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 DIVORCE represent truly a state of things well-nigh intolerable, and a reform in the law of divorce was felt to be inevitable. The hour and the man came in 1857, the man in the person of Sir Richard Bethell, then AttorneyGeneral. The Act of 1857.—Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through Parliament with such dexterity and determination. The leading opponent of the measure was Mr Gladstone, backed by the zeal^of the High Church party and inspired by his own matchless subtlety and resource. But the contest proved to be unequal, and after debates in which every line, almost every word, of the measure was hotly contested, especially in the House of Commons, the measure emerged substantially as it had been introduced. Not the least part of the merit and success of the Act of 1857 is due to the skill which while effecting a great social change, did so with the smallest possible amount of innovation. The Act embodied two main principles: 1. The constitution of a lay court for the administration of all matters connected with divorce. 2. The transfer to that court, with as little change as possible, of the powers exercised in matrimonial matters by (a) the House of Lords, (6) the ecclesiastical courts, (c) the courts of common law. The Constitution of the Court—Tvq new court, termed “ The Court for Divorce and Matrimonial Causes,” was constituted by the Lord Chancellor, the chiefs and the senior puisne judges of the three courts of common law, and the judge of the Court of Probate (which was also established in 1857), but the functions of the court were practically entrusted to the judge of the Court of Probate, termed the “Judge Ordinary,” who thus in matters of probate and divorce became the representative of the former ecclesiastical jurisdiction. The Judge Ordinary was empowered either to sit alone or with one or more of the other judges to constitute a full court. The parties to a suit obtained the right of trial by jury of all disputed questions of fact; and the rules of evidence of the common law courts were made to apply. An appeal to the full court was given in all matters, which the Judge Ordinary was enabled to hear sitting alone. 1. To this court was transferred all the powers of the ecclesiastical courts with regard to suits for divorce a mensd et thoro, to which the name was given of suits for “judicial separation,” nullity, restitution of conjugal rights, and jactitation of marriage, and in all such proceedings it was expressly enacted (sec. 22) that the court should act on principles and rules as nearly as possible conformable to the principles and rules of the ecclesiastical courts. Judicial separation could be obtained by either husband or wife for adultery, or cruelty, or desertion continued for two or more years. 2. There were also transferred to the court powers equivalent to those exercised by the legislature in granting absolute divorce. The husband could obtain a divorce for adultery, the wife could obtain a divore for adultery coupled with cruelty or desertion for two or more years, and also for incestuous or bigamous adultery, or rape, or unnatural offences. The same conditions as had been required by the legislature were insisted on. A petition for dissolution (sec. 30) was to be dismissed in case of connivance, condonation, or collusion; and further, the court had power, though it was not compelled, to dismiss such petition if the petitioner had been guilty of adultery, or if there had been unreasonable delay in presenting or prosecuting the petition, or if the petitioner had been guilty of cruelty or desertion without reasonable excuse, or of wilful neglect or misconduct conducing to the adultery. The exercise of these discretionary powers of

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the court, just and valuable aa they undoubtedly are, has been attended with some difficulty. But the view of the legislature has on the whole been understood to be that the adultery of a petitioner should not constitute a bar to his or her proceeding, if it has been caused by the misconduct of the respondent, and that cruelty should not constitute such a bar unless it has caused or contributed to the misconduct of the respondent. But the court, while regarding its powers as these of a judicial and not an arbitrary discretion, has declined to fetter itself by any fixed rule of interpretation or practice. It is to be observed that this Act assigned a new forceto desertion. The ecclesiastical law regarded it only as suggestive of connivance or culpable neglect. But the Act of 1857 made it (1) a ground of judicial separation if continued for two years, (2) a ground in part of dissolution of marriage if continued for the same period,, (3) a bar, in the discretion of the Court, to a petition for dissolution, though it was not made in a similar way any bar to a suit for judicial separation. It is also to be observed that the Act was confined to causes of divorce recognized by the ecclesiastical law as administered in England. It did not either extend the causes of a suit for nullity by adding such grounds as antenuptial incontinence, even if accompanied with pregnancy, nor did it borrow from the civil law of Rome either lunacy or crime as grounds for divorce. Much comment has been made on the different grounds on which divorce is allowed to a husband and to a wife, —it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or an addition to it. Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract pointing in one direction, and social considerations in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorceonly if her reconciliation with her husband is neither to beexpected nor desired. This was no doubt the view taken by the House of Lords. In 1801 a Mrs Addison claimed an absolute divorce on the ground of her husband’s incest with her sister. The matter was long debated, but Lord Thurlow, who appeared in the House of Lords for the last time in order to support the Bill, turned the scale by arguing that it was improper that the wife should under such circumstances return to her husband (see Campbell, Lives of the Chancellors, vii. 145). “Why do you,” he said, “grant to the husband a divorce for the adultery of the wife 1 Because he ought not to forgive her, and separation is inevitable. Where the wife cannot forgive, and separation is inevitable by reason of the crime of the husband, the wife is entitled to the like remedy.” The Act (sec. 32) provided, in case of dissolution, for maintenance of the wife by the husband on principles similar to those recognized by the ecclesiastical courts, and (sec. 45) for the settlement of the property of a guilty wife on her husband or children; but this enactment was imperfect, as provision was made only for a settlement and not for payment of an allowance, and none was made for altering settlements made in view or in consequence of a marriage. The Act (sec. 35) provides also in all divorce proceedings, and also in those of nullity, for provision for the custody, maintenance, and education of children by the court: provisions of great value, which were unfortunately for some time limited by an erroneous view of the court that the age of the children to which such provisions applied should be considered limited to sixteen. The Act of 1857 also transferred to the new court the powers exercised by the common law courts in the action for