CUSTODY OF INFANTS. (Hansard, 12 June 1839)

§ Sir E. Sugden
said, that pursuant to the notice he had given, he rose to move, that this and the following clauses be expunged. Having, on former occasions, dwelt on the merits of this bill at some length, there were doubtless but few Members in the House who were not aware of the respective grounds which were taken by his hon. and learned friend in reference to this subject; it would be therefore unnecessary for him to occupy the time of the House more than would be required to go over the main points of the question. The other clauses, in point of fact, although the same in substance, were different in form to the former bill. The first clause which he opposed provided, Whenever any court, or judge should, upon the return of a writ of habeas corpus, issued at the instance of the father of any infant or infants, order such infant or infants to be delivered to such father by the mother, it should be lawful for such court or judge to provide by such order for the access of the mother to such infants. And the next clause said, that The Lord Chancellor, the Master of the Rolls, and the Vice-Chancellor in England, or the Lord Chancellor and the Master of the Rolls in Ireland, respectively, might, upon hearing the petition of the mother of any infant, being in the sole custody and control of the father 160 thereof, or of any person by his authority, if he should see fit, make order for the access of the petitioner to such infant, and if such infant should be within the age of seven years, to make order that such infant should be delivered to and remain in the custody of the petitioner until attaining such age. Now, the objection he had to these clauses rested upon principle. He believed the operation of this bill, if passed in its present shape, would be to reduce the obligations of marriage, and would thereby prove detrimental to the best interests of married women and their offspring. The committee, upon reflection, must agree with him in the opinion, that if facilities were given to separations, as would be the result of this bill, those separations must ultimately lead to divorces, with all their attendant evils. Though there were some hardships in the existing law as to mothers, in this respect, still there was no country in the world in which married women had so complete a protection, as that afforded them by the general laws of this country, and he would have the committee be cautious, lest, while it pretended to take care of their interests, it did not relax the protection to which they were already entitled. Under the present law, parents, mothers especially, had a great inducement, from the natural love and affection they bore to their children, to put up with many petty trifling differences and annoyances which there were no means of remedying, because the marriage tie remained unbroken: the children formed the common link which bound the parties together. But this bill would lead to collision of interests between the father and mother, as regarded their children, and, in many cases, separations, followed by divorces, would ensue, simply because of the facilities afforded mothers of indulging their natural love, by access to their off spring. The law of England wisely was, that the right of the custody of the children was vested in the father, and that law was consonant with the laws of a higher authority: why, then, should the Legislature interfere? There might be, and he should not deny it, numerous cases in which that law operated with hardship upon mothers, but the Legislature was bound to look to the welfare of married women as a class, and not to have regard to individual cases. If a child were taken from the father for seven years, as proposed by the bill, who was to maintain and educate the child? The balance of mischief 161 was against the provisions of the bill, and though the evils of the present system were to a certain extent pressing, still those evils would be better corrected by the tone and morals of society, than by any law that could be devised. If this bill passed, though it might afford relief in some cases, yet it would create difficulties a hundredfold, from which families never could extricate themselves. With regard to the uext clause, giving authority in these matters to courts of equity, he must say, it would be a great evil, for, with the pressure of business before those courts, this new jurisdiction would lead to a denial of justice to suitors in equity. He therefore hoped the committee would not support these clauses. The right hon. and learned Gentleman concluded by moving, that all the clauses, after the first, be omitted from the bill.

§ Mr. Sergeant Talfourd
entirely approved of the course which had been adopted by the right hon. Gentleman, because he made his opposition one of principle not of detail. The law of England had hitherto interfered only on one side, but that was ever on the stronger. The law of Scotland gave to the Court of Session the power of giving the custody of infants to their mothers. But in England, when the Court of Chancery interfered, it was ever on the prayer of the father, but never on that of the mother. The right hon. and learned Gentleman said, that the judges of the land were opposed to the clause, but he (Mr. Sergeant Talfourd) did not believe it. All he asked was, that when the whole case was before the court, it should have the power of mitigating the lot of the mother, and of giving a qualified order that the mother might have access to her child.

§ Mr. Langdale
thought the greatest misfortune that could befal any woman was to be separated from her husband. Indeed, so sensibly did women feel this, that it was with the most painful suffering they ever consented to such a step. It would, in his opinion, be a far better course, if the parties would suffer the first ebullition of disagreement to subside, and try, if, by degrees, they could not make their dispositions suit to each other. Opposed as he was to the principle of divorce altogether, he could not become a party to any legislative measure for separating man and wife. The greatest evil of all was the condition in which poor children were 162 placed, who were innocent parties. The primary object of a bill of this sort ought to be the care of the children whom the parents were separated from. Now, the present bill did not make a proper provision of this nature. Seven years was not a sufficiently long time for the mother to have the care of her children, particularly if they were females. It would be much better to leave them with the father altogether, than place them under the mother's care for so short a time.

Mr. Cowper
said, that he thought the power and control over the children ought to be in the hands of the judges of the land, rather than with the father, who might be the offending party.

List of the AYES.
Aglionby, H. A.	Leader, J. T.
Aglionby, Major	Lynch, A. H.
Alsager, Capt.	Mackenzie, T.
Archbold, R.	Macleod, R.
Baines, E.	Marsland, H.
Baring, F. T.	Molesworth, Sir W.
Barnard, E. G.	Morris, D.
Bewes, T.	O'Connell, M. J.
Bodkin, J. J.	Palmer, C. F.
Bridgeman, H.	Pigot, D. R.
Buller, C.	Pryme, G.
Busfeild, W.	Rice, Right Hon. T.S.
Cayley, E. S.	Rolfe, Sir R. M.
Collier, J.	Salwey, Colonel
Ellis, W.	Smith, R. V.
Ewart, W.	Stock, Dr.
Finch, F.	Thorneley, T.
Gibson, T. N.	Vigors, N. A.
G rattan, H.	Villiers, Hon. C. P.
Hawes, B.	Wakley, T.
Hector, C. J.	Williams, W.
Herbert, Hon. S.	Williams, W. A.
Hobhouse, T. B.	Wilmington, H. J.
Hughes, W. B.	TELLERS.
Hutt, W.	Talfourd, Sergeant
Jervis, J.	Cowper, W. F.

List of the NOES.
Broadley, H.	Litton, E.
Burr, H.	Hollock, Sir F.
Christopher, R. A.	Richards, R.
Coote, Sir C. H.	Warburton, H.
Dalrymple, Sir A.	TELLERS.
Goulburn, Rt. Hon. H.	Sugden, Sir E.
Hodgson, R.	Langdale, Hon. C.