CUSTODY OF INFANTS.

HC Deb 14 February 1838 vol 40 cc1114-23

Mr. Sergeant Talfourd moved the second reading of the Custody of Infants Bill.

Sir E. Sugden moved as an amendment, that it be read a second time that day six months. As the law at present stood the father was entitled to the custody of the children, and the Bill as now worded took away from the male parent that exclusive power, for it went to place both parents in this respect precisely on the same footing, for the power of the father was taken away by implication. To this Bill he objected on principle, and on this amongst other grounds that the law was bound to deal with general cases. He readily admitted that there was no more painful source of regret to a mother than to be debarred from access to her children, and therefore, he was of opinion that the very consequence which it was sought to prevent would be promoted by the Bill. A wise legislature, as it appeared to him, would seek to bind married persons by a common interest, and certainly no wise Legislature would hold out facilities for separation. It frequently happened that very trifling differences were the subject of dispute between married persons, and, assuredly, so far as the mother was concerned, the love of offspring formed the great means of preventing in such cases a separation of the parents. The great tie which prevents the separation of married persons is their common children. A wife was, in general, glad to have that excuse for submitting to the temper of a capricious husband. It was some satisfaction for an angry woman, indignant at the treatment of her husband, to say, "I would leave him immediately but for my children." What was the consequence of this reflection? that her anger gradually cooled down; that the clouds which for a while brooded over her happiness were dispersed, and that after a short lapse of time, she was herself the first to admit the absurdity of which she would have been guilty had she left the protection of her husband's home. Now this Bill, by providing the wife with the means of always commanding access to her children, removed many of the obstacles which stood at present in the way of separation. In married life, the differences between the parties generally arose from their not giving way mutually to each other in the earliest stages of the dispute. Some time generally elapsed before husband and wife accommodated themselves to each other's temper. If you opened a facility to separation between husband and wife at the very commencement of their union, you opened a door to divorces and to every species of immorality. It had been truly and beautifully said by one of our old writers, that any little thing could blast an infant blossom, and that the breath of the south could shake the little rings of the vine, which, after they had stiffened into the hardness of a stem under the warm embraces of the sun, could endure the storms of the north, and yet never be broken. It was the policy of the law, therefore, to give time for all the little feelings of mutual discontent between man and wife to pass away and be forgotten, and to afford an opportunity for the powerful ties of common property, a common home, and the same children to work their natural effect on the affections of both. He had seen it stated in a fable that the best way of reconciling the differences between married people was to confine them together in the same room, and to give them but one chair on which to sit, one table at which to eat, and one place on which to repose, and that this mode of forcing them to accommodate themselves to circumstances was certain to re-unite their disjoined affections, and to afford solid grounds for the stability of their future connexion. He was opposed to every measure which facilitated the separation of husband and wife, and that feeling led him to oppose this Bill, of which the principle led inevitably to separation. His hon. and learned Friend, the Member for Reading had stated several cases in which the best feelings of woman had been turned to her disadvantage, and he might even say to her oppression. He admitted that such cases did sometimes occur; but was there no danger on the other side? He was prepared to contend that there was scarcely a case of differences in married life in which a wife did not ultimately reap the benefit of submission to her husband, and in which, after her irritated feelings had subsided, she did not thank God a thousand times that she had not obeyed the first impulse of passion, which prompted her to leave the house of her husband, where it was most for the interest and comfort of her children that they should be maintained and educated. The certainty which he had acquired of this being repeatedly the fact would prevent him from ever affording any facility to separation. But this Bill was open to other objections. It not only led inevitably to separation, but it also tended to render separation perpetual. When the wife knew that she could not have access to her children, after leaving her husband's house, she was unwilling to separate herself from him for light causes: supposing this Bill to pass into law she would argue thus:—"I can now have access to my children when I please and I will separate immediately from my husband." The Bill also led to this consequence — it would enable a woman, though divorced from her husband by the deepest crime which a wife could commit, to demand and have access to her children, and for this plain reason, that she was a parent living in separation from her husband. The Bill was carefully drawn throughout in that respect. The word "parent" was used throughout, and a woman who had thus misconducted herself and disgraced her family did not cease to be a parent because she had forgotten the duties and perhaps even lost the title of a wife. The Bill seemed to contemplate such a case, and even to provide for it. Besides, there were other cases of great enormity, in which it might be fitting that the woman should have no access to her children. His hon. and learned Friend would perhaps say that his Bill left it to the judge to determine when the mother ought to have access to her children. Be it so; then let the House consider what would be the consequence of giving this jurisdiction to any one of the judges at common law or to any one of the judges in equity. The Bill proposed that any one of these judges should have the power to vary or repeal the order or decree of any other of their number. What would be the consequence? A wife leaves the house of her husband after a sharp quarrel on what she deems justifiable cause. She goes at once to an attorney and says, "I want and must have access to my children whom I left in the care of my husband." He replies to her, "Then you must make out a case." She rejoins, "I can do it readily," He then tells her "You must put your facts into the shape of an affidavit." She does so by the help of this disinterested adviser; and what will the affidavit contain? It will describe the wretchedness of her married life; not one incident which has occurred since her marriage to the disadvantage of her husband will be forgotten, and every accidental slight and unkindness will be magnified into an act of oppression and cruelty. A look of scorn, a word of anger, will be brought forward as a real grievance, and alter all there will be no proper issue, as the lawyers say, for any court to decide, for it will never happen that a woman under such circumstances will rest her claim for access to her children upon any particular instance of cruelty. No woman will ever admit that she left her husband's home on account of a short quarrel of five minutes duration. No,— she will show, that she has endured patiently a long course of ill usage and cruelly, and that she did not leave her home until endurance was no longer possible. The husband exasperated by such an affidavit, will then give his explanation of everything that has occurred in his married life, and will meet her statement of grievances with a statement of her provocations, and, it may be, misconduct. He will endeavour to throw the blame on his wife, just as she has endeavoured to throw it upon her husband. It was proverbially dangerous to interfere in the quarrels of man and wife, as they generally both turned against those who interfered between them; and he should be loth to incur that responsibility, even though armed with judicial authority. There would be no end to the litigation over which the judge would have to preside. Facts would be asserted on one side, and denied on the other. Then the friends of the two parties would take share in their quarrels, and, as usual, would embitter them more and more. Mr. A., who had dined at the house with the parties, would speak to the use of some unkind word at dinner, and Mrs. B., who had her eyes always about her, would describe the withering effect of some scornful glance. The servants would be brought forward, and one half of them would swear one way, and the other half the other. Incontinence would be charged on one side, adultery on the other, and all this on affidavit, without any personal examination or cross-examination of the panies—and on all the res gestœ thus brought before him, the judge would have to decide one way or other. In the course of his professional experience he had seen many things of this kind, arising at their outset from trifles light as air, magnified into grievances almost beyond relief. A hearing of a case of this kind would easily cost 400l. or 500l. But the case once heard was not ultimately decided. No, it might go the round of all the judges in law and in equity. If one judge granted a decree this week, another might reverse it the next; for affidavits might be collected to show that, in the interval between the two decrees, the conduct of the husband or the wife had been so bad as to justify the reversal of the former decree. The Bill, therefore, opened a scene of misery for families, which was interminable, and an extent of litigation which was perfectly frightful; and for that reason, if he had not others, he should meet it with strenuous opposition. But how did his hon. and learned Friend propose to sup- port the jurisdiction given by this Bill to the judges over the husband? By the process of contempt. If the husband would not obey the order of the judge, giving the wife access to her children, he was to be in contempt. After all the time and attention which he had bestowed upon the removal of the evils caused by the process of contempt, there would be nothing that he should see with greater alarm than our prisons filled with prisoners for contempt. It was a subject to which he had paid long and deep attention, and he should have the deepest regret in seeing the Fleet, as he had seen it, 611ed with the victims of the process of contempt. It was not unusual for a man to go to prison rather than pay a debt: but if he had the means, a short imprisonment generally made him willing enough to purchase his liberty by payment of the debt. But when a man got into a prison, as in this case the husband would, on a point of feeling, it would be a difficult task indeed to induce him to alter that feeling. He would, in all probability, send the children out of the jurisdiction of the court, and would say, "I'll rather die than obey this order." He would not die, but he would be in contempt, and would be sent to prison. Until he obeyed the order no one could discharge him. Obey it he never would, and what would be the consequence? Just what had happened when he visited the Fleet Prison some few years ago. He found there persons who had been confined for twenty or thirty years, and heard of others who had died there after a long imprisonment, for contempts of a very trifling nature, and all this without any blame to any judicial tribunal whatever, for it was not in the power of any judge to relieve contempt, when once committed. Looking, then, at the operation of this Bill, he felt compelled to oppose it, and, in doing so, he trusted that his hon. and learned Friend, Mr. Serjeant Talfourd, would not consider that he was opposing him, he was only opposing his measure. He hoped that the Bill would not be considered a party measure; from the state of the benches behind him, it was evident that he had not so considered it. He had not hinted his intention of opposing it to any of his friends, and he wished it to be considered on its own merits and demerits alone. He moved that the Bill be read a second time this day six months.

Mr. V. Smith

hoped the right hon. and learned Gentleman would not press his amendment, for it appeared to him that most of the objections which he had urged against the measure were capable of being removed in the Committee. The first objection made to the Bill by the right hon. and learned Gentleman was founded on the use of the word "parent" throughout the Bill. Surely that defect, if it was one, could be cured in the Committee. Had the right hon. and learned Gentleman treated this Bill as a mere matter of law, he should have deferred to the well-deserved reputation of the right hon. Gentleman as a first-rate lawyer; but the right hon. and learned Gentleman had invited the House to discuss it on the principles of the human mind, with which hey were nearly all equally well acquainted, and had brought to the discussion of it, not precedents of law, but the adventitious aid of fable. The only legal argument which the right hon. and learned Gentleman had advanced was, that the affidavits, which would be necessary to enable a mother to introduce a claim to the intervention of the court, would be so long, so complicated, and so various, that he was loth to invite either her or her husband into the Court of Chancery to make them. Now, it appeared to him that when a parent stated, that access to her children was not allowed her by the husband from whom she was separated, the judge might settle her claim to access to them without entering into an inquiry whether her separation from her husband was proper or not. The right hon. and learned Gentleman observed that it was not desirable to increase the facility of separation between husband and wife, and he was ready to admit that many small inconveniences which occurred in married life were smoothed over by a knowledge of the great difficulty of obtaining a separation. The right hon. and learned Gentleman had also said that one of the finest principles of human nature was the attachment of a mother to her child. He admitted that it was so, and implored the House not to take advantage of it to compel a woman to reside with a husband who treated her with neglect and cruelty. That would be a compulsion inflicted on the weak for the benefit of the party who was strong enough already. All the difficulties of separation were at present on the side of the woman, and therefore in all the bickerings of mar- ried life the wife felt it expedient to yield, as she was the party on whom punishment must fall. According to the doctrine of the right hon. and learned Gentleman, the wife was placed in the position of a slave. The present Bill did not take from the husband any power of control which he now exercised over his children—it only gave the wife, whose children they also were, power of access to them. Allowing that there was considerable weight in the argument of the right hon. and learned Gentleman that it was inexpedient to facilitate separation between man and wife, still it ought not to be forgotten that in the present condition of society the situation of the wife living separate from her husband was far worse than that of the husband living separate from his wife. What did the husband suffer from this state of things? Did any man refuse to associate with a husband living separate from his wife unless it was charged against him that he had exercised some enormous cruelty against his wife? But was the rule the same with regard to the wife living separate from her husband? No. There was a scandal abroad which deprived her of the position she formerly occupied in society. She was tried with far greater severity than the man. She was tried at a tribunal where slander was her accuser, and vulgar credulity was her judge. The right hon. and learned Gentleman had stated another objection to the Bill, which he (Mr. V. Smith) thought might be removed in the Committee,—namely, that the decree of the judge on the husband was to be enforced by the process of contempt. If any other mode could be found for enforcing that decree, the right hon. and learned Gentleman, who had gained such well-deserved credit for his exertions in mitigating the severity of the law of contempt might propose it in Committee, and sure he was, that if the right hon. and learned Gentleman did so, the House would listen to him with the most profound attention. He hoped that the right hon. and learned Gentleman who appeared to have the same object in view as his hon. Friend the learned Sergeant, would allow the Bill to go into Committee. The right hon. and learned Gentleman had intimated that under the present law injury and injustice were very often inflicted on the weaker party. His impression was, that the House ought to provide for the protection of the weaker party in the marriage union; for in many, indeed he might say in the majority, of the cases of separation between husband and wife, the fault arose either from the neglect, or from the carelessness, or from the viciousness of the husband. He, therefore, wished to see the party who was the most likely to be aggrieved, the party to whom the House was most anxious to afford redress. It was impossible, he thought, that this Bill could be treated as a party measure; it was not intended, either by his hon. Friend the learned Sergeant, or by himself, that it should be so treated. He was glad to see, that it was not so treated by the right hon. and learned Gentleman, and he rejoiced to find that there was one subject, at least, on which honourable men of all politics could meet free from prejudice to consider of what was most conducive to the good of the whole community. In conclusion, he again implored the right hon. and learned Gentleman not to urge his opposition to the Bill at present, but to let it go into Committee to receive the amendments of which it was capable.

Sir E. Sugden

said, that after the candid appeal which had just been made to him, he did not hesitate to give way at once. He would withdraw his amendment and let the Bill go into Committee. He hoped that his hon. and learned Friend, the Member for Reading, would put the Bill into the best shape it would admit of in the Committee; but he must tell him distinctly at once, that he was so adverse to the principle on which it was founded, that he should divide the House against it on the third reading, even if he stood alone in the division.

Mr. Tancred

had a strong feeling against this measure. In his opinion the greatest evil which could befal a wife was a separation from her husband, and, so far from doing anything to facilitate such separation, it appeared to him that the House ought to support every enactment of the law as it now stood which placed an obstacle in the way of such separation. In nineteen out of twenty cases he Relieved the separated wife was allowed to have intercourse with her children; but then let it be observed this was by allowance of the husband, and that circumstance would materially tend to impart a tone of mildness towards the father to her intercourse. But under the proposed Bill no such circumstance would intervene, and embittered as the wife's feelings would be against the husband, the effect of her intercourse with the children would be to implant in them a spirit of animosity and hostility against their father. He considered, indeed, the Bill consulted neither the interests of the father nor the children. He could not but come to this conclusion, and so strongly opposed was he to the principle of the Bill, that if he could find supporters he should be disposed to take the sense of the House upon it before going into Committee.

Mr. Wakley

believed the Bill as it stood had the approbation of the whole of the British public, and he hoped that the hon. and learned Gentleman would not consent to any compromise or alteration that would make any material difference in the measure.

Mr. Goulburn

hoped that hon. Gentlemen would consult the feelings of the House, and not go into further discussion of the subject.

Mr. Sergeant Talfourd

expressed his sense of the kind manner of his right hon. Friend, the Member for Ripon, in the opposition which he had felt it his duty to offer to this Bill, and he should be very happy to entertain the suggestions of his right hon. Friend, but he would enter into no compromise or understanding as regarded the substance of the Bill. In using the word "parents" he had not meant to make any alteration of the law on the subject. As for the Bill itself, he looked upon it as some little recognition of the principle of extending justice to those who certainly had enjoyed but little of justice hitherto, and therefore he should certainly be most reluctant to consent to any alteration in its provisions.

Bill read a second time.