by Simon Heffer
Caroline wrote in January 1857 of the need for a Court of Divorce to be set up, arguing that ‘it is precisely because I think such a court would diminish, instead of increase, the number of separations and divorces that I desire to see it established.’20 She felt that in many cases – including her own – the very existence of a divorce court would lead to compromise between couples in conflict. As it was, the absence of such a court had caused the strife in her own marriage to become chronic and intense, and now she and her husband could not possibly be reconciled.
She sought to calm those men who saw it as an assault on their rights and on the institution of marriage. ‘Men are to be the judges; that is surely a great security against the false alarms of multitudinous divorces on the petitions of wives. I never argued for facility of divorce. I believe, even if it existed, it would be the last remedy women in general would seek. Thousands of women (and I am one among thousands), would rather endure any degree of poverty and loneliness than see a stepmother set over their children, if there were no other reason against divorce.’ She concluded: ‘I hope to see such reform as shall give this power to some distinct legal tribunal in the coming session, and that many a young angry couple, who stood on the brink of the precipice that led to utter disunion, may find from it the benefit, not of divorce, but of a rescued future, so that “peace and possibly sunshine” may settle on their lives long after the stormy light of ours shall have gone down into the darkness of the grave.’ The phrase in quotation marks was an ironic usage of words by her own husband, years earlier, and which had come to nothing.
A bill to allow divorces to be granted by a court and without the necessity to prove a criminal conversation was announced in the Queen’s Speech on 3 February 1857. Its passage was intensely controversial: the womanising Prime Minister, Palmerston, came under sustained attack from one of his eventual successors, Gladstone, who regarded the proposal as an assault on the authority of the Church. Paradoxically, one of the main supporters of the reform was the Archbishop of Canterbury, despite strong opposition to the bill from thousands of his clergy. The bill was almost identical to one the House had previously passed, and the Lords had rejected, except that it omitted an amendment to allow all parties except adulterers to marry again. Cranworth said he considered the proviso ‘most objectionable’ as ‘it involves a most cruel punishment upon the woman, and I am afraid in nine cases out of ten it will be a great boon to the adulterer.’21 In other words, men – who were usually the ones acting adulterously – would never be able to follow through and marry the object of their desires, much, it was assumed, to their relief.
There would be but one divorce court, at Westminster. The Bishop of Exeter, another pro-divorce prelate, complained this would not achieve an intention he had for the reform, to help the poor as much as the rich: those living in the north of England, and of limited means, could not hope to use the court. He argued for district courts throughout the country. His brother prelate, the Bishop of Oxford – ‘Soapy Sam’ Wilberforce – had a more traditional objection. He believed ‘it would tend greatly to unhinge men’s minds as to the sanctity of marriage, and would lead to no permanent and purifying result’.22
A committee in the Lords examined the bill at the end of May. It consisted largely of bishops quoting scripture to each other and arguing over the interpretation of it. This continued at the third reading before the whole House on 23 June, with Wilberforce maintaining that ‘there was no doubt that the words of our Lord forbade the adulterous woman remarrying in the lifetime of her husband’.23 He added that if the bill were passed, those responsible would have ‘intentionally and knowingly declared that the law of England should contradict the law of Christ.’ Despite Viscount Dungannon, moments before the vote was taken, announcing that the bill was ‘one of the most mischievous ever submitted to Parliament’ and ‘calculated to undermine all the moral principles of society’, the third reading was given, signalling the Upper House’s final approval.24 It was now up to the Commons to decide whether to legalise divorce.
Before it even reached the Commons an attempt was made, on 24 July, to prevent its being discussed at all. The MP for Oxfordshire, Joseph Henley, tried to have it thrown out because insufficient time remained to discuss it properly. He noted, too, that a petition signed by 6,000 clergy (and attracting new signatures daily) had been offered against the bill. It was a ‘crude, ill-digested and not well-considered measure’, he added.25 Sir George Grey, the Home Secretary, countered him. He said that the existing law on divorce created ‘scandals’.26 This brought Gladstone into the fray.
‘I must confess,’ he said, ‘I scarcely know what those scandals are’. He conceded there were questions concerning a woman’s property that were scandalous, but the proposed measure did not cover them. He felt it was a scandal that the rich could obtain a divorce when the poor could not; but that required lengthy discussion: a reason, he felt, not to proceed at that point. He also felt Grey had sought to politicise the question, which annoyed him: ‘I frankly own that I entertain no doubt with respect to the main question which is involved in the present measure. I refer to the question of the true interpretation of the Christian law of marriage.’27 With Parliament set to rise in mid-August, Gladstone was suspicious that the Commons had had to wait until 24 July to start to consider a bill that he called ‘hasty and slovenly’.28 He felt he, and others like him, were being bounced into a profound social change that stood at odds with centuries of Christian teaching.
He displayed his finely analytical mind at its best:
If the Bill gave but two alternatives—one, the indissoluble marriage, to which we have adhered since England was England; the other, dissoluble marriage, well understood, carefully limited, sustained by the clear authority of learned men, and the legislation of other countries—the ground would be much cleared and simplified; but there is not a country which has legislated with a view to make marriage dissoluble which has legislated in the same manner. The proposal is one of a perfectly novel character, not only with respect to the law of England, but also as regards the law of Christendom; it is one which never to this hour in the history of the world has been adopted. It is opposed to the law of the Church; to the law of nature, and to the law of God; and, whether good or bad, was one upon which the wit of man had never been able to hit before. The law of no country has ever made marriage dissoluble but upon principles far wider than those which are now proposed for our adoption.
Despite his objection to the principle, he also felt that if the law were to be changed then it had to be changed equitably. He, too, complained about the centralised nature of the proposed court. He drew parallels with Scotland, saying that it did not really have a divorce court, but that part of it that lay within easy reach of Edinburgh did. As for the rest of Scotland, divorce was largely impossible unless the parties concerned were rich. He argued that, instead, a proper system of local courts should be instituted. If this could not be contemplated, the law should not be altered.29 There had to be equal rights in the matter of divorce:
It is impossible to do a greater mischief than to begin now, in the middle of the nineteenth century, to undo with regard to womankind that which has already been done on their behalf, by slow degrees, in the preceding eighteen centuries, and to say that the husband shall be authorised to dismiss his wife on grounds for which the wife shall not be authorised to dismiss her husband. If there is one broad and palpable result of Christianity which we ought to regard as precious, it is that it has placed the seal of God Almighty upon the equality of man and woman with respect to everything that relates to these rights, and I will offer the utmost resistance to any attempt to induce this House to adopt a measure which I believe would lead to the degradation of woman.30
Gladstone was more of a theologian than many of the bishops, and inevitably his argument moved on to religious matters. Was Parliament ‘bound to frame the legislation of this House upon the law of Scripture’? The question was one ‘of great
solemnity and difficulty; but I will say, it appears to me that by this Bill we are dealing with an unprecedented levity with matters which do not belong to us.’31 He continued: ‘I speak of the religion which we entertain, and I do say it is a matter of the deepest consequence to take care that in our legislation with respect to matrimony we do not offer profanation to that religion by making its sacred rites—designated by apostles themselves with the very highest appellations—the mere creatures of our will, like some turnpike trust or board of health, which we can make to-day and unmake to-morrow.’ Referring to Russell’s Act of 1836 that introduced civil marriage, he asked whether Parliament proposed to introduce civil divorce and civil remarriage as well: this was another consideration that demanded more time.
Palmerston decided to conclude the debate. He expressed astonishment that a group of MPs should attempt to push the bill into the next session – which meant the procedure would have to start from scratch again, going through the Lords as well – solely because they expected not to have enough time to discuss it now, and to do so before a syllable of debate on it had been uttered in the Commons. He dismissed this as a ‘pretence’, and a ‘shallow’ one at that.32 He goaded those seeking a delay by saying it would have been ‘much more honourable’ to have argued against it on the second reading rather than to prevent that from happening at all. He mocked Gladstone’s objections by claiming his speech had been of such eloquence and intelligence that he was as ready to discuss the shortcomings of the bill then as he would be in twelve months’ time. The country knew what the bill contained and was ready for it; yet he asserted that the clergymen who had signed the petition against it were not aware of its provisions. He said he was happy to sit until the middle of September if it meant getting the business through. By 217 votes to 130 the House backed him, and the second reading debate happened a week later.
Sir Richard Bethell, the Attorney General, attempted to soothe opposition by saying the bill would simply transfer to a court of law something that had required the sanction of a legislative assembly after two other court hearings, including ‘the most abominable proceeding’, the action for criminal conversation, a system that was ‘a great reproach to this country’.33 The acceptance of divorce itself in England dated back to the Reformation: nothing extraordinary was being done, though he did concede that a woman would be given grounds against a husband whose conduct was so shocking that she could not be expected to live with him. Some remained to be convinced. Sir William Heathcote spoke of ‘a body of dissolute and depraved men [who] were already exulting over the licence which they expected to receive at the hands of the Legislature’.34 Henry Drummond argued that the measure would merely ‘continue the same tyranny of the male over the helpless female which now exists’.35 There was much talk of a thin end of the wedge: that if it were agreed now that divorce could be granted for adultery, it would not be long before it could be granted for other reasons.
Gladstone remained implacable. He pointed out, opening the second day of the debate, that after the Attorney General the previous day eight speakers had risen in turn against him: the supporters of the bill had decided not to speak but to hurry through to a division. He said he had letters from all over the Kingdom arguing that even more petitions would be submitted against the bill. From Cornwall, he heard the labouring classes were entirely against it. In Lincolnshire it was ‘thoroughly hateful in the eyes of the great mass of the middle classes and the poor’.36 He had seen evidence that even among the educated classes there was widespread ignorance about the bill’s provisions. Gladstone said he considered it ‘one of the most degrading doctrines that can be propounded to civilised men’ that ‘the Legislature has power to absolve a man from spiritual vows taken before God.’37 Eventually, he reached the question of sexual continence.
He felt the high incidence of this was:
attributable to the indissolubility of marriage according to the English law . . . The marriage state is a total and absolute change. You pass over a gulf which you know you cannot repass; you enter upon a new state, and you adopt all its obligations; but you are now going to make that gulf which has hitherto been impassable, passable; you are going to say to the woman who has sinned, although she may have sinned under the strongest temptation, ‘Your sins shall be unpardoned; you shall be divorced, and nothing shall reconcile you to the man from whom you have been divorced. You may marry again, and you may offend again, toties quoties; your sin shall be unpardonable by the person you have offended, though with his whole heart and soul he may be desirous to forgive you.’ That to me is a most doubtful state of things as regards the shutting the door to the penitent; but still more doubtful is the shaking the great idea of the marriage contract in the minds of the English people. Do not let us deal with humankind as if they were creatures of pure intellect, and as if life was governed by conviction. The traditions of past times, and the rules and customs of society, which a man inherits as it were from those who have gone before him, have more perhaps to do with the government of life than any other consideration. The indissolubility of English marriage is an idea which has never been shaken in the mind of England. At no time have the middle and lower classes of the English people known what it was to have marriage, dissoluble. Take care, then, how you damage the character of your countrymen. You know how apt the English nature is to escape from restraint and control; you know what passion dwells in the Englishman; but here is a great feeling of restraint observed among your population, and which has prevailed ever since England was England, that the marriage tie is indissoluble.38
His epic and wide ranging two-hour speech – on which his opponents congratulated him – was literally unanswerable. No one present had the wit to engage with him; Grey, who followed him, merely contradicted him. The only person who attempted to engage in theological argument was Spencer Walpole, who was not in Gladstone’s league: he bravely concluded that ‘the charm, the happiness, and the unspeakable blessing which now surrounds an English home’ would be better preserved with a divorce law rather than without one.39 The government had the numbers, however, and did not need to rely on force of argument: the second reading was given by 208 to 97.
By this stage 10,000 clergy had signed the petition against the bill. The main issue among objectors was that the bill would permit remarriage among guilty parties in a divorce, and clergy might be called upon to marry them, which seemed to have become the sticking point. The petition itself had demanded: ‘Remembering also, that it is declared in the Word of God, that marriage with a divorced woman is adulterous, we fervently pray that the Clergy of this realm may never be reduced to the painful necessity of either withholding the obedience which they must always desire to pay to the law of the land, or else of sinning against their own consciences, and violating the law of God by solemnizing such marriages as are condemned as adulterous in His Holy Word.’40
A committee of the whole House of Commons considered the bill clause by clause. ‘What is to become of society,’ asked Samuel Warren, the Tory MP for Midhurst, ‘if every man’s obedience to the law is to depend on his own notion of its conformity with the law of God?’ Warren was in no doubt that the Christian legislature should follow the Bible, and he could find no precedent for divorce there. Instead, there would be a system under which the State would say to proven adulterers, ‘Never mind the Church – go and be married under the authority of the State.’41 There was widespread feeling that only the wronged party should ever be allowed to marry again; and that clergy should quite specifically be exempted from having to marry a divorced person at all.
The new wave of publicity had not merely stimulated more clergymen to object to the bill, but had drummed up more petitions from the public. More than 16,000 women had signed one. Warren argued that the good things the bill did – such as protecting women against ‘cruel and profligate’ husbands – could be achieved short of condoning divorce. One MP pointed out with shock that in San Francisco, where divorce was allowed, 130 –
or one every three days – had been granted the previous year: he trusted matters would never reach such a pass here.
The government’s majority swatted aside almost all opposition. Some notions of radicalism were too much, however. An attempt to allow a woman’s earnings to be considered separate from her husband’s even when they were living together harmoniously was rejected as ‘monstrous’.42 However, the government failed to stop the move to allow local jurisdiction in divorce cases: and a larger problem reared its head in the question of equal remedies for men and women who were the victims of adultery. The view was that while God regarded unchastity as equally repellent whether practised by men or women, it was much more damaging to society when done by a woman. Chastity was the point of honour in women, as one MP put it, but not with men. Adultery in women was ‘attended with uncertainty as to the parentage of the offspring’.43 There was also the contention that ‘if the same facility for divorce was extended to the women as was given to the man, a power would be given to a selfish husband, by committing adultery, to drive the wife into the Divorce Court.’ She was, it seemed, supposed to grin and bear it.
Gladstone described this point as ‘one of the most serious and greatest moral and social questions that can be submitted to discussion’.44 He remained against reform of the law: but saw it was inevitable, and so amplified his belief that it should operate as equitably as possible. Opponents of equality said that giving a woman the right to sue for adultery would increase the number of divorces. He, however, said that ‘I confess when driven to a choice between the mischief of adding somewhat to the number of cases of divorce a vinculo on one hand, and the mischief, on the other hand, of writing on the statute book that principle of inequality . . . I make my choice deliberately in favour [of equality].’45 The greater evil was introducing inequality. ‘I take my stand in the first place on this, that if it be assumed that the indissolubility of marriage has been the result of the operation of the Christian religion on earth, still more emphatically I believe it may be assumed that the principle of the equality of the sexes has been the consequence of that religion.’
