§ Order for Second Reading read.
§ Sir W. JOYNSON-HICKSI beg to move, "That the Bill be now read a Second time."
This has become almost a hardy annual. It has been before the House now for five or six years in succession. It has passed this House and passed another place, and I think it receives general support. Its object is to legitimise those children who are born out of wedlock if the parents subsequently marry. There is a very strong feeling that this should be the case, and the Government have come to the conclusion that the Measure is in the interests of the well-being of the people of the country. The first Clause simply makes legitimate the offspring of an illegitimate union, provided the parents subsequently marry, as from the date of the marriage. There is a Sub-section, which is the only subject of controversy in the Bill, that a child born of an adulterous union is not permitted to be legitimated. There is, I know, difference of opinion in regard to that Clause, but feeling is so strong against children who arc the result of an adulterous union being made legitimate that the Bill, I am certain, would not have any speedy passage through the House, and would not get through another place if this Clause had not been inserted. I think there are grounds, particularly the ground of religious feeling, which cause me to say it is right to include this Sub-section. After all, the House of Commons cannot, and it would be very wrong, indeed, if it did disregard the religious feeling of the country, and there is very strong religious feeling in regard to this point. 319 Of course it will be open to Members in Committee to debate the Sub-section, but I am going to ask the House to let the Bill pass with this Sub-section in it. The Clause is so determined upon by the religious feeling of the country, which we must respect, that if it were not in the Bill I am certain it would not be possible to pass it this Session. It has passed through this House two or three times and now, at the end of five or six years, I hope the House will allow it to pass.
In Clause 3 we deal with the question of property. When an illegitimate child has been made legitimate he will be legitimate for all purposes. He will be entitled to succeed, on the intestacy of his father or his new relations, to property, and he himself will have relations to whom his property may go if he dies intestate.Under the present law if an illegitimate man dies intestate, his property goes to the Crown, because he has no relations at all. Under the existing law the illegitimate child has no legal relations, and therefore there is no one to whom his property could possibly go if he dies intestate. Under the provisions of the Bill, therefore, he becomes fully legitimate with the exception of one point. That is to say, if his new legal relations die intestate, he will share with the legitimate children of the marriage, and if he himself dies intestate, instead of his property being swept away and going to the Crown it will go to his legitimate relations.
There is only one other Clause with which I need trouble the House, that is the question of honours. On full consideration I hope the House will agree that we have done right in that respect, that legitimation should not extend to hereditary honours. There are, of course, two sides to that question, but on the whole it would be a very serious thing indeed. Let me submit one illustration. Here is a man who has a hereditary title. He has an illegitimate son. He has not married, and he has brothers who are looking forward to succeeding to the title. If it were possible, by permitting that man to marry the mother of his illegitimate child, perhaps on his deathbed, if this Clause were not in the Bill, that child would be made legitimate for the purpose of succeeding to his hereditary honour, and I think on the whole the House will 320 agree that that would not be right, because the honour is not his to leave. His property is his own to leave, and he can do what is called the right thing, the honest thing, by his legitimate son by marrying the mother and making the son legitimate for the purposes of property. But I think the House will agree that it would not be right that we should in that way make it legitimate for the purpose of succeeding to hereditary honours. The Bill is very short and very clear. Anyone who has read it will agree that it is not what is sometimes called confused legal jargon.It sets out the new proposals very clearly. I hope we may at last have the privilege of placing the Bill, which has long been demanded throughout the country, on the Statute Book.
§ Mr. MITCHELL BANKSThis Bill will be welcomed with sympathy in all quarters of the House. We realise that it is a commonplace to say that if heaven visits the sins of the fathers upon the children, at any rate it is not for the fathers themselves to go out of their way to make that visitation more serious. But no Members of the House will receive the Bill with a greater degree of approbation than those who happen to be members of the Catholic Church, which for centuries past as, in its canon law, proclaimed these humane principles which are only to-day conceded by the Parliament of England. Everyone remembers that more than 600 years ago the Bishops of the Catholic Church asked the Barons of England to agree to the terms of the Canon Law, and received the famous answer which was the mcdieval equivalent of, "My right hon. Friend does not see his way to proposing legislation this Session." If an institution which has so often been denounced for its reactionary tendencies as the Catholic Church gets an opportunity once in 600 years of saying, "I told you so," I do not suppose anyone will grudge it that satisfaction.
Even now we are not as up-to-date, from a humane point of view, in this Bill as the Canon Law of the Church, and I desire to make a few observations on Sub-section (2) of Clause 1, which is perhaps the most important matter in the whole Measure. I do not know whether there should really be any limitations imposed at all, because after all, the object of the Bill is to give parents an opportunity, by matrimony, of redeeming 321 their children from the consequence of what is ex hypothesi a sin, whether it be the sin of adultery or one perhaps less serious. But if there is to be a proviso, I hope the Committee will consider the claims of the Canon Law. The Canon Law allows you to look, when you are considering whether the parties might or might not be married, not only to the date of the birth, but to any date back to the date of conception. Observe the strange consequences that arise if the date of birth is the only time at which you are entitled to look. You have John Smith, who is living with Mary Brown, and while he is living with her she becomes with child. Before the child is born he marries Kate Robinson, then Kate dies, and he cannot repair his fault by marrying Mary and making the child legitimate because under this Clause it was born at a time when he was married to a third party. Yet in that case there was no adulterous intercourse at all, and the child is not the result of an adulterous union. I think that is just the kind of case for which provision should be made. Here is another case. John Smith is married, and he commits adultery with Mary Brown and she conceives. Then the wife dies. Under this Clause he can marry Mary and legitimise the child, though in fact he committed adultery, and the child is the result of an adulterous union. Such cases will arise so long as you do not take the more logical, more moral and more humane test of the canon law for the purpose of deciding whether the parents were or were not free to marry, either at the date of birth or the date of conception. If there is to be a proviso I hope the Committee will not decide as the barons did 600 years ago. but will consider the canon law of the ancient church which, in my submission, is less anomalous and fairer than the Sub-section of Clause 1 of the Bill.
§ Mr. HARNEYI agree with a great deal the last speaker has said, and I think the Home Secretary was quite right when he pointed out that the only controversial Clause is the one that has just been referred to. The Home Secretary put it as a justification for making an exception, when one or other of the parents is married at the time, that the Church will not countenance in any way an adulterous union. That is open to the 322 two answers which have just been given us. There is no reason why at the date when the child is born one or other of the parents might not be married, though at the date of the union they were both free. There is the other which has been put by the last speaker. It might well be that the intercourse was adulterous, and at the time the child was born the parties were free. So either way you look at it it is an entirely anomalous Clause. But I should like to go a little deeper. I am strongly of opinion that the Bill with this Clause in it will be practically useless for the purpose all of us have in mind. Look at the categories, broadly, into which these unfortunate illegitimate children fall. Take an illegitimate child the result of promiscuous intercourse. What good is the Bill to that child? These people never meet again, so as far as that class of children are concerned, you might as well not pass the Bill at all.
Take children born from the intercourse that comes about from a young man and girl walking out. The Bill does harm there. At present there is a limited period within which the man has to make the girl an honest woman or not do so at all. There is the pressure of the parents, affection is still there, and in the great bulk of cases the man does the right thing. But the Bill says, "Young man, do not hurry, you have years and years—not months—within which to make her an honest girl." Then comes along the devil's advocate and says to him, "I will wait till I get older. I will wait until I fall in for some money." Time goes on, affection weakens, new ties arise, and the result of the Bill will be that many young fellows who now are forced by the urgency of the limited period to do the right thing will take advantage of the extended period and do the wrong thing.
Take the third category—and it is in that category that are found all the illustrations which have turned humane peoples' minds to the introduction of the Bill at all. Take the husband or wife whose wife or husband is a convict, a lunatic, a drunkard, a person with whom it is impossible to live, but who is not in the position to get a divorce. Alliances are contracted there, children are born and are brought up respectably and decently and not until after years do they discover the stigma of 323 illegitimacy. That is the real class whom, if the Bill is to be of any use, it must benefit, and it is the very class that is excluded. I respect, as much as the Home Secretary—and no one is more diligent in trying to do the right thing —the reverence we all pay to the Church.
7.0 p.m.
I happen to be a Roman Catholic like the last speaker. What is the Church objection? The Church says, "We will not recognise in any way, or condone in any way an adulterous union," but without the Clause the Bill says we condone fornication. If you are going to condone fornication for the sake of the child, why not also condone adultery for the sake of the child? If you are going to be theologically logical, why not say you cannot touch the subject at all? Because if we legalise the result of this immoral intercourse,we recognise the immoral intercourse, and cannot do it. The Bill without the Clause says, "We do recognise the immoral intercourse," and when the immoral intercourse has added to it the breach of the civil duty, which is the difference between adultery and fornication, it seems to me an impossible position to take up. The truth is, you are not condoning fornication; you are not condoning adultery, but what you are doing is this. You are saying, "Whatever the sins of the parents, here is a poor child, perfectly innocent, brought up in the world with a brand upon it, deprived of civil privileges." If, therefore, you are going to relieve the innocent children from the civil disabilities and from the social stigma that attaches to them, why are you going to say, "Child, though your parents did wrong, you are to be relieved is the wrong happened to be only fornication." It is a distinction that a common sense man cannot tolerate. I respect the Church, but I have a contempt for ecclesiastical pedantry. That is the ordinary style of argument which has been brought against us. When one hears the style of argument used in the other House, it makes one almost thank God that he is not a theologian. One of the arguments put forward was this—
§ Mr. SPEAKERIt is well known that we do not reply here to speeches made in another place.
§ Mr. HARNEYOne only learns the Rules of this House by breaking them. I will not pursue it any further. For these reasons, while, of course, I shall support the Bill, I do trust that when it comes to the Committee, the Home Secretary, or whoever is conducting it through, will not too strongly oppose the ecclesiastical view to what I put forward as being the practical, the intelligent and the man-in-the-street view. We, really, are not dealing now with questions of theology at all. We are faced with the very heartrending fact that there are children in the world who go through life suffering disabilities which we say they ought not to suffer, and it is futile to look back and say, "You, child, ought to be free, because though we dislike what your parents did, we do not very much dislike it ; but you children ought not to be free, because if we dislike what your parents did, we dislike it a bit more than the other."
§ Sir H. SLESSERI speak with great diffidence for this reason, that I want to make it quite plain that in what I am going to say I am speaking entirely for myself. I do not consider that this Measure is at all a party Measure. On previous occasions, when the matter was discussed in another place, two members of the Labour Government expressed different views on the same matter. I can only say how the matter appeals to me. I think that the omission which was made by the hon. and learned Gentleman the Member for Swindon (Mr. Banks) in his account of the Canon Law was this, that we have in this country to-day, by secular legislation, divorce; and divorce produces a state of affairs in which marriages take place recognised by the State following on adulterous intercourse such as is guarded against under this Bill. As I understand, however, this second Sub-section is necessitated by that possibility. Consider adulterous intercourse and legitimation where divorce may subsequently happen. One has to take into consideration that some recognition must be given to the fact that you may get a case where, first of all, the man seduces the wife of another, subsequently there is a divorce, and then there is a child, and lastly these people become married. All those cases, I understand, are guarded against in this particular Sub-section.
325 Therefore, it is not quite right to take the Canon Law simpliciter in this matter, because the Canon Law does not accept the view that marriage is dissoluble by divorce at all. I agree that this discussion to-day represents a great triumph for the Canon Law. thoroughly and heartily sympathise with what the hon. Member said. It may not he generally recognised that it was in the time of Henry III, when the last occasion occurred, apart from this particular Measure, when the matter came to be discussed. The Bishops came down with a specific proposal of legitimation. The barons of that time, representing the Common Law, being extremely suspicious of all suggestions coming from civilians and canonists, refused to allow legitimation in England, because it bad been proposed by the canonists. It was very much in the same way as happens in this Parliament. When an excellent suggestion comes from this side of the House, the other side think it their duty to vote against it. To-day we are admitting by this Bill that the canonists were right and the common lawyers were wrong. I think those who speak for the canonists should have something to say in these matters of theology. An hon. Member who has spoken says this is not a theological question. Theology must have some province left where it can work, and if it be not allowed to work in the province of marriage and. legitimacy, what province is there left? I think that the exact voids here suggested in Sub-section (2) are a little too wide. I see another set of words was suggested in another place which would be to the effect that, instead of the words here inserted, the words should be
Provided that, at the time of the birth, or at some time during the period of ten calendar months preceding the birth of the illegitimate person, the father and mother of such person could, lawfully have married with one another." [This is to be found in the Codex Juris Canonice Canon 1116.]That would cover the case of divorce to which I have referred. That would exactly represent, as I understand it, the Canon Law position on the matter. On the other hand, one does not want to jeopardise this Bill at this time, and these words are very much the same in substance. These words were accepted 326 in the Bill in another place last year as a substitute for the words proposed.
§ Mr. BANKSI do not know whether the hon. and learned Member quite apprehended. The substance of the Canon Law which I regarded as important, was that it permits you to look at any date, either birth or conception, which ever is more favourable to the point of view of the child.
§ Sir H. SLESSERThat must be taken in conjunction with the fact that now you can obtain marriage after divorce; persons who brought about the divorce by seducing one of the spouses and became married.
§ Sir W. JOYNSON-HICKSI ask the hon. and learned Gentleman whether that really increases the facilities for divorce? I want to avoid that.
§ Sir H. SLESSERPerhaps I am not very clear. I am saying that is a reason why this Clause should remain in this Bill. For that reason I have argued against the hon. and learned Member for Swindon (Mr. Banks). I say you have to regard the fact of this possibility, and therefore words in the Bill or similar words, in my view, are necessary.
§ Mr. BANKSThe whole point is this. The case the hon. Member puts of one of the spouses committing adultery, getting a divorce and afterwards legitimating a child, is the very case that under this Clause could happen, and I am only asking that, if you are going to permit that loophole, you should be able to consider the date most favourable to the child.
§ Sir H. SLESSERI am sure if it could happen under the Clause, the Home Secretary would stiffen up the Clause so that it could not happen. I have been wondering what the view of the Canon Law would have been on this matter if divorce had been allowed by the Canon Law. I believe the Canon Law would have taken the view which the right hon. Gentleman the Home Secretary takes of this matter. There was a ease in which this problem arose when a clerk in Minor Orders which permitted marriage married a woman who had already borne him a son, and he applied that the general principle of legitimation should apply in this case. They said "No." Although normally the 327 mere fact of wrongful intercourse will not make the child suffer, yet when the party does something over and beyond that, something which is otherwise wrong, such as the person being in orders in that case, the Canon Law decided that he could not legitimate his son. It is the nearest analogy I could find.
§ Sir H. SLESSERThe date of the decision is 1321. It is argued by John of Ayton, cited by Repertorium Canonicum (1680). It was decided when the Canon Law was flourishing as it never flourished before. Personally, I think there is every justification for the Sub-section.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee.