MR. GLADSTONE AND THE DIVORCE BILL.
In 1857 there occurred a memorable passage of arms between Mr. Gladstone
and Sir Richard Bethell--afterwards Lord Westbury--on the subject of
divorce. More than one Commission had reported in favour of establishing
a separate court, so that the dissolution of marriage might be effected
by judicial separation instead of a special Act of Parliament. By this
change the expense incident to the existing procedure would be materially
reduced, and the remedy which lay within the reach of the wealthy would
be extended to the poor. As the law stood, the privilege of obtaining a
relief from the marriage tie depended on a mere property qualification.
If a man had 1,000 to spend, he might rid himself of an unfaithful wife;
if not, he must remain her husband.
The absurdity of the law was well put by Mr. Justice Maule. A hawker who
had been convicted of bigamy urged in extenuation that his wife had been
unfaithful to him and deserted him, and that was why he had to take a
second wife. In passing sentence, the judge, addressing the prisoner,
said: 'I will tell you what you ought to have done under the
circumstances, and if you say you did not know, I must tell you that the
law conclusively presumes you did. You should have instructed your
attorney to bring an action against the seducer of your wife for damages;
that would have cost you about 100. Having succeeded thus far, you
should have employed a proctor, and instituted a suit in the
Ecclesiastical Court for a divorce _a mensa et thoro_; that would have
cost you 200 or 300 more. When you had obtained a divorce _a mensa et
thoro_, you had only to obtain a private Act for a divorce _a vinculo
matrimonii_. The Bill might possibly have been opposed in all its stages
in both Houses of Parliament, and altogether these proceedings would have
cost you 1,000. You will probably tell me that you never had a tenth of
that sum, but that makes no difference. Sitting here as an English
judge, it is my duty to tell you that this is not a country in which
there is one law for the rich and another for the poor. You will be
imprisoned for one day.'
The long-postponed Bill was introduced into the Lords, where it passed
after unflagging opposition from Bishop Wilberforce. July 24 was the
date fixed for its second reading in the House of Commons, but no sooner
had the Attorney-General (Bethell) risen to explain the Bill than Mr.
Henley interposed with a motion that it be read again in a month. He was
supported in this unusual proceeding in a speech of great length and
energy by Mr. Gladstone. The motion was negatived by a large majority.
On July 30 the Attorney-General made his proposed statement. In the
course of his speech he pointedly alluded to Mr. Gladstone as a great
master of eloquence and subtle reasoning. 'If that right hon. gentleman
had lived--thank Heaven he had not--in the Middle Ages, when invention
was racked to find terms of eulogium for the _subtilissimi doctores_, how
great would have been his reputation!' The case against the Bill was
presented with the most telling force by Mr. Gladstone. He began by
urging the strong feeling against the Bill, and the great danger of
precipitancy on legislating in such a House under Government pressure.
The Bill undertook to deal not only with the civil consequences and
responsibilities of marriage, but also to determine religious obligations
and to cancel the most solemn vows; while, though not invested with any
theological authority, it set itself up as a square and measure of the
consciences of men. 'I must confess,' continued Mr. Gladstone, 'that
there is no legend, there is no fiction, there is no speculation, however
wild, that I should not deem it rational to admit into my mind rather
than allow what I conceive to be one of the most degrading doctrines that
can be propounded to civilized men--namely, that the Legislature has
power to absolve a man from spiritual vows taken before God.' Mr.
Gladstone met the assertion that the Bill made no change in the law, but
merely reduced to legislative form what had long had legislative effect,
by a direct negative. The Bill carried divorce to the door of all men of
all classes, and was therefore to all intents as completely novel as if
it had no Parliamentary precedent. Entering upon the theological
arguments under protest, as a discussion which could not properly be
conducted in a popular assembly, he adduced much historical testimony,
particularly that of the Primitive Christian Church, to refute the
propositions of the Attorney-General as to the solubility of marriage.
Coming down to the Reformation, Mr. Gladstone forcibly summarized Sir
Richard Bethell's argument, turning aside for a moment to interpolate an
amusing personal reference:
'While I am mentioning my honourable and learned friend, it would be
ungrateful in me not to take notice of the undeservedly kind language in
which he thanked Heaven that I had not lived and died in the Middle Ages.
My hon. and learned friend complimented me on the subtlety of my
understanding, and it is a compliment of which I feel the more the force
since it comes from a gentleman who possesses such a plain,
straightforward, John-Bull-like character of mind--_rusticus abnormis
sapiens crassaque Minerve_. Therefore, and by the force of contrast, I
feel the compliment to be ten times more valuable. But I must say, if I
am guilty of that subtlety of mind of which he accuses me, I think that
there is no one cause in the history of my life to which it can be so
properly attributed as to my having been for two or three pleasant years
the colleague and co-operator with my hon. and learned friend. And if
there was a class of those _subtilissimi doctores_ which was open to
competition, and if I were a candidate for admission and heard that my
hon. and learned friend was so likewise, I assure him that I would not
stand against him on any account whatever.'
Mr. Gladstone's next sally was received with much applause. He contended
that the Attorney-General had surpassed himself in liberality, for he
gave a ninth beatitude: 'Blessed is the man who trusts the received
version'--a doctrine much more in keeping with the Middle Ages and those
_subtilissimi doctores_ than with the opinion of an Attorney-General of a
Liberal Government in the nineteenth century; that was, Blessed is he who
shuts his eyes, and does not attempt to discover historical truth; who
discards the aims of legitimate criticism; who, in order to save himself
trouble and pass an important Bill without exertion, determines not to
make use of the faculties that God has given him, and throws discredit
upon scholarship and upon the University of which he is a conspicuous
ornament, by refusing to recognise anything but the received version.
Referring to the social aspect of the question, Mr. Gladstone with
glowing eloquence deplored the change which the Bill would work in the
marriage state, as shaking the great idea of the marriage ceremony in the
minds of the people, marking the first stage on a road of which they knew
nothing, except that it was different from that of their forefathers, and
carried them back towards the state in which Christianity found the
heathenism of man. In conclusion, he declared that he resisted the
measure because it offended his own conscientious feelings; it was a
retrograde step, pregnant with the most dangerous consequences to their
social interests; it was not desired by the people of this country; it
contained a proposal harsh and unjust towards the ministers of religion,
and involved an insult to religion itself; and, lastly, because it was
brought forward at a time when it was impossible to bring the mind of the
country and the House to an adequate consideration of its magnitude and
importance. Although he might be entirely powerless in arresting its
progress, he was determined, as far as it depended upon him, that he
would be responsible for no part of the consequences of a measure
fraught, as he believed it to be, with danger to the highest interests of
religion and the morality of the people. The speech held the House
spellbound, and its conclusion was greeted by prolonged cheering. It was
felt that all that could be said against the measure had been said.
After a forcible reply from Sir Richard Bethell, in which he addressed
himself exclusively to the argument of Mr. Gladstone, who had, he said,
on that occasion transcended himself, and, like Aaron's rod, swallowed up
all the rest of the opponents of the Bill, the second reading was carried
by a majority of 111. It was time Mr. Gladstone exerted himself; he had
lost ground last session as being unpractical.
In the October of that year Bishop Wilberforce was at Hawarden, and had
much talk with Gladstone. He said: 'I greatly feel being turned out of
office. I saw great things to do; I longed to do them. I am losing the
best years of my life out of my natural service, yet I have never ceased
to rejoice that I am not in office with Palmerston. When I have seen the
tricks, the shufflings, he daily has recourse to, as to his business, I
rejoice not to sit on the Treasury Bench with him.'
Of course, the Divorce Bill intensified his dislike to the Palmerston
regime. Never was there a severer fight than that which took place in
Committee. Clause by clause, line by line, almost word by word, the
progress of the measure was challenged by an acute and determined
opposition. One of the most important amendments was made by Lord John
Manners, to give jurisdiction to local courts in cases of judicial
separation. A still more important amendment was proposed with the
object of extending to the wife the same right of divorce as was given to
the husband. On this proposal Mr. Gladstone made a telling speech,
founding his argument on the equality of the sexes in the highest
relations of life. A further amendment in the same direction was
attacked with such ardour by Mr. Gladstone, Lord John Manners, and Mr.
Henly, that at length the Attorney-General claimed the right, as having
official charge of the Bill, to be treated with some consideration, and
then he carried the war into the enemy's country so as to bring Mr.
Gladstone again to his feet. He complained bitterly of Sir Richard
Bethell's charges of inconsistency and insincerity--'charges which,' he
said, 'have not only proceeded from his mouth, but gleamed from those
eloquent eyes of his which have turned continuously on me for the last
ten minutes.' He commented severely on the Attorney-General's statement
of his duty with regard to the Bill. It was pushed by him through the
House as a Ministerial duty; he received it from the Cabinet, for whom he
considered it his duty to hew wood and draw water. In the course of the
discussion of this clause, which occupied ten hours, Mr. Gladstone made
upwards of twenty speeches, some of them of considerable length. He was
on his legs every three minutes, in a white heat of excitement. Mr.
Gladstone is stated to have told Lord Palmerston that the Bill should not
be carried till the Greek Calends, and in reply to the question put to
him in the lobby by Sir Richard Bethell--'Is it to be peace or
war?'--fiercely replied, 'War, Mr. Attorney--war even to the knife.'
'Gladstone,' he wrote to his wife, 'gives a personal character to the
debates.' One of Mr. Gladstone's amendments--to the effect that
clergymen having conscientious objections to remarrying of divorced
persons were to be exempt from any penalty for refusing to solemnize such
marriages--which he was unable to move on account of a domestic calamity,
was put forward by Sir W. Heathcote and accepted by the Government, and
the long and bitter battle came to an end on August 31, when the third
reading passed without a division.
Writing as late as 1887, Mr. Gladstone contends that the Divorce Bill was
an error. 'My objection,' writes Mr. Gladstone, 'to the Divorce Bill was
very greatly sharpened by its introduction of the principle of
inequality. But there is behind this the fact that I have no belief
whatever in the operation of Parliamentary enactments upon a vow--a case
which appears to me wholly different from that of the Coronation Oath. I
think it would have been better to attempt civil legislation only, as in
the case of the Deceased Wife's Sister Bill. Lord Westbury and I were
pitted in conflict by the Divorce Bill; but he was the representative of
a prevailing public opinion, as well as of an Administration--I of an
opinion which had become isolated and unpopular. I remember hearing with
some consolation from Lord Wensleydale that he was against the principle
of the Bill.' It is but fair to add that, after the Act had passed, Mr.
Gladstone, with the generous frankness which distinguishes all great men,
wrote a letter to the Attorney-General, expressing regret for any
language he had used during debates on the Bill which might have given
pain. Sir Richard used to say during the course of the debates that Mr.
Gladstone was the only debater in the House of Commons whose subtlety of
intellect and didactic skill made it a pleasure to cross swords with him.