be lawful for the person whose marriage with the petitioner shall be dissolved, to intermarry with any offending party on account of whose aduliery with such
person it shall be therein enacted that such marriage shall be so dissolved; provided that if at the time of exhibiting the said bill such offending party or parties shall be dead, such provision as aforesaid shall not be inserted in such bill.(s)
The house of lords, in matters of divorce, do not sit merely in a judicial capacity, tied down by certain rules, but as a legislative body, which has full power to act according to its own wisdom, so that their acts are not to be considered as mere forensic acts but as acts of the legislature (1)
Whether a husband morose, severe, inattentive, or negligent, would be entitled to a special legislative interference dissolving the marriage, and enabling him to marry again, is quite a different question, and rests on different principles than those on which a divorce a mensa et thoro is granted.(u)
Order of the House of Commons as to Divorce Bills.]-That before any bill of divorce for adultery do pass this house, evidence be given before the committee to whom the said bill shall be committed, that an action for damages has been brought in one of his majesty's courts of record at Westminster, or in any one of his majesty's courts of record in Dublin, against the persons supposed to have been guilty of adultery, and judgment for the plaintiff had thereupon; or suf. ficient cause be shown to the said committee why such action was not brought, or such judgment was not obtained. (v) [ *379 ]
* Mode of proceeding on Divorce Bills.]—Divorce bills
must originate in the house of lords by petition presented to the house, signed by the party applying for ihe divorce. With the petition is delivered upon oath at the bar of the house an official copy of the proceedings, and of a definitive sentence of divorce a mensa et thoro in the ecclesiastical court, at the suit of the party desirous of presenting his or her petition to the house. The allegations of the petition will of course depend upon the circumstances of the case. The following are usual. The marriage, with its date, the settlement on the occasion of the marriage, the cohabitation of the petitioner and his wife, and the issue of the marriage (if
(r) 27 March, 1798, Lords' Journ. vol. xii. (t) i Hagg. Cons. R. 132. p. 517; se Hans. Parl. Deb. vol. xxxiii. p. (u) 3 Hugg. Eccl. R. 73. 1309.
(o) Journals of Cominons, 30 June, 1801; (8) Lords' Journ. 2 May, 1809, vol, xlvii. Standing Orders of the House of Commons p. 217; see the debate on this order in House relating to Private Bills, ordered by the of Commons, 1805, Parl. Deb. vol. xiv. pp. House of Commons to be printed, 15 Aug. 6124615. The clause required by the 1838, p. 21. It was resolved by the House above order is invariably struck out in the of Commons, 12 Feb. 1840, " that all divorce committee, Hans. Parl. Deb. vol. xxiii. N. S. bills be referred, during the present session,
to a select committee of nine members."
any), the detection of the criminal intercourse, action brought, and judgment recovered; the proceedings in the Consistory Court and definitive sentence of divorce from bed and board there obtained, together with the loss of the petitioner's comforts of matrimony and liability to have a spurious issue imposed upon him. The petition must be signed by the party suing for the divorce, unless the petitioner should be abroad at the outset of the proceedings, when he may appoint an attorney to sign the petition for him. When leave is given to bring in the bill, it may be presented and read a first time, and ordered to be read a second time the next day fortnight. And orders may be made for certain witnesses to attend the house on the reading. (x)
When the bill'is appointed to be read a second time on a future day, the usual orders will be made, and may be procured, with an office copy of the bill from the parliament office. Copies of the orders, as well as a copy of the bill examined with the house copy, must be served on the party against whom the divorce is sued for.
The usual orders are that notice be affixed on the doors of the house of lords, that the lords be summoned, and that the petitioner may be heard by his counsel on the second reading to support the allegations of the bill; that, together *with the examined copy of the bill, notice be given of the second reading to the party
[ *380 ] against whom the divorce is sued, and that he or she may be at liberty to be heard by counsel against the bill.
Where the party, upon whom the office copy of the petition, bill, &c., is ordered to be served, lives abroad or absconds or secretes himself to evade the service, application must be made to the house, praying that leaving a copy of the bill and order with the party's agent, or at his last usual place of abode, may be deemed good service. And on proof of the facts stated in such petition upon oath, at the bar of the house, the prayer will usually be granted. On the second reading of the bill, the attendance of the petitioner is required in order to his being examined at the bar, (if the house think fit,) according to the standing order of 1798.(2)
When a petition has been presented by the attorney of a person abroad, and the usual orders made for the attendance of the petitioner on this second reading, it will be necessary to present a petition, stating that the party suing for the divorce is resident abroad, and praying that his attendance may be dispensed with.
On the day appointed for the second reading, after proving the service of the office copy, and orders upon the party and agent, as the case may be, the bill will be read a second time, and counsel beard in support of it, and witnesses called to prove the state of the family, the act of adultery, and other allegations in the preamble of the bill. The marriage must be proved by the production of a copy of the register, and satisfactory proof be given of the identity of the parties. If the marriage was solemnized abroad, it must be shown by persons acquainted with the law and custom of the place to have been a
(2) 1 Dwarris on Stat. 360, 361.
(2) Ante, p. 377.
legal marriage according to the law of the place where it was celebrated.(y)
The settlement, if any is recited in the bill, will be proved by the subscribing witness. The definitive sentence of divorce, before delivered at the bar of the house, must now be proved and read. [ *381 ]
*Although there is no positive standing order of the
house of lords requiring the party applying for the divorce to have previously obtained a verdict with damages in a court of law, in an action for criminal conversation, yet evidence of that fact is usually required for negativing fraud and collusion. The fact of judgment having been recovered must be proved by the record of the court. · The bill is then committed, reported by the chairman of the house, with amendments (if any), and ordered to be engrossed. It is then read a third time, and transmitted to the commons. In the house of commons the bill is then read a first time the day it is brought from the lords. When ihree clear days have elapsed, it will be read a second time, and committed to a committee of the whole house, and the next day sennight is appointed for the honse to resolve itself into a committee upon the bill. An order is at the same time made that it be an instruction to the committee, " that they hear counsel and examine witnesses boih for and against the bill.” The observations before made upon the service of the order and office copy of the house of lords are applicable to the service here, which must be personal, or made on the agent in the absence of the party, and with leave of the house. In a case where evidence had been given that the wife was out of the kingdom, it was ordered that the service of the order of the house for the second reading of the bill upon her mother, and leaving an attested copy of the engrossed bill, should be deemed good service upon the wife.) Counsel will be heard before the committee in support of the bill, as in the other house, and the like proofs will be required, except that the parol evidence cannot be given upon oath.(a) Evidence must be given conformable to the standing order of the house of commons already mentioned.(b)
But few divorce bills have passed in favour of injured females. Dr. [ *382]
Lushington said that he only remembered on
took place in the year 1801, in which there was proof against the husband of an incestuous intercourse.(c) In this case it appeared that a virtuous woman had been driven from her husband's house by the crime on his part of a double and incestuous adultery with her sister, a married woman.
The bill seems to have passed very much on the ground that no reconciliation between the husband. and wife could be legally made. A similar case has since occurred, in which the wife obtained a divorce in parliament.(d) As the wife
(y) See ante, pp. 148–153.
a third time, when it is returned to the house (z) Lingham's Divorce, 1805. Commons' of lords in the usual way. Journal, vol. Ix. p. 429.
(c) Hans. Parl. Deb. vol. xxv. p. 1387; (a) 1 Dwarris on Statutes, 360. 364 ; see Addison's Divorce Bill, Parl. Hist. vol. xxxv. Fractical Instructions on passing Private 1429-1436. Bills, p. 165–175.
(d) An act to dissolve the marriage of (b) Ante, p. 378. After the committee Mrs. Turton, and to enable her to marry have made their report, the bill may be read again. 1 & 2 Will. 4.
cannot maintain an action against the person with whom her husband has committed adultery, no verdict of a jury is of course in these cases required.
The proof of a verdict at law may be dispensed with, where the circumstances are such that the adultery of the wife can be proved by satisfactory evidence, and where at the same time it is impossible for the husband to obtain a verdict in an action at law. The absence of a verdict may arise from a variety of circumstances ; but it must not arise from ihe individual who comes for the assistance of the legislature to remedy his misfortune. The man guilty of criminal conversation may, by immediately quitting this country, and by remaining out of the jurisdiction of the courts, deprive the injured party of all means of obtaining a verdict. A verdict was dispensed with in the case of a naval officer, whose wise had been brought to bed of one child in his absence upon duty abroad, and upon his return was far advanced in her pregnancy with the second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman. It would also be dispensed with, if the adulterer should die before the husband could obtain a verdict. It has also been dispensed with in cases where the adulterer had avoided the process of the courts of this country by going to reside abroad.
The test of a verdict is thought by soine not to be worth much, *as it rarely elucidates the real facts of the
[ *383 ] case. In many instances the person who has committed the adultery, from a feeling of delicacy towards the wife, makes no defence; on other occasions both parties are anxious to obtain a divorce, and therefore nothing in the course of the trial comes out against the character of the husband.(e) Lord Wynford proposed a standing order to compel persons who applied for a divorce bill, to put upon the table before the second reading of such a bill, in all cases,
the noles of the judge who presided at the trial of any action in the case of criininal conversation.(S)
The husband was held to be deprived of his right to a divorce in parliament, by a letter offering 2001. a year for the separate maintenance of his wife, and agreeing to articles of separation, and to give up the adulterous connexion. (g)
Articles of separation were held in the house of lords to form an insuperable bar to the special interposition of the legislature on an application for a divorce.(h) A case is mentioned in which the husband obtained an act of
parliament, by which the marriage was dissolved, although he and his wife were living separate, and (in effect had never cohabited) when the adultery in proof was committed by the wife. To compensate for this ordinary requisite (namely, the cohabitation at that time of the parties) to the passing such an act, it seems that the two houses examined witnesses to the wife's ante-nuptial incontinence. Dr.
(e) Hans. Parl. Deb. vol. xxiii. N. S. p. 1385.
(1) Hans. Parl. Deb. 3d Ser. vol. iv. p. 921.
(g) Perry's Divorce, House of Lords, 281b Mörch, 18 18.
(n) In Esten's Dirorce, 1798, Hans. Parl. Deb. Vulo axxiii. p. 1305-1308.
Addams concives this to be the single instance of their having done so. Such evidence, it may be added, has in no instance been received to assist in making out the husband's claim to a sentence of separation, by reason of his wife's adultery, in the spiritual court.(1)
A case was mentioned in the house of lords where the lady, an infant in law, was inveigled into a marriage by a regular conspi. [ *384 ) mated, "it had been so solemnized as prevented the receiving of such evidence as would show informality in the proceedings before the ceremony. In this case the banns had been published sixty miles from the residence of either party, but according to law this circumstance could not be received in evidence. Leave was given to bring in a bill to dissolve the marriage, but it does not appear to have passed.(k)
Several attempts have been made to alter the law upon this subject. In 1771 a bill was brought into the house of lords by the Duke of Athol, the preamble of which stated that it was a remedial bill, made necessary by the scandalous frequency of divorce bills.(1) In 1779, the bishop of Llandaff, Dr. Barrington, who was afterwards bishop of London, brought in a bill “ for the more effectual discouragement of the crime of adultery;" and the preamble to his bill stated, that the great frequency of applications for divorce made some remedy necessary. Both these bills were passed through the house of lords, and sent down to the house of commons, where they were read a second time, but they were lost in a committee.(m) la 1800, Lord Auckland brought in a bill " for the more effectual prevention of the crime of adultery,"containing two provisions, the one to make it unlawful for the offending parties to intermarry; the other to require that every bill of divorce should contain a clause to prohibit such intermarriage. The bill passed the house of lords, but was negatived in the other house on the second reading (n) In the year 1830, the question was again the subject of much discussion on a motion for an address to the king, praying him “to direct the commissioners, appointed to inquire into the state of the ecclesiastical courts in England and Wales, to take into their consideration the state of the law of divorce, to consider the expediency of enabling persons to obtain divorce from the bonds of matrimony, in cases of adultery, by legal process in courts of competent jurisdiction.” The [ *335 ]
motion was negatived by a large majority.(o) Opinions
have frequently been expressed in the house of commons that it is not a fit tribunal to try such causes, and that it would be more advantageous to the public, as well as more creditable to parliament, if a particular tribunal were established to decide and determine all such cases cheaply and expeditiously.(p) Dr. Lushington
(i) 2 Addams, 306. See Perrin v. Perrin, (m) Parl. Hist. vol. xx. p. 592-601. 1 Addams, I.
(n) Parl. Hist. vol. xxxv. p. 225–325. (k) Hickson's Div.orce, Hans. Parl. Deb. (0) Dr. Phillimore, Parl. Deb. vol. xxiv. vol. xxiv. N. S. 354. 542; Ib. vol. xxv. p. N. S. 1260-1293. 298. 474. See Wakefield's Case, ante, p. (p) Hans. Parl. Deb. vol. xxiv. N. S. p. 215, n.
124. (1) Parl. Hist. vol. xvii. 185.