HC Deb 09 May 1838 vol 42 cc1050-5

The Report on the Custody of Infants Bill was brought up, on the question that it be engrossed,

Sir Edward Sugden

rose to oppose it. He had thought, that the bill would not have gone beyond a Committee, and as he was much opposed to the bill, he would take the sense of the House upon every stage. The true question to be decided was, whether it were for the benefit of society at large, that a woman should have the absolute right to the custody of her children whatever her conduct might be. Now, he admitted, that his learned Friend (Sergeant Talfourd) had adduced many cases of hardship, but the House ought not to legislate for particular cases, but ought to look to the general benefit of the public, to which end he thought that the proposed bill would not tend. For he thought that it would lead to many separations between women and their husbands, if the woman had this absolute right. It was true, that the bill did not at once give that absolute right, but it gave a power which was even more objectionable; it gave a right to the judge before whom the question was mooted to investigate the whole domestic life of the parties from the time of the marriage to the very day of the application, by enabling the applicant to put affidavits on the file, the charges contained in which would necessarily lead to recriminations. Affidavits would be filed on the other side, and Ultimately the case would become so oppressive that it would be impossible for the judge to decide; and these statements having been made, some public prints would gladly avail themselves of them, and would parade the whole before the world. The object of the bill was, to give the wife access to her children in all cases of separation; but how could they enforce any such enactment? In the first place, the husband would take the children out of the jurisdiction of the court, so that the wife would not have access under its order; and to prevent this, was the court to settle the place where the children were to be kept? He believed, that when a separation had taken place, it would be extremely difficult to enforce any rule of this kind. Even as the law now stood, women were constantly taking their children out of the way of the husband when differences arose, and if this bill passed, the husband would be found to do the same; and, he was sure, that there was nothing so likely to continue separation, when it had once taken place, as the measure proposed by his hon. and learned Friend, than which nothing, in his opinion, could be more mischievous, though he was satisfied his hon. and learned Friend had brought it forward from the purest and best motives. His hon. and learned Friend had felt the hardships of individual cases, and intended to provide for the difficulty by proposing a general remedy, but he believed that this general remedy would not tend to the public good.

Mr. Praed

could cordially support the bill, not seeing in it the mischief which the right hon. Gentleman feared. The question was so far removed from party feelings that he might do so, and he believed that this proposal was calculated to do more moral good than any measure which had for a long time been before the House. The right hon. Gentleman had said, that this question was, whether a woman should have the absolute right to the custody of her children, whatever her conduct might be; but this was nothing like the question before the House, and such a project had never been dreamed of by the learned Sergeant. The only question raised was, whether, when the husband and wife were living asunder, and when one parent had the custody of the children, an impartial person should have power to take the circumstances into consideration, and to give the mother limited access to her children. Was that giving to the mother the custody of her children? Above all, was it giving to her this custody whatever her conduct might have been? Nothing was so likely to keep her conduct correct as to give her licensed interviews with her children. The right hon. Gentleman also asked, what means could be taken to enforce obedience to the court's decrees? and if in no similar instance a like power had been given, the argument might have had some weight; but what objection could there be in giving the same power for higher considerations which was now possessed for lower considerations of a merely pecuniary nature? But then, it was said, the husband might rebel against the law; but did not the wife, according to the right hon. Gentleman's own admission, rebel now? and would it not be an advantage to substitute the rebellion of the husband for the rebellion of the wife? No one would say, whatever the law might be upon the case, that Mrs. Greenhill had not been grossly ill-used; and was she to have no remedy? Still, it was feared, that this remedy would sever the bond of nuptial union. This, however, was far more effectively done by the present state of society, which, whatever might have been the conduct of the husband, received him; but, though it acquitted the wife of all blame, rejected her. If, however, there were any truth in the argument, that the occasional access to the children under the order of a judge would lead the wife to separate from her husband, how much more must the daily access of the husband lead him away? The right hon. Gentleman said, however, that this bill applied only to individual cases; this was true, for happily it was only for individual cases that they must legislate, and long might it be that individual cases alone should require it; but, for those cases, was not this amendment necessary, instead of leaving the law as it now stood? So far from the question being as had been stated by the right hon. Gentleman, the true subject for their consideration was, whether the wife should be debarred from access to her children, however amiable, virtuous, and praiseworthy, her own conduct might be. In the case of illegitimate children, the law dealt more fairly with the mother, for to her was given their custody; but though it was otherwise with legitimate children, yet in nine cases out of ten, especially when the children were of tender years, the mother was the better guardian, and this no one would deny. Such was the present state of legislation; and could it be worse? The true test, however was—suppose the present state of the law to be as it was proposed in the bill of the hon. and learned Sergeant, and then suppose an hon. Member were to come down and say, that it had induced wives to quit their homes, that it had led to separation, and should call upon the House to alter it—to enact the present law, and to declare, even if the husband should have been guilty of the grossest debauchery, and had by his brutality driven his wife from his roof, yet that the husband should have the custody of the children, and that his virtuous and injured wife should not have even a limited access to them, he was sure that no individual in that House would be found to second such a proposition.

Mr. Shaw

agreed in the opinions of his right hon. and learned Friend (Sir E. Sugden). He admitted, that there were many cases of hardship which the law did not meet, yet they ought not to legislate on individual cases; and whatever power they gave to the judge, he would have no means of enforcing it upon the husband. He thought, also, that no woman of a delicate mind would submit to call upon a court to interfere and to exercise these powers; and if they gave a legal right to a mother to see her children, the children would be induced to side with one parent or the other, and this would rather widen than heal the breach.

Mr. Sergeant Talfourd

, in reply, said, that the case had been already so fully argued that he need only say a few words upon that occasion. Upon the first introduction of the bill, he had not selected individual cases of great hardship, but he had referred to all the cases which had come before the courts. He knew that women had a strong disinclination to bring their wrongs before a public court, and to claim the last comfort which they could enjoy in this life; it was only, therefore, in cases where the natural feelings of the mother were exceedingly strong, that the courts of law were at present called upon to interfere; but all these cases, without exception, he had brought under the notice of the House in the first instance. His right hon. Friend objected to the granting of this small quantum of justice, because it would tend to promote separation; but the right hon. Gentleman's argument was a strong one in favour of the bill, for what was more deplorable than that this depth of feeling should be the last link to prevent a virtuous woman from separating from her husband who ill uses her, and that only by this iron bond should they have the power of inducing the wife to remain under her husband's roof, and that the husband should be allowed thus to torture and to play upon the feelings of his wife, whatever cruelty he might have used towards her. But then it was alleged, that applications to the judges would tend to disclose private scandal: it would have a directly opposite effect—it would prevent the disclosure. As the law now stood, husbands must apply by attachment against their wives, and the wives outraged the laws of their country by removing the children, rather than outrage the dearer ties of nature. Now, these applications were made in public courts, where all proceedings were legally reported; but his object was, to have the cases heard before a private tribunal, which would be above suspicion, where the cases would be shielded from the public eye. It would be no defence to an action for libel, for disclosing to the public the facts detailed in the affidavits read before a judge at chambers, that the facts had appeared in such affidavits, because they would only be read at chambers, and the right to publish the reports extended only to the courts. The facts, therefore, could appear only at the instance of one or other of the parties; and even then, the publication would be equally indefensible. He placed his case on this simple point. He sought not to disturb the common-law right of the father to the custody of his children; he sought merely to allow a remedy in certain cases of grievous wrong, by giving to judges a discretionary power, which they had themselves asked for, to permit a wife to see her children. He prayed the House in some degree to assimilate the law of the land to the law of nature, and give in part that justice which had been so often prayed for, and too long delayed.

Mr. Goulburn

was of opinion, that this bill would only apply to a few unimportant cases. The bill would give power to divorced women to see their children, and have control over them. He could not conceive a more impolitic provision. If the father wished to preserve his children from contamination, he should keep them se- parated from such a woman. He agreed with his right hon. and learned Friend (Sr E. Sugden) that every difficulty should be thrown in the way of separation, as there were many disputes which now ended happily, but which, under increased facilities, would terminate in separation. But he laboured under this difficulty in answering the learned Sergeant, that the cases alluded to, having never met the public eye, were not reported. They, however, were sufficiently numerous to confirm him in his opposition to this bill.

Mr. Freshfield

was of opinion, that the judges should be given a discretionary power to allow mothers access to their children. It was said, that the bill would facilitate separation, but the present state of the law facilitated oppression, as he believed that the fault was as often on one side as on the other. He believed, that bad wives were not more plentiful than bad husbands. On these grounds, he would not have the slightest hesitation in voting for this bill.

Lord Mahon

thought, that when criminal conduct was proved against the mother, she ought not to be permitted to see her children. If some provision of this sort was introduced into the bill, it would tend greatly to obviate the objections against it. Unless that were done, he should be under the painful necessity of voting against the bill.

Mr. Sergeant Talfourd

, if he found the feeling of the House in favour of such a clause, and that its insertion would have the effect of removing the scruples which were at present entertained against the measure, would have no objection to introduce such a clause on the third reading, and leave the House to deal with it.

The House divided on the motion, that the Bill be engrossed;—Ayes 91, Noes 18:—Majority 73.

List of the AYES.
Abercromby, hn. G. R. Bryan, G.
Aglionby, W. A. Burrell, Sir C.
Attwood, W. Busfield, W.
Attwood, M. Campbell, W. F.
Bannerman, A. Chalmers, P.
Barnard, E. G. Chapman, Sir M. L. C.
Barrington, Viscount Chester, H.
Barry, G. S. Chichester, J. P. B.
Bewes, T. Courtenay, P.
Bolling, W. Craig, W. G.
Brahazon, Sir W. Davies, Colonel
Brocklehurst, J. Dennistoun, J.
Brotherton, J. D'Israeli, B.
Dundas, F. Muskett, G. A.
Ellis, J. G'Brien, W. S.
Evans, W. Palmer, C. F.
Fort, J. Parker, J.
Freshficld, J. W. Pease, J.
Gibson, Tr. Protheroe, E.
Greenaway, C. Pryme, G.
Grimsditch, T. Rice, E. R.
Hall, B. Rice, right hon. T. S.
Handley, H. Rickford, W.
Harvey, D. W. Roche, W.
Hector, C. J. Rolleston, L.
Hindley, C. Round, J.
Hope, G. W. Salwey, Colonel
Horsman, E. Sinclair, Sir G.
Howard, P. H. Strickland, Sir G.
Hughes, W. B. Strutt, E.
Hume, J. Surrey, Earl of
Mutton, R. Talbot, J. H.
Inglis, Sir R. H. Thornley, T.
Jephson, C. D. O. Turner, E.
Jervis, S. Vigors, N. A.
Kirk, P. Villiers, C. P.
Lister, E. C. Wakley, T.
Lockhart, A. M. Wallace, R.
Lynch, A. H. White, A.
Mackenzie, T. Wilkins, W.
Macleod, R. Williams, W.
Mahon, Viscount Williams, W. A.
Marshall, W. Wood, G. W.
Marsland, H. Young, J.
Maule, W. H. TELLERS.
Milnes, R. M. Talfourd, Sergeant
Murray, rt. hon. J. A. Praed, W. M.
List of the NOES.
Bateson, Sir R. Pringle, A.
Buller, Sir J. Y. Round, C. G.
Conolly, E. Sugden, rt. hon. Sir E.
Gillon, W. D. Turner, W.
Grote, C. Warburton, H.
Halford, H. Wood, Colone T.
Hawkes, T. Wood, Thomas
Heathcote, Sir W.
Humphery, J. TELLERS.
Jervis, J. Goulburn, H.
Mackenzie, W. F. Shaw, F.
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