HC Deb 26 March 1884 vol 286 cc811-42

Order for Second Reading read.


, in moving that the Bill be now read the second time, said, that its terms had been carefully drafted.


, in seconding the Motion, said, the Bill which he had the honour of laying before the House dealt with a difficult and complicated question; but he hoped to be able to convince the House that its principles were sound. The old law of England, in dealing with the rights of parents over their children, started from the doctrine of the absolute supremacy of the husband and father; and, although that condition of things had been somewhat modified, there remained serious hardships, the law being still harsh and unjust to the claims of mothers. The Common Law considered husband and wife to be one; but it did so on the basis of giving the husband all that was his own and all that was his wife's, leaving her nothing, and that principle, which had been consistently applied as regarded the property, was also applied in the family, as regarded the respective rights of the parents to the custody, guardianship, and control of their children. The father was hold to be sole guardian during his lifetime, and was entitled to the control of the child for all purposes, until it approached the ago of majority. He could also, after his death, dictate the future custody of the child's person and its education, by his power of appointing a testamentary guardian, and the Courts of Law adopted the principle that the child must be brought up in the religion to which the father belonged. The wife had no rights during the father's lifetime; and even after his death a testamentary guardian excluded her altogether from having any control over the person, or any share in the education, of her child. She had, moreover, no right, even when she survived the father, and no testamentary guardian had been appointed by him, of herself appointing a guardian by will. It was only in very extreme cases that the Courts of Law—it was till the passing of the Judicature Act the Court of Chancery—interfered for the protection of the children, and removed them from the custody of a father whose conduct was so flagrantly immoral, or otherwise prejudicial to the best interests of the child, that it seemed impossible to leave the child any longer under his guardianship. He ought to add that the preference which the law showed to the father was so great that even an agreement made before marriage as regarded the religion in which the child should be brought up was held to be null and unenforceable, as derogating from paternal rights which could not be forfeited by him. This state of things began by degrees to shock the advancing sentiments of mankind; and an Art was passed—the 2 & 3 Vict.— which gave to the mother certain rights as regarded a child under seven years of age. That Act was followed by another in 1873, extending the law still further. This Act, he believed, was brought in by the hon. Member for Cambridge Borough (Mr. W. Fowler), and he (Mr. Bryce) thought the country and the House were much indebted to him. The effect of the latter Act—36 Vict, c. 12—was to provide that it should be lawful for the High Court of Chancery, upon the petition of the mother, to order that she should have access to the infant at such times, and subject to such regulations, as the Court should deem proper; or that the infant should be delivered into her custody until it had reached 16 years of age, such custody being subject to certain regulations for the access of the father or guardian. The Act also did away with the ancient rule that the father could not divest himself of his right to the custody of the child by any agreement made on separation. The law had remained on that footing since 1873, subject to the extensive and beneficial provisions in the Act of 1857—the Act which established the Court of Divorce arid Matrimonial Causes. That Act gave a very large discretion indeed to that Court, in providing for the custody of children, whenever it pronounced a decree, and he did not propose in the Bill to interfere in any way with its jurisdiction, since it did not seem to him to require amendment or enlargement. But even after the passing of the Acts of 1857 and 1873, there still remained very serious hardships in, the law. It still failed to recognize the claims of mothers, and in constantly preferring the father often produced injury to the child. In the first place, the mother, under the construction which the Courts had placed upon the Act of 1873, was usually excluded from the custody of her child, except when such grave misconduct could be made out against the father as might affect the child injuriously. Secondly, a guardian appointed by the father was the guardian of the child to the exclusion of the mother, and there was no provision for making the mother the guardian of her child on the death of the father. Even if the father had omitted to appoint a guardian, the mother did not hold that position, and the father could, out of spite, appoint a guardian who was hostile to the mother, although he might have neglected the child, and she be wholly without blame. Thirdly, when the mother survived the father, she could not appoint a guardian to take care of her child after her death, even when no guardian had been appointed by the father. He need not remind the House of the hardships which had occurred under this law, in which grave injustice and much mental suffering had been inflicted on mothers. Even Judges had remarked upon it as being partial and cruel, when mothers appealed to them, whom they found themselves unable to help. They disapproved and regretted the law, but it was none the less their duty to administer it. Some time ago there was a ease of a lady of some eminence in the musical world, who had been obliged to separate from her husband on account of his cruelty. Ono night she was absent singing at a concert; and, when she returned, she found that her two children had boon carried off by her husband during her absence, and it was weeks before her agents succeeded in discovering the children, and the younger one, when found, had been so ill-cared for that its life was in danger. Again, there was a case not long ago in Scotland—and perhaps the Scottish law in this respect was even harsher than the English—where a young lady was so ill-treated by her husband that she had to leave him. Shortly afterwards she gave birth to a child, and when it was only three weeks old the husband carried it off, and she was unable to recover it. Another lady in Scotland, ho believed, was compelled to escape from the jurisdiction of the Scotch Courts with her child, in order that her husband, from whom she had boon separated, should not take the infant from her. Cases like these showed how much ground mothers had for invoking the aid of the House. The Bill might be regarded as a corollary to the Married Women's Property Act, which had an important bearing upon the subject. The principle of that Act was, that the husband and wife were to have equal rights in regard to property. It surely followed that the right of the wife to a share in the guardianship of her children—a right far more prized by women than any right of property—should also be recognized by the law. Indeed, with- out such a Bill as he now proposed, the Married Woman's Property Act might be rendered null and void, as the power possessed by the husband, over the persons of his children, might enable him to compel a wife to bow to his will in all questions affecting property. The husband now possessed a terrible engine, of oppression, which he could bring to bear upon the wife, and thus nullify the benevolent intentions of the Legislature. He had spoken chiefly of England and Ireland, but he believed that in these points the law of Scotland was substantially the same as that of England. There were similar powers vested in the Courts; but there was no Act in Scotland which corresponded to the English Act of 1873. So far as there was a difference, Scotch law was somewhat harsher than English; and the Scottish Courts seemed either to possess a narrower discretion than those of England, or to regard the rights of the father with a still warmer favour. The Scotch Court of Session held that cruelty and brutality on the part of the husband were no reasons for taking the custody of the children from him, and giving them to the wife. They said that nothing less than the father's adultery was sufficient to set up such a claim for transference of the husband's rights, and one Judge had even declared that adultery might not always form a sufficient ground. He would now shortly explain the leading amendments which the Bill before the House would introduce into the law. The 2nd clause of the measure provided that the parents of an infant, during the continuance of their married life, should be the child's joint guardians. This provision was necessary in order to negative the presumption of the Courts in favour of the husband. It was only by laying down such a principle as that that we could get rid of the consequences of that old doctrine of the law which favoured the father at the expense of the mother. Nothing less appeared sufficient to give the Courts that full discretion which they ought to have, in order to guard the interests of the children in, the first place, and, in the next, the interests of the parents as persons on a footing of equality. The 3rd clause provided that on the death of either parent, the survivor should be the child's guardian. The 4th clause dealt with the question of guardianship, and laid down that the surviving parent might appoint a testamentary guardian, provided that the child were still unmarried at the time the power of the guardian was to take effect. Where no guardian had been appointed by the surviving parent, a guardian appointed by the parent first deceased would act. To both such guardians, however, would be preferred a guardian selected by the two parents jointly in their lifetime. It was further provided that where the child, on the death of the father, became entitled to any real or personal estate, the father, if he died first, might appoint a guardian for such estate; and the reason of this provision was that it might frequently happen that a woman, although she would be the best personal guardian of her child, might not be able to manage the business affairs of a large estate. This provision, however, would not interfere with the mother's right of custody in regard to the infant's person. The 5th clause dealt with the case of parents living separately from one another, and the question arising of the control of the child or of its religious training; and this clause enacted that, on any such question arising, the Courts should have power to make such order as they thought fit regarding the custody or religion of the infant. This clause extended the discretion of the Court to infants over 16, thus going beyond the Act of 1873; and, taken in conjunction with Section 2, the clause very largely increased the power of the Court in regulating the custody of a child. According to the present law, the father was preferred to the mother in any question of guardianship, unless a strong case were made out against him. The Court would, however, under the Bill, regard both parents as equal, and endeavour, while thinking first of what was best for the child, to do full justice between, the parents. The general effect of the Bill, therefore, was to place the father and mother on a footing of perfect equality as regarded the guardianship of the child, by extending the power of the Courts, and getting rid of the legal presumption in favour of the father. The discretion of the Court would be exercised with equity and fairness as between both parents. There would, of course, be nothing to prevent either parent from making the child a ward of Court; and, in fact, it would treat the natural guardians of the child as though they were merely testamentary guardians. He had thought it safer to introduce no special provisions as to religion, as questions of that kind could be safely left to be settled by the Courts when they arose; and the other clauses of the Bill did not call for special mention, inasmuch as they merely extended the operation of the measure to Scotland, and provided for saving the jurisdiction now exercised by the Courts. There, was, however, an important question as to the Courts by whom the powers conferred by the Bill should be exercised. The Bill restricted them to the High Courts of Justice in England and Ireland, or any Division thereof, and to the Court of Session in Scotland. A strong case might, no doubt, be made out for giving jurisdiction to the Inferior Courts, since this would make the benefits of the Bill more generally accessible to the poorer classes. It was not easy to say, however, to what Inferior Courts in England such jurisdiction could properly be intrusted. There was, however, a feeling in Scotland for giving them to the Sheriff Courts of that country, Courts which occupied a more important position than the Inferior Courts in England; and if hon. Members from Scotland wished to extend the jurisdiction to the Sheriff Courts, he would be inclined to give his assent to the proposition. Without attempting to anticipate all the objections that might be made to the measure, he would notice one or two. It might be said that the Bill ought to have enabled either parent to appoint a guardian to act on his or her behalf after such parent's death jointly with the surviving parent. On that point, he thought that the surviving parent was the proper guardian of the child, and that it might lead to much unpleasantness if a third person had power to interfere with the surviving parent in bringing up the child. Some might hold it a graver objection to the Bill that where two people lived together one must rule; that the father ought to be at the head and have control of his family, the wife yielding to him; and the usual illustration was given that if two people rode together one must ride behind. But this answer was that the old system of giving the husband supreme power over the child had not worked well in the past; and he believed that nothing could be more conducive to harmony than that husband and wife should be placed in a position of perfect equality before the law, the former recognizing and respecting the rights of the latter. When women had had the power over their children, they generally used that power well—as well, on the whole, as fathers did. So far from his proposal being likely to breed discord in families, he was sure it would improve the relations between husband and wife, by removing from him an engine of tyranny, and from her a motive for attaining her ends by indirect methods. It must be remembered that the provisions of this measure would only be needed where the parties did not agree. Where they lived together and loved one another, all would go smoothly; where affection had ceased, the Bill would apply the principles of justice. He submitted this measure to the House as an attempt to deal on broad and simple principles with an admittedly difficult question—one which was among the most difficult any Reformer could touch. He recommended it on the ground that it conformed to the whole tendency of recent legislation, and that it protected women to a greater extent than had ever been done formerly. Nothing could be more harsh to women than the present law. In conclusion, he would appeal for support to hon. Members who remembered and acknowledged their obligations to the tender care and loving society of their mothers; to those who, as fathers, could realize what a loss it would be if their own children were deprived of the instruction and sympathy of a mother; and to all hon. Members, whatever their own personal experience or associations might be, he appealed to do justice to a class of persons not directly represented in the House. The Constitution had refused a seat in that House to women. It had also refused them the electoral franchise. There were many in that House, and he was one of them, who thought the Constitution was wisely framed when it made that refusal. But the refusal was made in the confidence that a Parliament of men, elected by men, would care for the interests and feelings of women not less than their own, and would protect those whose voices could not be raised within these walls. He trusted the House would recognize this sacred duty, and in pro- ceeding to better secure the welfare of children would also grant to mothers those rights which they most valued, and in which their peace and happiness was most involved.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Hopwood.)


, in rising to move that the Bill be read a second time that day six months, said, he did so because it appeared to him that the measure was faulty in principle, and that the remedy it proposed was wholly incommensurate with the evil which had been stated. If he might epitomize his argument in a somewhat personal manner, he would venture to say that he was a married man himself, and that he was deeply sensible of the advantages of being so; but he did not covet the further distinction of being one of the last of the species. For if this Bill should ever become law, it would, coupled with the legislation which had its origin in a great measure in the efforts of his hon. and learned Friend the Member for Lincoln (Mr. Hinde Palmer), make the position of married men one which called for such great sympathy that he thought few would be found to follow their inauspicious example. He would ask the House to consider for a moment what the law now was, and what were really the evils of the law; because he admitted, quite as much as his hon. Friend (Mr. Bryce), that the law required serious amendment. At present the law rested upon two bases. First of all there was the Judge-made law. As regards that, his hon. Friend had accurately stated his case. As far as the decisions of the Judges had gone, it was not the practice of the Courts to interfere with the custody of children as between husband and wife to the extent of taking them from the husband, except, generally speaking, in cases of gross immorality. But having said this, he parted company with his hon. Friend, for he did not agree with him as to the effect of Mr. Justice Talfourd's Act, and of the Statute introduced by his hon. Friend below him (Mr. W. Fowler). It had been laid down that the object of those Acts was to extend the power of the Court, and to enable it to interpose not only in cases of immorality, but also in cases when the father was making an unfair and unprincipled use of his power to interfere with the comfort and happiness of the wife. The defect was that his hon. Friend's Statute applied only to girls up to the age of 16; in his opinion, it ought to be applicable also between the age of 16 and 21. He thought likewise that the law might be altered in this further respect. It might direct that the Court should take into consideration not only the acts of the parents, but also the wishes and views of a child who was above the age of 16. There was a recent case where girls of 16 had been taken away from their mother without their views on the point being either consulted or acted upon; and he admitted that in this instance the law operated both harshly and unjustly. There was another matter which seriously required alteration, and in regard to which he went further than his hon. and learned Friend the Member for the Tower Hamlets, He could conceive no reason why, after the death of the father, the mother should not be the guardian of the children; and if the Bill were limited to giving the mother the rights of a guardian, in that event he would support it. The father now appointed a person in his will as guardian of his children—it might be, no doubt, a perfectly competent person—but the will, perhaps, did not come into operation for years, and there was a tendency in men, as they grew older, of deteriorating in their morals. In this way it had often happened that the surviving mother was put aside for a person who, originally competent, had, in the course of time, become unfitted to be a guardian. He thought that the mother should have the right to appoint the guardian in the same way as the father, and able to give all the rights of guardian to her appointee. The great objection that he had to the Bill under consideration was that it would establish duality of control in the household—a thing to be avoided. Because husbands and wives occasionally quarrelled his hon. Friend would introduce into every household a most fertile source of dispute. Duality of control and of leadership was often to be regretted in other matters; but it would be especially bad within the domestic circle. Take the case of a spendthrift son. The father was the best judge of what would be good for him, and perhaps would conclude that the best thing would be to send the youth abroad, that he might be away from the influence of bad companions, and have a chance of beginning a new life. But if the present Bill were passed into law, the mother, probably worked upon by Master Scapegrace, would instantly come forward and assert that she had an equal right to be consulted in the matter. If they were rich people the result would be a Chancery suit, and the boy would be made a ward of Court; but if they happened to be poor people there would be perpetual wrangling and misery. For the sake of some fancied philosophical uniformity they were asked to pass a Bill which would lead to constant disputes. What he suggested, however, was that instead of passing a Bill like this, Parliament should give the Court a more extended power, so that it might not be fettered by the old decisions, but might be enabled to intervene with effect as between the father, the mother, and the offspring. If he saw any process by which the Bill could be made to carry out his views he would not move its rejection; but it seemed to him it was based entirely on another theory and principle; these were avowed by the promoters of the Bill; and, therefore, believing the Bill to be a bad one, he must ask the House to reject it.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Ince.)

Question proposed, "That the word 'now' stand part of the Question."


wished to ask the hon. Member in charge of the Bill, whether, when it readied the Committee stage, a clause could not be introduced dealing with the subject of mixed marriages?


said, that most hon. Members would concur in feeling with the hon. Member who moved the second reading of the Bill that in 99 cases out of 100 the widow was the proper guardian of children after the death of the father. The Bill was framed for the purpose, and would probably have the effect of remedying what were, no doubt, grievous hardships in certain cases; but the House ought carefully to consider whether the operation of the Bill might not give rise to other hardships and grievances quite as great. The question of religion had, perhaps, been too much ignored in the debate. Under the Bill as framed, guardianship was given to both parents, with remainder to the survivor. A case might be put in which two persons marrying when young might be then of the same faith—say, Protestants; and the father, dying when a son was of school age, might wish that son to be sent to a public school, such as Eton or Harrow. The father might have no suspicion of any difficulty which might arise after his death; and he, being estopped from appointing a testamentary guardian by this measure, which makes the widow guardian ipso facto, the widow might, in six months, become a Roman Catholic, and might say—"My boy, instead of going to Eton or Harrow, shall go to Oscott." Was the House anxious to facilitate such a proceeding by legislation? The Bill did not give the Courts power to interfere in such a case. Unless a distinct assurance was given that the Bill might be amended so as to enable a Court to decide a question of that kind, not only in cases in which parents were separated, but also in eases in which there had been a change of religion on the part of the surviving parent, which were, perhaps, the most painful and difficult cases that could arise, he could not vote for the second reading of the Bill; and therefore he should like to hear before the Division some expression of opinion on this point from either the Government or the hon. Member in charge of the Bill.


said, he believed that the Bill omitted to give the surviving parent power to appoint a testamentary guardian; but confessed that he could not interpret the clause. He thought that the clause gave the Court too much power, and that the Court should be bound to choose the religion of the parents or one of them; otherwise it might direct the children of Christians to be brought up as Mahommedans. While, however, ho recognized that there were points in which the Bill would require amendment in Committee, he should support the second reading, because the evil which it sought to remedy was a very serious one.


said, he had always advocated changes in the law which tended to improve the position of women; and the Act that had been alluded to, which he carried 11 years ago, for improving the position of women and children in cases in which the conduct of the father had been unsatisfactory to the Court, had worked extremely well, much good having resulted from the knowledge of the fact that the Court was able to interfere. He sympathized entirely with the objects of the Bill, and agreed with much that had been said as to the hardships that were suffered; but he had great doubt as to the remedy proposed, whether it would not do more harm than good. The Bill started with the idea that the husband and the wife were equal, a theory which was against Scripture and reason. The man ought to be the head of the household, and, although he might use his power badly, unfortunately that could not be altered by law. The law could interfere only in extreme eases to prevent extreme evils; and in ordinary cases we must submit to the jurisdiction that was according to nature. He was saying that which was repugnant to many ladies whom he esteemed; but there were other ladies whom ho equally esteemed who agreed with him. They were perfectly willing to be under that natural influence which he believed was according to reason. His difficulty with regard to the Bill was founded on the 2nd clause, which declared that there should be two authorities in the household, equal and co-ordinate. That was the very way to create dissensions and disputes without end; and if his hon. Friend insisted upon the clause the Court must be brought in to settle those disputes. As the law now stood, the husband and wife had to settle their own disputes. Therefore, if they gave the woman the same authority as the man, provision must be made for cases in which the two could not agree. No such provision was made by the Bill under discussion. The only case referred to in Clause 5 was where there was a separation; therefore, if the Bill was road a second time, he should demand some change with regard to the clause. But the main question which they had to decide was whether it was a right principle to say that there ought to be this double authority in the family. He greatly doubted it, and he was afraid, if his hon. Friend divided the House, that he should, very reluctantly, have to vote against him. He freely admitted that nothing could exceed the gross in- justice of the existing law; but he did not think that the Bill would remedy the evil. With regard to the second part of the Bill, the hon. Member for Berkshire (Mr. Walter) had pointed out one of the difficulties with which it failed to deal. A child, it was true, might be brought up by the mother in a manner which was not intended by the father during his lifetime; but they could not deal with that matter by law. A man who died in early life could not be blamed for what happened to his children after his death. He would not attempt to discuss the numerous questions which arose out of the Bill. All he wished to do was to express his opinion that they were entering upon a most dangerous proceeding in attempting to create a double control in the family. He had much sympathy with those who had been injured by the existing law; but he was not prepared to say that the hardships which arose from what was called the supremacy of the man in his household could be removed by Act of Parliament. The man and the woman could not be made equal by any Act of Parliament in the world. It seemed to him that nature and reason pointed out that the man ought to be supreme, and that he should be the master of his household.


said, he was not indisposed to take the view of the hon. Member who had just spoken (Mr. W. Fowler), and confessed it appeared to him, like many other Bills dealing with domestic relations, to be a Bill calculated to create a good deal more discord than it could heal. It would establish a dual jurisdiction in the family; but he held that the father and husband should be the head of the family. He should have the liability and control over the children incident to such a position. To the wife's influence he was not one to object. Let it be exercised to the full if she was a sensible woman, and if she was not a sensible woman let the husband use his authority. With such a Bill law, the position would be this—the children not only appealing to the mother for the exorcise of her influence, but appealing directly to her control, she having a separate authority to which she could resort against the wishes of the father; and when they had to deal with the question of the maintenance, education, and marriage, and the entering into employment by the children, the trouble and discord the dual control would create would be enormous. Then the Bill provided that in all cases the wife should be the guardian, whether the deceased husband wished it or not, thus taking away the testamentary power the husband now had. In the course of his (Mr. Gregory's) professional experience he found the wife generally was appointed guardian, but not sole guardian. It was generally considered desirable to give her some assistance, to which she could resort for advice and support. No doubt, it was desirable generally that the wife should be a guardian; but it was not desirable that she should be solo guardian, and the husband should by no means be ousted from his testamentary power to appoint. Where there was no such testamentary power exercised, then he would suggest the wife should be guardian according to law. But a wife might marry again, and she very often did, and her second husband might not be the most agreeable step-father. He might have a family of his own, and his influence with his wife might be antagonistic to the interests of the children of the first marriage. Then, again, Clause 5 was very defective. Not a word did it contain about the maintenance of the children, or their destination in life. Who was to exercise control over that? But, without further discussing the details, he maintained that the principle of the Bill was defective. The establishment of a direct control by the wife would materially interfere with the welfare and harmony of the family; it would, by the application of the children, bring husband and wife into direct antagonism; and the Bill was unnecessary for the object said to be in view — namely, the appointment of the wife or survivor to be guardian.


, in supporting the second reading, said, in ordinary households the husband and wife did not disagree in matters relating to their children, and he should be sorry to think it was the habit of cither to dictate to the other. All that his hon. Friend sought to do was to give expression to what was the actual state of things; for, said he, so long as the husband and wife agree without quarrelling, the law should not interfere. The hon. Member for Cambridge (Mr. W. Fowler) very truly said they could not make a man and woman equal and happy together by Act of Parliament; nor did this Bill make any such attempt—it was only where there were disputes that the Bill would come into operation. The clause which had been so much discussed was only inserted in order to give the Court the power of appointing the guardian, which it did not now possess. He appealed to every hon. Member who had read the Bill, and ho asked them how, except in cases of dispute, it would affect the ordinary relationship of husband and wife? He cordially supported the Bill, and he thought the hon. Member had earned the gratitude of a very largo number of wives. He had himself quite recently received a letter from a lady in a provincial town, whom he did not know, imploring him to support the Bill, and giving instances of great hardship which the Bill would meet. His own experience was in the same direction, he could not conceive any more beneficial exercise of the jurisdiction of that House than to pass such measures as would give effect to what were the true moral obligations of husband and wife, and enable the mother to obtain the rights which were her due.


said, he hoped if the House read the Bill a second time it would be on the understanding that it contained some few grains of wheat in an immense quantity of chaff. That, however, was not a good principle to proceed upon. It was proposed by Clause 1 to abolish the power which the husband had over his son, and to call in a co-ordinate authority. If at any time: a father said that his son was to go to Eton, and the mother said that he should go to Winchester, a Court of Law was to be appealed to in order to decide whether the will of the father or of the mother was to prevail. But until we should get female Judges on the Bench—a thing to which we wore fast coming—the Judges, in nine cases out of ten, would side with the father. It was proposed to lay down the principle of equality, where there ought to be none, in the custody of the children. So much during the lifetime of the parents. But, by the 2nd clause, they were going to deprive the father of the right to appoint a testamentary guardian, so that in the case of a Roman Catholic gentleman married to a Protestant wife, if the father wished that his son should he sent to Oscott, the mother, on the death of her husband, might have the boy brought up at Eton, and vice versâ. It was a monstrous thing to enable a wife to say that her husband's wishes with respect to the education of his son should not be fulfilled. If the House were to read the Bill a second time in compliment to the hon. Gentleman, who was a very useful Member, he had no objection; but the bettor course would be to reject the Bill.


said, he intended to vote for the second reading of the Bill, which he considered a most useful measure. It might be necessary to amend it in some points; yet, looking at it as it stood, he intended to vote for it. The essential principle running through, the Bill was to be found in the 2nd and 3rd clauses, and he did not think that any reasonable man could object to that principle. The hon. Member for Hastings (Mr. Ince) had said that in Scotland the law was more harsh than in England; yet the hon. Member had wound up by declaring that if they merely assimilated the law of Scotland to that of England everything would be put right. He (Mr. Williamson) sympathized very much with the remark made by the hon. Gentleman who introduced the Bill, that the question of the Courts exercising jurisdiction in connection with the Bill was one worthy of further consideration; and he sincerely hoped that in Scotland the Sheriff Courts would have power given to them. He thought it would be quite possible to draft a clause which would carry out that object. He deeply sympathized with the object of the Bill, and would vote for it.


said, that everyone must admit that the hon. Member opposite had brought forward a question of the greatest social interest, and that there were many points upon which the law might be amended. The hon. Member who had moved the rejection of the Bill admitted that, but pointed out with great and persuasive force that the method proposed was open to grave objection. There were, no doubt, cases of great hardship under the existing law; but the way to remedy that was to give our Courts power to deal with them as they arose, and not to introduce into every home in the country elements of discord and disturbance. He thought the hon. Member who introduced the Bill was the only one who desired that it should be passed in its present form. The 2nd clause was a very startling one, and when the hon. Member, at the close of his speech, appealed to them by the memory of their mothers to support the Bill, and spoke of it as a message of peace, he could not have been thinking of what the 2nd clause meant. Let them take any household. Did it not work, not by the operation of law, but of domestic affection and common sense? For the sake of a small minority of wives the promoters of this Bill had introduced provisions which might prove the source of widespread unhappiness. If the measure were passed, husbands and wives, who would otherwise settle their little differences at home, would be tempted to appeal to an Act of Parliament. If a wife who was not gifted with that robust and vigorous sense which he was glad to recognize in the great majority of the sex were told that she could back her opinion in opposition to her husband by referring to an Act of Parliament passed at the instigation of a benevolent and unmarried Member of the House of Commons, which declared that she was as good a guardian as her mate, they must not be surprised if the disturbing elements existing in some households already gained greater prominence. Had the hon. Member for the Tower Hamlets (Mr. Bryce) thought out the problems involved in the 2nd section of the Bill? In ordinary cases the clause would be inoperative; and, therefore, so far as they were concerned, it was not wanted. But in the cases in which it would be operative, how was the wife to assert herself against her husband? By an appeal to the law; and thus the Bill would be a potent engine for the creation and manufacture of matrimonial quarrels instead of for their settlement. He deprecated as strongly as anyone could the conduct of a husband who, by his will, ejected his wife from the guardianship of her children after his death. In nine cases out of ten, however, a man nominated his wife the guardian of her children; but, with her sanction and by her desire, associated with her some other people to assist and guide her with advice. That sensible arrangement would be put an end to by the 3rd clause of this Bill, which proposed to enact that in future a wife who survived her husband should be the solo guardian of her children.


explained that the arrangement to which the right hon. and learned Gentleman referred could still be made under the 4th clause of the measure.


replied, that he could not understand how the 4th clause would enable a father to do alone what he could do at present—namely, associate with his wife wise and discreet friends in the guardianship of his children, He did not think that sufficient attention had been paid by some hon. Members who had spoken to the illustration of the manner in which the Act would work which had been given by the hon. Member for Berkshire (Mr. Walter). That hon. Member referred to the operation of the Bill in cases of difference about religion. Had not a man who was a sincere Christian, but whoso wife was inclined to be an Infidel, a right to take some precautions with reference to the religious education of his children after his death? If the Bill were passed that right would practically be destroyed. Then, in regard to education, men of common sense believed that it was good for their sons to go to school; but some mothers were fond of keeping their boys at home. A man might be caused serious unhappiness by the thought that the instant his breath was out of his body his wife might set aside altogether the arrangements which he might have made for the education of his sons at a public school. These were some of the points which must be considered before the House should agree to read the Bill a second time. He was of opinion that it was desirable to amend the law by giving a wider discretion in a certain class of eases to our Courts; but that did not mean that he assented to the second reading of this Bill, to whoso methods and clauses he was opposed, He had the courage of his opinions, and he would unhesitatingly vote against the second reading.


said, he thought the author of the Bill, the hon. and learned Member for the Tower Hamlets (Mr. Bryce), was to be congratulated on the reception which the Bill had met, because the measure had elicited a general admission that the present law required amendment. It had been the desire of the promoters of the Bill to prevent litigation between husband and wife; and, consequently, the right of application to the Courts was only given by the Bill in cases of acute dispute, where the differences were irreconcilable, and had ended in the separation of the parties. It was asked who was to settle any differences between the joint guardians? They must settle it between themselves, doing what had to be done in the case of every partnership known to the law, for the law refused to interfere between partners whilst they continued to carry on business together, and so it should refuse to interfere between man and wife so long as they lived together. A little give-and-take must be employed, wherever business must be carried on; and, however high disputes might run, ultimately some modus vivendi, was usually arrived at, and it would be the same with married people under the present Bill. They would know that they had to live together, just as partners knew that they had to carry on business together. One great objection was that this Bill would be a fertile source of disputes and quarrel in conjugal life. That he denied. If he had thought that such a result was likely, he would not have taken any part in advocating it; but he believed that what would take place would be exactly the contrary. The Bill would not create any disputes or differences of opinion; and he ventured to say that, where unhappily they did exist already, and were settled by the exercise of the husband's last resource, his legal power, it left behind it a sense of bitterness and injustice in the wife's breast that was not calculated to do good. But if the wife knew that there was a better chance of the dispute being ended by a give-and-take arrangement, however the dispute might be made up, it would not leave behind it that sense of bitterness and injustice of the law which so often rankled in the hearts of married women. There seemed to be an idea in the speeches of several hon. Members who had spoken against the Bill that the wife had nothing to do with the children—that she was, in fact, altogether an outsider in this matter; and one hon. Gentleman had said that the idea that the wife should necessarily be guardian, if the survivor, was shocking. He (Mr. Horace Davey) could see nothing shocking in the fact of a wife, who survived her husband, being the guardian of her own children. The question between the supporters and opponents of the Bill was not a question of principle, but of degree; and he preferred his hon. and learned Friend's (Mr. Bryce's) way of remedying the defects of the existing law, which oven the opponents of the Bill admitted. It was more scientific, and more in accordance with the principles of legislation, that a principle should be laid down, and the Courts left to work it out to its natural consequences. If disputes unhappily arose during the lifetime of both parents, and if they came before the Court, they had now to be settled entirely on the assumption that the father's right alone must necessarily prevail, unless he had committed some grave misconduct and in equity had forfeited that right. What they desired to get, by the 2nd clause of this Bill, was that, if any dispute came before the Courts, it should be decided, not upon any presumption of absolute legal right on the part of cither parent, but solely on the consideration of the best interests of the children, without any presumption in favour of cither parent. The hon. Member for Cambridge Borough (Mr. W. Fowler) had stated that ho was in favour of preserving the natural conditions of husband and wife, and the supremacy of the husband. But they considered that the present law did not, as a matter of fact, adequately recognize the natural conditions, and the supporters of the Bill desired to bring the law into harmony with nature. Another element to be considered was who had the power of the purse-strings. In many instances, especially since the Married Women's Property Act, it was the wife who provided the ways and means; and, in such a case, it was hard that she should have no power. This 2nd clause was intended, not to introduce any new clement of discord or litigation, but to lay down a principle to guide the Courts in case of litigation becoming necessary. By the 4th clause the husband might, by his will, appoint guardians to manage the estate for his children jointly with his wife. It had been said that there was a want of clearness about the 4th clause; but, if that was really the case, it could be considered and amended in Committee. In regard to the children of mixed marriages, it had been thought that, under the Bill as at present framed, the Court would have ample power to decide questions as to which religion such children should be brought up in, with duo regard to their own interest and the rights of both parents. It would be a pity to bind the Court absolutely to enforce contracts between the parents; but it would be better that it should have power to give effect wholly or partially to such contracts, or to decline doing so, the governing principle being the benefit of the infants. The hon. Member for Berkshire (Mr. Walter) had put a case of great difficulty, and it was one of great difficulty at the present time. Such cases had come under his (Mr. Horace Davey's) own observation, and they were among the most painful with which the Courts had to deal. A husband and wife, for example, were both Protestants. The husband died, leaving his wife surviving, and, having had confidence in her, he appointed her guardian of his infant children. The wife might turn a Roman Catholic. The Court, at present, under such circumstances, might be compelled to take away the children from the custody of the Roman Catholic mother. It had no option; because it had been, decided that the father had an absolute right, without any regard whatever to the mother, to say in what religion his children should be brought up. The law said that the children were to be brought up in his religion. That was, he thought, a great hardship. Looking at it as a practical question, it seemed to him that the present state of the law was a great evil, and that it would be a less evil for the children to be brought up as Roman Catholics, by a Roman Catholic mother, than to deprive them of the mother's care, and have them brought up, it mght be by strangers, in order to make I them Protestants, with the chance that, when they came to years of discretion and rejoined their mother, the religious impressions they had received might be wiped out of their minds. He did not deny that the case put by the hon. Member for Berkshire was one of great hardship, which would require to be very carefully considered; but there was hardship under the existing law; and they ought, if possible, to avoid producing fresh grievances and hardships. His hon. and learned Friend (Mr. Bryce) and he would, however, when the Bill got into Committee, give the most careful consideration to any Amendments that might be proposed from any quarter, with a view to deal with what ho might call the religious part of that subject. He was far from denying that the Bill might not be advantageously amended in Committee, or that some of the points which had been alluded to in that debate wore not well worthy of attention; but he thought the measure was one to which the House might fairly agree to give a second reading.


said, he agreed with a great deal that had boon said by his right hon. and learned Friend the Member for the University of Dublin (Mr. Gibson) in regard to that Bill. It went much too far for the object in view, and it was based, in the mind of the hon. Member who had brought it forward, on the fallacy that the husband and wife were to be exactly co-equal in regard to their children, and that the control now vested in the father alone was to be placed jointly in the father and mother. But almost every Member who had spoken had admitted that the law as it at present stood required alteration, and he was so anxious that the law should, be amended on some points that he was disposed to allow the Bill to be road a second time in order that it might be fairly discussed and amended in Committee; but if it came down from the Committee in anything like its present shape ho could not support it. He hoped that the Government would take that matter into its own hands and bring forward such a measure upon it as would meet with general acceptance. The particular grievance that he wished to call attention to was the extreme hardship of the Scotch law. Take the two cases which had arisen in the Scottish Courts. In one it was proved to the satisfaction of the Lord Ordinary that the conduct of the husband was such that no woman could submit to. The Lord Ordinary found that there was considerable maltreatment, accompanied by conduct of a contumacious and overbearing character, which was calculated deeply to wound the feelings of the pursuer or any female of ordinary sensibility. But the Court refused the petition of the mother for the custody of the children, as the law would not take the children from the custody of their father unless it could be shown that the health, or life, or morals of the children would be endangered by remaining in the father's custody. That he considered was a very hard case. Again, a Scotch Court had held that although it had been sufficiently proved that the husband had committed a violent assault and inflicted serious injury on his wife by repeated blows with his clenched fist, and although for years previously his conduct towards her had been violent and unreasonable, the custody of his child could not be taken from him and given to the mother, although it was shown that her conduct throughout was exemplary and unimpeachable. He wished to ask the Lord Advocate whether that state of things was not to be altered, and whether he was in a position to state that some remedy would be applied in the case that had been brought to his notice? He quite agreed that this Bill went so far as to be productive of great inconvenience and disturbance in many a household where peace and happiness now existed; but he could not imagine that it would be necessary to go so far in the direction of disturbance in order to meet the cases he had mentioned to the House. He would vote for the Bill solely for the purpose of getting rid of the great hardships that had been referred to. He hoped, however, that in Committee it would be so modified as not to be a source of danger and disturbance to those households which were peaceful and happy.


said, this had been the most important interrogatory discussion he had been present at. Nearly every hon. Member who had addressed the House had put one or two questions to the Government. He would, therefore, ask one more question. He had come down to the House with the full intention of supporting the Bill, which dealt with a case of undoubted grievance. The House must not only consider the case of the father and the mother, but they must also consider the case of the child. What he wished to ask—and no doubt the Lord Advocate would be able to enlighten him—was this—"What would be the position of the child if these two legal guardians which this Bill appointed should differ?" He thought it had been admitted all through the discussion that the Bill was only needed to meet extreme cases. No doubt there were eases in which the power possessed by the man had been abused; but still the woman was not always an angel. He could imagine extreme cases of this kind occurring, and probably often among men not in the position in life of Members of the House. The woman might say to her husband, that now the law was in her favour she would not allow the child to be sent out to service or to work in a mill, or, in the case of the upper classes, interfering with regard to the choice of a school. What would become of the child in a dispute of that kind? That question, he thought, pointed to some power which should interfere in cases which, absolutely demanded it. He did not agree with the right hon. Gentleman opposite in thinking that the hon. Member who brought in the Bill should be asked to give it up in favour of the Government. Experience had shown that it was quite as easy for a private Member to pass a Bill as the Government. They need not, there-tore, be discouraged because the Bill was that of a private Member. They should go into Committee on the Bill with the determination to prevent such injustice and cruelly as had often been exercised by husbands over their wives through the affections of their children, and the House should take care that fresh cases of an extreme character should not crop up. It was quite possible they might settle the question, not by giving a dual authority, but by limiting considerably the authority of the husband who was guilty of unjust or cruel conduct.


said, that, while he was in favour of the second reading of the Bill, he was of opinion, unless it was altered in Committee, it would be productive of much mischief. If the Bill reached the Committee stage Irish Members would endeavour to provide that the agreements made for the religious education of children should be respected. Unless such an Amendment were inserted in the Bill he did not think he could continue to support it.


said, he concurred with the right hon. Gentleman in his desire that there should be some amendment of the law of Scotland in cases of this kind. No doubt cases of great hardship did occur in Scotland; but he did not feel that this measure had been dis- cussed sufficiently with reference to the whole population of the Kingdom. The speeches which had been made had reference almost exclusively to the upper and middle classes. He did not say a remedy should not be provided for those classes; yet he thought a Bill of this kind, which provided for the husband and wife having joint guardianship, might furnish a cause of discord among millions of the working classes, and that no such change was necessary to effect the object the hon. Gentleman had in view. He specially referred to the 4th clause of the Bill, where it was indicated that when a child became entitled to real or personal estate consequent on the death of the father the mother should be joint guardian of the estate of the child, and should continue in that capacity during her lifetime. Was it reasonable that the guardianship of the child and the estate of the child should be vested equally in the mother and in the guardian appointed by the father? The father might be the sole source from which the estate of the child was derived, and, in that case, if the mother should many after the decease of the father, where would the justice be of placing her influence under that of another man, and probably allow the estate which had boon left to the child by a former marriage to be misspent, and perhaps destroyed, by the influence of the guardian? He felt that this was a grave objection to this part of the Bill. By agreeing to pass the 2nd clause in the form in which it stood in the Bill, the House would introduce ground for discord in millions of happy homes of the working classes.


I rise to express, on the part of the Government, their willingness to assent to the second reading of this Bill, not because we regard the Bill as by any means perfect—very much the reverse in many respects—but because we believe that it would offer a fitting means and occasion for remedying defects which exist in the law of the three parts of the United Kingdom with respect to the guardianship and custody of children. I do not propose to go through all the clauses of the Bill; but I should like to point out in what respects it appears to me that this Bill, if it is not erroneous, demands very serious consideration, and, further, in what parts it affords a means of remedying existing evils. The 2nd clause of this Bill is very short, but I must point out that it covers two cases which are by no moans the same. It provides that the parents of an infant shall, during the continuance of their marriage, be its joint guardians. The clause as it stands would apply indifferently and without distinction to the case where the husband and wife were living together and to the case where they were living separately. Now, it appears to us that there is a very great distinction between those two cases, and that what may be fitting and proper for the one case may not be fitting and proper for the other; and I am bound to say, subject to the possibility of being convinced in Committee, that at this moment I am not satisfied of the necessity of any such enactment for the case where the husband and wife are living together. The authoritative explanation given by my hon. and learned Friend the Member for Christchurch (Mr. Horace Davey) of this part of the Bill has rather increased than diminished the difficulties which I felt on this point. It must have occurred to anyone on reading this Bill that there was something faulty or something wanting, as between the 2nd and the 5th clauses; because, if it was intended that the joint guardianship which is proposed to be given while the spouses are living together was to be effectual, you should have some means for making it effectual—some sanction, or some remedy—but there is nothing of the sort provided by the Bill. But my hon. and learned Friend has explained that that was not an undesigned omission, but that the 5th clause was intentionally left as it is—in short, that while he proposes to give a joint guardianship even when the spouses are living together, he docs not think it necessary that there should be any provision for legal intervention to give effect to that guardianship. The reasons he assigns for this omission are that things will probably work themselves out by the good sense of the husband and the wife who are living together. If that is so, where is the necessity or advantage of giving a joint guardianship while they are living together? I believe that in the great majority of cases, as long as they arc living together, and are getting on for better or worse, they can get on in regard to the children as well as in regard to anything else. It appears to me that if you provide that there should be a joint guardianship, and do not provide any means for making it effectual, the only result would be that the wife might feel that the law had given her a right without also giving a remedy. It therefore appears that if there is to be a joint guardianship while the spouses are living together, it is essential that there should be some provision for the intervention of a Court, and that to provide the intervention by a Court while they are living together would not be a benefit, but the reverse. We get into an entirely different region when the husband and wife are living separately, either voluntarily or under judicial authority, and it is in that case that I believe in England, and I think I may say certainly in Scotland, there is need for a remedy. I shall not go into the law of England in the absence of the Attorney General, who had meant to take part in this discussion, and who has been unavoidably obliged to leave; but I have not heard any challenge of the accuracy of the statement of the hon. Member for the Tower Hamlets (Mr. Bryce), in which he formulated the law of England as he understood it. He said that under the Act of 1873 the mother was excluded from the custody unless grave misconduct was made out against the father, He did not say exactly what was required to constitute grave misconduct on the part of the father; but I rather understand that something lighter would be enough to constitute misconduct in England than in Scotland. What I shall have to offer upon this point would, of course, apply à fortiori to Scotland, but would equally in principle apply to England. The right hon. Gentleman the Member for South-West Lancashire (Sir R. Assheton Cross) has quite correctly stated the law of Scotland on this matter. It has been decided that although there is a discretionary power vested in the Court, that discretion has become very much a matter of rule, and it is right that judicial discretion should be settled upon principles that can be known and understood; but it has this effect, that what is originally a discretion really comes in the end to be the application of a hard-and-fast rule. That hard-and-fast rule has gone the length in Scotland of being applied thus, that oven where the husband and wife are living separately under a decree of the Court on the ground of cruelty, the husband is entitled to the custody of the child, however young—it may be weeks or months old—unless it is shown that residence with the husband is likely to be injurious to its morals or health. That is upon the ground that there is a primary right in the husband to the child—a survival of the patria potestas of the Roman law. In such a case there is no consideration for the wife, who is the victim; but in so far as the parents are considered at all, the consideration is for the husband, who is the guilty spouse. The primary and governing consideration ought to be the welfare of the child, and where consideration for cither parent comes in, it ought to be subordinate and collateral to that. When the interests of the child would be indifferently subserved by giving it to one spouse or the other—and still more if the wife is the better custodian — she should have as good a right to it as the husband. When you have to consider between the husband and the wife, it should be the innocent and not the guilty, or, at all events, it should be open to the Court to take full view of all the considerations, and, other things being equal, to give the custody rather to the innocent than to the guilty spouse. I think it would be very easy, whatever view is taken of the other parts of the Bill, so to modify and amend it in Committee as to make provision for an improvement of the law in that very vital and important respect. There have been points of a more doubtful character mentioned, and I do not propose to go into them in detail or to defend the Bill as regards these points, but only to state the reasons why we assent to going into Committee. The 2nd clause provides that on the death of one of the parents the survivor shall be the guardian of the children. I take that to mean that the survivor shall be the sole guardian. That is a proposal open, certainly, to criticism, and it would demand very careful consideration. I should be disposed to say that the wife, if she was the survivor, should be a guardian; but it is quite another thing to say that she should be the sole guardian. And I may add that the provision is departed from when we come to the end of Clause 4, where, as regards property left by a husband to a child, while he is to be allowed to nominate a guardian, that guardian is not to have the sole administration even of the property left by the husband, but is only to come in jointly with the mother. It is one thing to say that the mother shall be a guardian, or the sole guardian, when the person of the child and its education and religious training are concerned; a totally different thing to provide that the law shall decline to allow a man to appoint such trustees to a particular part of his property as he may choose, because it happens that that property is left to his child. That does appear to me a very strong proposal, and it would require a great deal of argument to convince one that it is right. That matter of guardianship ought to be considered in Committee, and in that matter, too, with some amendment, the Bill could be turned to some useful purpose—probably, at all events, to the extent of providing that the wife should in all cases be a guardian. Clause 4 is quite consistent with the general scheme of the Bill; but, of course, if the criticisms which I have ventured to submit to the House upon the other proposals in Clauses 2 and 3 have any substance in them, then Clause 4 would either become unnecessary or require a good deal of modification. As regards Clause 5, if the House should come to the conclusion that while the husband and wife are living together there should be judicial intervention—which I am not at the moment satisfied would be a beneficial proposal—then Clause 5 would require to be extended to meet that case, otherwise you would have a law without a sanction, and a right without a remedy. There are various proposals of a minor character which I do not go into now. It is a very fair question whether there ought not to be a power given to apply in certain cases to an Inferior Court. There are other matters in this Bill, particularly in its application to Scotland, which would want a considerable deal of amendment. There is much of the definition and phraseology, and of the Interpretation Clauses, which is not very appropriate to the law of Scotland; but any discussion upon these would be more fitted for Committee. All that seems necessary to be said now is, that we think this Bill may be turned into a useful measure—it may be by excision to some extent, but, possibly also by some addition, and that we assent to the second reading, and hope the House will take the same view.


said, he thought that by the adoption of a process of excision and alteration in Committee this Bill might be made to effect a useful reform, He thought that a wife who survived her husband should, at the discretion of the Court, have more power than she at present possessed in determining what religion the children should be brought up. He hoped also that occasion would be taken to abolish the whole series of semi-obsolete kinds of guardianship which infested the English law, such as guardianship in socage, by nature, by nurture, and guardianship of the lord of the manor or the Archbishop. He should support the second reading of the Bill.


, in reply, begged to express his satisfaction at the tone of the discussion which had taken place, and the admission universally made that the present law was indefensible. Everyone had admitted that the Bill furnished the basis of useful legislation whereby the law might be amended. He was not pledged to any particular form which his Bill might take in the details of its clauses, and would, therefore, be content if the House would read it a second time and subsequently deal with it in Committee.


said, he objected to the principle laid down by the hon. and learned Member for Christchurch (Mr. Horace Davey) that when a mother changed her religion after her husband's death, she should be allowed to bring up the children in her newly-adopted faith. This Bill, which would bring discord into many happy homes, was promoted by an organization of strong-minded women, supported by weak-minded men, who held meetings, disseminated pamphlets, and wrote letters by the hundred. In many happy households now united they would by their pamphlets and letters stir up the wives to a neglect of their duty, and promote discord. It was perfectly clear to him that the Law of God declared that the husband should be supreme. Scripture said that, "The desire of the wife shall be to her husband, and he shall rule over her;" and, therefore, he had no belief in the equality of the sexes. The best wives did not wish to have the existing laws to be altered by Acts of Parliament and perversions of God's written Word.


said, that after the statement that his hon. Friend would place the details of the Bill in the hands of the Committee, he would not press his Amendment.

Question put.

The House divided:—Ayes 208; NOES 73: Majority 135.—(Div. List, No. 52.)

Main Question put, and agreed to.

Bill read a second time, and committed for Monday 7th April.