« PreviousContinue »
which had been diagnosed as thrombosis,
VALIDITY.-German Verge, of New South Wales, grazier, by his will, dated 1st October 1919, bequeathed his residuary estate "unto the trustees for the time being of the Repatriation Fund' or other similar fund for the benefit of New South Wales returned soldiers." Held that the trust so constituted was a good charitable trust as it was a public trust to benefit a class of the community, and that, if it were necessary to consider at all the question of a trust for the poor, it was a gift to benefit that class in some sense expressed by the word "repatriation."-Judicial Committee of the Privy Council (Lords Atkinson, Wrenbury, and Darling).-25th January 1924.
The Scots Digest, 1914 to 1923.
W. Green & Son Ltd. Price 30s. net.
Sale of Goods on C.I.F. and F.O.B. Terms: a
This little alphabetical guide to the reported decisions on mercantile contracts of sale will prove useful to the commercial lawyer. It shews evidence of care and thoroughness in preparation.
CURRENT LAW LITERATURE.
Compendium of Precedents of Pleading, Common
Compendium of Mercantile Law. By John
William Smith, Barrister-at-Law. Twelfth
Reports of Tax Cases. Vol. VIII. Part VII. H.M.
Journal of Comparative Legislation and International
The Yearly County Court Practice, 1924. 1924
THE RECENT HISTORY OF DIVORCE
The present position of the divorce controversy in England is one of considerable interest, and it may be worth while to give a short account of the recent history of this question. In 1909 a Royal Commission was appointed to investigate the whole subject, and after three years' work, in the course of which they examined a very large number of witnesses drawn from all classes in the country, they issued their report in November 1912. Unfortunately, they had not succeeded in attaining unanimity, and accordingly the report consisted of two parts-a majority report signed by nine members of the Commission, and a minority report signed by three. It may be convenient to dispose first of all of the latter by reminding the reader that the minority concurred in one or two of the more conservative reforms recommended by the majority, but made no independent contribution to the discussion beyond reiterating the views which ecclesiastical authority has always held on this subject. So far as reform was concerned, they were willing that the two sexes should be put on an equal footing in regard to divorce; that an order of presumption of death, entitling the petitioner to remarry, might be granted where the other party to the marriage had not been heard of for seven years; and that certain additions should be made to the grounds upon which a decree of nullity could be obtained. But they were opposed to any addition to the grounds of divorce, except in so far as they concurred with the recommendation of the majority in regard to presumption of death. And that came very far short of recognising desertion as a ground, since the majority had advocated it as a remedy supplementary to the divorce they were prepared to allow in the case of wilful desertion. The minority report bore the signatures of the present Archbishop of York, the late Sir William Anson, and Sir Lewis Dibdin. The views of the eminent churchman who occupies the See of York are well known. As regards the two others, it is, perhaps, not a wholly irrelevant consideration that Sir Lewis Dibdin is an ecclesiastical lawyer and Dean of the Arches; while of Sir William Anson, Lord Birkenhead remarked (in the debate on second reading of the Matrimonial Causes Bill, 1920) that "his life had been perhaps a little secluded from some of the issues which to-day require decision at your Lordships' hands."
The majority report bore the signatures of the late Lord Gorell (the chairman of the Commission), Lady Frances Balfour, the late Mr Thomas Burt, the late Lord Guthrie, the
late Sir Frederick Treves, His Honour Judge Tindal Atkinson, Mrs Tennant, Mr Edgar Brierley (the Stipendiary Magistrate of Manchester), and Mr J. A. Spender (till recently the editor of the "Westminster Gazette "). Of these nine, two-Lord Gorell and Lord Guthrie-held high judicial office in England and Scotland respectively, and a third, Mr Tindal Atkinson, is a County Court judge. The majority report made very extensive recommendations involving both substantive law and procedure, from which I select the two most important, namely, (1) their proposal that the grounds of divorce should be the same for both sexes; (2) that there should be five new grounds of divorce, in addition to those recognised by the present law. The grounds proposed were these :—
A Bill was introduced in the House of Lords by Lord Gorell, in order to give effect to these recommendations. But the war intervened, and the Bill had to be dropped.
The next step in the matter was taken on 5th November 1918, when Lord Buckmaster introduced his Separation and Divorce Bill. He proposed to make desertion persisted in for a period of five years a ground of divorce; to abolish, in this class of case, the intervention of the King's Proctor, and so render the decree nisi unnecessary; and to allow poor persons to bring divorce suits in the County Courts. The Bill came up for second reading on 12th November 1918, the day after the Armistice, and it was thought hardly appropriate in these circumstances, when the minds and hearts of men were turned to very different reflections, to proceed farther with it at that time, and, accordingly, in a thin House the motion for second reading was defeated by 39 votes to 29. The General Election of 1918 followed, and the question was left over to be dealt with by the new Parliament.
Parliament met in February 1919, and was dissolved in the month of November 1922, consequent upon the break-up of the Coalition. During the four sessions it sat, two measures dealing with this topic were introduced in the House of Lords: the first by Lord Buckmaster on 24th February 1920; and the second by Lord Gorell, the son of the chairman of the Commission, on 22nd February 1921. Both
these Bills were accorded a third reading in the House of Lords by substantial majorities, but in each case the Government refused facilities in the House of Commons, with the result that the Bill was dropped.
None the less, it may not be wholly unprofitable to examine a little more closely the details of those Bills which received such a prolonged and careful consideration in the House of Lords. The first, the Matrimonial Causes Bill, 1920, was a much bolder attempt than the measure of 1918. In the words of its author, it "exactly embodied the whole of the recommendations made by the Royal Commission," of which the most important were those relating to the equality of the sexes and the additional grounds of divorce. It came up for second reading on the 10th of March, the debate was adjourned to the 24th of March, and, after a discussion of the greatest interest and ability, it obtained a majority of 48 (93 for and 45 against). The third reading was also carried by a very substantial majority, 154 to 107.
I hope it may not be open heresy for a member of the Liberal party to express his respectful admiration for the debate that took place in the Lords both on this Bill and on the measure of the following year. Of the speeches delivered during these two sessions, I personally prefer, and in that order, those of Lord Buckmaster, the Earl of Birkenhead, and the Lord Bishop of Durham. But the whole discussion was on an extraordinary high level, and on this particular topic, requiring a wide knowledge both of law and of history, it is doubtful whether any other legislative assembly in Europe could have equalled it. One would like to draw attention particularly to the speeches of Lords Buckmaster and Birkenhead on the second reading of the 1920 Bill, and of the Bishop of Durham on the third reading of the 1921 Bill. Lord Birkenhead's speech is reprinted in his "Points of View." As regards the Bishop of Durham, it would be a pity not to quote the passage where he deals with the claim of the Bench of Bishops to be the supreme leaders of the Church. Here it is: "We Bishops are sometimes described as the leaders of the Church, and I suppose in some sense the leaders we must be. It is well to enquire in what sense we are leaders, for there are two conceptions of leadership generally current among us at this time. The one aims at educating those who are led, and the other is content to echo their opinions. I have sometimes thought that democracy favours the latter, rather than the former, conception of leadership. None the less, it does not commend itself to me as either dignified or valuable. "Let me illustrate my contention by a suit
able simile, In the days before the motor car robbed our streets of most of their interest and much of their safety, it was not uncommon to see the carriages of the wealthy preceded and accompanied by picturesque Dalmatian hounds, which were vulgarly called 'plum-pudding dogs.' The vain beasts, bounding in front of the horses, doubtless supposed that they directed the carriage which they preceded, and all the time they were themselves strictly held to their route by the driver on the box. That carriage-dog theory of leadership seems to me very popular at the present time. It may suit democratic politicians, but it is, in my judgment, incongruous with the character, and inconsistent with the influence, of an English Bishop. Therefore, I do not concede that any reflection on a Bishop's true leadership is involved in the circumstance that he happens to find himself for the time being in a minority."
As has been stated above, Lord Buckmaster's Bill passed the House of Lords by a large majority. Unfortunately it went no farther, and the results of a session's work were thrown away. The measure introduced by Lord Gorell in the following year was much less ambitious in its scope, proceeding more or less on the lines laid down in the minority report. It provided that there should be one law for both sexes, and that, where one spouse had not been heard of for seven years, the other should be entitled to obtain a decree of nullity on the ground of presumption of death. An amendment was moved in Committee, however, by Lord Buckmaster, to add desertion for three years as a ground of divorce, and accordingly, when the Bill came up for third reading, it contained no longer one ground of divorce, viz. adultery, coupled with a special provision in the case of presumption of death, but two alternative grounds, adultery or desertion. In this altered shape it lost the support of the Archbishop of Canterbury and the other ecclesiastics, who had been prepared-without enthusiasm to support a Bill which did not go outside the recommendations of the minority report. It nevertheless succeeded in obtaining a majority of 39 votes (87 for and 48 against). But this measure also had to be dropped, because it was found impossible to obtain facilities in the House of Commons. In the 1922 session no further step was taken, and, when Parliament was dissolved in November, the prospects of reform were as remote as before. In the short-lived Parliament which met in February of last year and was dissolved, with indecent haste, in the following November, the first step was taken on the path of reform. A Bill was introduced by Major Entwistle, then as now member for
the South-West Division of Kingston-upon- 37 in a thin house (88 for, and 51 against). Hull, which gave women equal rights with men, Lord Buckmaster then stated that he would so far as the Divorce Court was concerned. The not ask their Lordships to undertake the task Bill had few opponents in either House beyond of discussing the Bill in committee, unless they that picturesque survival, Lord Braye, who has obtained from the Government a promise that for many years resisted all and every attempt facilities would be granted in another place. at reform, and it received the Royal Assent on But the Lord Chancellor, who replied for the 18th July 1923. It is, however, still true to Government, would give no promises. There say that the labour and research, which have in the meantime the matter rests, and we may been bestowed over a period of fourteen years now turn to consider, briefly, the changes it upon this question, have yielded practically no is proposed to make. result. The injustice which Major Entwistle's Of the five additional grounds advocated by Bill sought to remedy was one of form the Commission, one, that of desertion, seems rather than of substance, because under the to call for special comment. And here a law as it then stood a wife whose husband Scotsman is entitled to congratulate himself had left her and gone to live with another upon the circumstance that this remedy, which woman might obtain what was called an order it is now proposed in the face of obstinate and for the restitution of conjugal rights. The fanatical opposition to graft upon the law of disobedience of that order was treated as England, has been available in Scotland for equivalent to desertion, and, along with the 350 years. (It was sanctioned by the Scottish adultery, at once enabled her to obtain a statute, 1573, cap. 55.) Desertion, that divorce without the necessity of proving is to say, wilful desertion, stands in some desertion for two years. Upon this procedure respects apart from the other four grounds, Lord Buckmaster commented during the debate which were recommended by the Commison the Separation and Divorce Bill of 1918 (12th sion and incorporated in the Bill of 1920. November): "I do not think the Courts have Unlike, say, cruelty or habitual drunkenever been called upon to administer such a ness, it presents no difficulty in definition : farcical jurisdiction since the days when they and it also differs most materially from the abolished the collusive suits for the purpose of other proposed grounds in that its very essence barring entails." These strange proceedings consists in the refusal by one of the parties to are now no longer necessary; but, although the a marriage to recognise the subsistence of that Act has made a change in the direction of marriage. From this point of view, it is percommon sense and simplicity, which abolishes haps a more absolute breach of the marriage a preposterous legal fiction and substitutes for contract than adultery itself, because it is a it an intelligible rule of law, yet, so far as the deliberate repudiation of that contract by one parties themselves are concerned, it makes of the parties to it. Drunkenness, insanity, little difference in practice, except, in certain cruelty, crime-all these are offences or miscases, to simplify the procedure in divorce suits, fortunes which may or may not justify a claim and, possibly, reduce costs. This is a very poor to divorce, according to the view that may be and unsatisfactory result for the efforts that taken of these matters; but certainly they do have been made. For apart from this Act, and not-and desertion does-constitute in themthe rules under which petitions for divorce selves a wilful evasion of the marriage bond. may be heard by the Assize Courts, not one Without taking sides, one can very easily see of the recommendations made by the majority the reasons for and against the others. But of the Commission has yet been given effect to when one turns to consider the attitude of by Parliament. Yet, again to quote from Lord those who admit adultery and deny desertion, Buckmaster (House of Lords, 10th March 1920), comprehension becomes very much more surely it is "impossible that a report of such difficult. The ground of adultery is supposed value, signed by such men, should simply be to be based upon a text in St Matthew, which thrown on to the rubbish-heap." In the present has been the source of many controversies. It Parliament, Lord Buckmaster has introduced is to be found in the 31st and 32nd verses of yet another Matrimonial Causes Bill, which he describes as an exact reproduction of the measure the House of Lords passed four years ago; and this Bill was accorded a second reading on March 12th, securing a majority of
1 These rules form Order 36A of the Rules of the Supreme Court, and came into force on 12th July 1922 : they were made in virtue of the Administration of Justice Act, 1920, section 1.
the 5th Chapter of St Matthew's Gospel, which (for the sake of reference) are quoted here both in the original Greek and in the translation given in the Authorised Version.
"It hath been said, whosoever shall put away his wife, let him give her a writing of divorcement:
31. Ερρέθη δὲ ὅτι ὃς ἂν ἀπολύσῃ τὴν γυναῖκα αὐτοῦ, δότω αὐτῇ ἀποστ τάσιον
32. "But I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery, and whosoever shall marry her that is divorced committeth adultery."
ὅτι TηV Yvνaîka AνTOû, TapEKTOS λÓYOU Tоpveías, ποιεῖ αὐτὴν μοιχᾶσθαι καὶ ὃς ἐὰν ἀπολελυμένην γαμήσῃ, μοιχᾶται.
32. ¿yw dè déyw vuîv quoted a passage from a sermon preached in ös äv áπodúon Westminster Abbey by Canon Charles, "one of the most learned men in England," where he said that "Christ, by accepting the Jewish laws relating to the adulterous wife and conâning His own enactments to less grievous offenders, allowed the right of divorce on the ground of adultery, as well as subsequent remarriage on the part of the guiltless person concerned, but forbade divorce on any lesser ground." The divorce law of Scotland, approved by the National Church after the Reformation and followed without interruption during a period of three and a half centuries, has already been commented upon. I turn to consider the case of Ireland, and there I find that no one can obtain a divorce, except by the very special and extraordinary procedure of a Private Act of Parliament. According to Lord Braye (House of Lords, 28th April 1921): "In Ireland no divorce court could ever be set up in any circumstances, and even the enemies of Ireland are bound to confess that the purity of the Irish race is one of the lights of the world."
The reader will note a very curious feature in these two verses. They make no reference whatever to the wife putting away the husband. Earl Russell pointed this out in the House of Lords (10th March 1921), and proceeded to quote from a former Bishop of Oxford who declared, in 1856, that "he could find no shadow of a foundation in the Gospel for the extension of the right of divorce to a wife. It was distinctly stated that a husband might put away his wife, but no general principle was asserted in the Gospel which would equally entitle a wife to put away her husband." Accordingly, if the words of St Matthew are to be regarded as legislative for all time, a wife has in no circumstances the right to divorce her husband. But even apart from this consideration, opinion is acutely divided on this passage. There is, first of all, the difficulty that it does not recur in the parallel chapters of St Mark and St Luke, and great stress has been laid on that. Then the Churches have disputed bitterly over the interpretation of these words. The Roman Church has always denied divorce, even on the ground of adultery, as contrary to the doctrines of Christianity. It interprets the words in St Matthew as referring to separation, not divorce, and alleges in support the consensus of 2000 years. The Church of England appears to speak with a divided voice on this question. At the second reading of Lord Gorell's Bill on 10th March 1921, the Archbishop of York said that he regarded it as involved in the teaching of Christ, and in the principles of the Church, that marriage is dissoluble only by death, and that divorce, carrying with it the right of remarriage, is not consistent with that teaching or with those principles.' On the other hand, the Archbishop of Canterbury declared in the House of Lords on 22nd June 1920, that "We" (i.e. the opponents of the 1920 Bill) convinced that, regarded largely, the principle which I have laid down is sound-I mean, the principle of its being only in the case of unfaithfulness, or fornication, that relief from the marriage bond is allowed by the teaching of our Lord. It is the principle laid down by our Master in the Sermon on the Mount." And the Archbishop
Confronted with this cleavage of opinion in the Churches, one can scarcely agree that it is possible to solve this problem by reference to a bare text from the New Testament. Certainly one would imagine that this text could not be considered authoritative until, at the least, the Churches had made up their minds what it means. As things stand, uninstructed opinion will probably agree with the Bishop of Oxford in 1856 that it denies all divorce rights to women. But it is not impossible that a more reasonable result may be arrived at by considering the legal nature of the marriage contract itself. Looked at from this angle, it will seem curious that, where one party to the marriage has repudiated the whole of his obligations under it, as in the instance of desertion, the other should be refused all relief. The debates in 1920 and 1921 contained many examples of the extreme hardship and suffering occasioned by this refusal, which it would be unnecessary to detail here. But it may be useful to direct the reader's attention to the legal aspect of this question, and to point out how unfairly this rule works out in practice. Take the case of the husband, who deserts his wife and children and goes to the Colonies. In all probability (at least in most cases) he lives with another woman out there, and, if the wife could prove that, she would under the present law be entitled to a divorce. But the cost of obtaining such evidence is considerable, and poor people cannot afford it. The result is, since the natural remedy of divorce is denied them, they are deprived of the relief which wealthy people obtain quite easily by making the necessary investigations abroad.