CUSTODY OF INFANTS. (Hansard, 25 April 1839)

§ Mr. Sergeant Talfourd

rose for the purpose of asking permission of the House to bring in a bill founded upon the principle of that bill which was introduced last Session of Parliament, and which passed the House of Commons with very large majorities, and which was only thrown out by accident in the other House of Parliament by a majority of two. The bill bore the title technically of "The Custody of Infants Bill," the principle of which was to introduce some mitigation into the construction which had been recently put upon the law relating to parent and child, husband and wife; by which law was given to the husband all control over the children, exclusive of the wife, whatever might have been his misconduct, or whatever might be the claim of an innocent mother. By that law she was excluded all access to her child, which thus worked injustice in silence, for the injuries of the innocent in those cases seldom came to light. If the present bill were merely a transcript of the bill of last Session, supported, as that measure was, by a majority of this House, among some of whom were men the last 550 to be charged with feelings of immorality, he should have felt it unnecessary to intrude upon the House a single word; but as the provisions of the present bill would differ in some important respects from those of the bill last year, and as it was made a charge against him on the former occasion that he had abstained from entering into a statement of his measure, he would ask permission of the House to be allowed to state what was the nature of those provisions. The first class of cases with which he would deal was that in which an innocent and injured wife, having sued for a dissolution of the marriage, had procured a sentence in her favour from a competent court. It would hardly be believed, that when the husband had been found guilty of adultery and cruelty, and a sentence of divorce had been for that reason pronounced, the children which the wife had by him should be placed under his absolute control, and that he should thus find means of revenging himself on her for vindicating her womanly right. His proposal was, that in these cases, the Consistory Court, and the Court of Arches, when they pronounced sentence of divorce on the prayer of the wife, should have power to dispose of the custody of the children—that they should declare who should take care of the children; and that where the husband should be convicted of adultery, these courts might, if they should think fit, but not otherwise, give the custody of the children to the wife, and allot a sum for maintenance, with a view of providing for the due care and education of the children. The second class of cases to which his bill referred, was that in which the husband should proceed in a court of law on a motion by force of the writ of habeas corpus to recover possession of the children. The case of the King and Rekell had, in his opinion, placed a forced construction on an Act which was intended only for the delivery of persons under immediate restraint, when they applied that Act to the case of a young child at the mother's breast; but the judges had, though reluctantly, placed such a construction on the Act; and his proposal was, that when the judge should be called upon to make an order, and when he would have all the facts of the case before him, to take the child from the custody of the mother, and to deliver it to the father, he should have power, if he should think 551 fit, to make such order as to him should seem meet for the access of the mother to her offspring. It was said of the former bill, that the fifteen judges held up their thirty hands against it; but if they should hold up their thirty hands against his present proposal, they would hold them up against what they had repeatedly said they wished the power to do. The third proposition included in his bill was, where the husband and the wife were living apart. He had not, in the present bill, given the power of making any order to a common law judge, which had been objected to by the noble and learned Lord (Lord Lyndhurst) who had done him the honour of taking charge of the bill last year in the other House; but he now proposed to give a power to the Lord Chancellor, the Vice-Chancellor, and the Master of the Rolls, in England, or to the Lord Chancellor and the Master of the Rolls in Ireland, on the petition of the mother, to order her, if they should so think fit, free access to the child; and that where the child was within the age of seven years, she should have the sole custody till it should attain that age. This was simply placing the mother of legitimate children in the same situation as the mother of a bastard child was placed. These were the main provisions of the bill he now wished to introduce; but to those he would add, and he was willing to avow it, that he did not intend to give the judge power to make any order in any case in which the mother had been in any way convicted of adultery. A strong feeling had been entertained against a clause giving such a power, and he thought that such indulgence should be conceded to general opinion, that the Legislature should not even be supposed to hold in small abhorrence the crime of adultery, and he would rather that some one instance of hardship should go unremedied than that the tone of morality should be relaxed. An objection which had been urged against the bill of last year could not be brought forward against his present plan, for litigation would not be multiplied, and it would not be necessary to set the law, with all its long machinery, in motion. In the two first classes of cases reached by the present Bill, all the facts would be before the judge when he would be called upon to decide, and upon those facts already before him he would determine whether he would or would not 552 grant the application. As, however, the former bill had been objected to by its friends, who said it did nothing because it did not do enough, and as the objection had been strangely echoed by its enemies, who said, that it did too much unless it did more, he had this year endeavoured to enlarge the sympathies of the one, if he could not conciliate the good opinion of the other, by rendering it more simple, and, at the same time, more comprehensive, than the former bill. It would seem, however, from the conduct of those who were the patrons of domestic tyranny, that the Bill of last year would not have been wholly ineffectual. He had been subject, as every one who embarked in such a cause must be, to scandal and to slander; for this he cared not, but he would proceed so long as he had the honour of being supported by so respectable a majority of the Members of that House in his endeavour to procure a mitigation of the lot of innocent and injured mothers, and of giving something more than empty rights to that sex which had now a just cause of complaint.