HL Deb 30 July 1838 vol 44 cc772-91
Lord Lyndhurston

more than one occasion had had the good fortune to submit to their Lordships' consideration questions connected with the great principles of humanity and justice, and many alterations of the law founded upon those principles—alterations which had met with the entire approbation of their Lordships; but he had never yet submitted to the House a question which he felt more deeply, or which he considered of more importance than that which was embodied in the bill the second reading of which he was about to move—the Custody of Infants Bill. The measure had been introduced into the other House of Parliament by an hon. and learned Friend of his (Lord Lyndhurst's), a Gentleman of great eloquence and high attainments; it had been most actively and most vigorously opposed by another hon. and learned Friend, who was distinguished for his great legal knowledge, and for the extraordinary acumen of his mind; and notwithstanding that active and legal opposition in every stage of the bill in the other House of Parliament, still the promoters of the measure succeeded in carrying it by very large majorities. It was under the sanction of the other House of Parliament, that he submitted the second reading of the bill to their Lordships' consideration. He had always felt it to be incumbent upon a Member of their Lordships' House, when he, proposed any alteration in the existing law of the land, to state most distinctly what the existing law was, what were the evils arising from that state of the law, and what was the remedy he proposed; and feeling that duty to be incumbent on him as a legislator, and as a Member of their Lordships' House, he should, as shortly and distinctly as was possible, state the law as it at present stood, the evils arising from it, and the remedy which by this bill he proposed. He was satisfied the House would go with him in thinking, that the evils were great, and he believed the only point on which a difference of opinion would arise would be as to the adequacy of the remedy. As the law now stood, the father of a chilld born in lawful wedlock was entitled to the entire and absolute control and custody of that child, and to exclude from any share in that control and custody the mother of that child. The mother might be the most virtuous woman that ever lived, amiable in her manners, fond and attached to her children; the father, on the other hand, might be profligate in character, brutal in manner, living in adultery, and yet would have the right under the existing law to the custody of the children of his marriage, to the exclusion of even access to them of his wife, their mother. Further than this, if the father availed himself of the law as it now stood, he might apply it to personal pecuniary objects, to the extortion of unjust concessions from the mother, and still have the right to bar her from all access to her children. Such was the state of the law as far as it related to legitimate children; the law in reference to illegitimate children was however wholly different. Now, in order that he might not be supposed to misstate the law in these respects, he conceived it to be his duty to call the attention of the House to some of the cases which had been quoted in the other House of Parliament by the hon. and learned Gentleman to whom he had already referred; these cases involved no point of a technical character, and being most interesting in their facts, he trusted they would be listened to with indulgence and patience. The first case to which he would refer was that of Mrs. Emanuel. That lady had married a French emigrant. She was before her marriage in possession of about 700l. a year, which on the marriage was settled to her own use, with certain contingencies. The husband received 2,000l., but not being satisfied with this settlement of the property, he persecuted his wife to make her will in his favour. She had the firmness to refuse. He then threatened to take her out of the kingdom, but this was barred by a covenant of the settlement. He next threatened to take her child, an infant scarcely five or six months old, out of the kingdom, and he succeeded in tearing the child away from its mother, and placing it in the custody and care of a hireling nurse. Application was made to the court on behalf of the wife for access to the child, and though the Court admitted that nothing could be more infamous or base than the motives by which the father had been actuated, still, as the mother had no right to interfere, as the father had hired a nurse as a substitute for the mother, and as the child was not suffering in health, the court could not interfere and afford the redress sought. The next case was that of Mrs. Skinner. In that case the husband and wife were separated in consequence of the barbarous usage of the husband, who was then living in adultery with a woman of the name of Delaval. The child, only six years of age, had previously been left, and properly left, with the mother; the husband, however, got possession of the child, and on the question being agitated in court (the child having in the mean time been delivered to the mistress of its father, who was then confined in Horseman ger-lane Gaol, where the child was carried to him day by day) the court said, that it had no power to interfere, and thus the child was wholly separated from its mother. That mother was of irreproachable character; her conduct had received no stigma of any kind; she was fondly attached to her child, and he (Lord Lyndhurst) left it to the House to conceive what must have been her sufferings, and to say whether, in contrasting her character and conduct with that of the husband, the law in that case was not harsh, cruel, unjust, and severe. But there was a third case—that of Mrs. M'Lellan. These parties were also separated. The cause of their separation did not appear. The child had been left with the mother, but possession was taken of it by the father, who sent it to school. The child was attacked with a scrofulous complaint, a disease of which two other children had died, and by persuasion of the governess the mother obtained possession of the child, in order to take care of and watch over it as only a mother could. On the application of the father to the court for the child, the court said they had no power to interfere, as the father had a full right to debar the mother from all access to the child. He, however, wished to refer to the language used by the learned judge (Mr. Justice Patteson) on that occasion. He said, "It did not appear that the child had been ill treated." What was the answer of the learned judge? He remarked that "there was a wide difference between the absence of all intentional cruelty and the devoted watchfulness and care of a mother, especially in a case like this, where, from the circumstance of her former children having suffered from the same complaint, the mother may be supposed to have earned the experience of what was best to be done." Such was the feeling of that wise, humane, and charitable judge, and still he was bound by law to restore the child to the person whom the father had named to receive it. Then came the case of "Ball v. Ball," which was a still more recent decision. In that case the father was living in adultery with another woman; the child, however, though left with the mother, was in the habit of visiting its father, and on one of those visits he took possession of it, and sent it to school without any notice to the mother what he had done with it. After a length of time the mother discovered where the child was placed, and made application to the court for its restoration, urging, that the terms of the separation had been, that she should have the custody of the child. That application was unsuccessful, and a second was made to the court in the alternative, that if the law did not permit the restoration of the child, the mother might, at least, have access to it. In answer to that application, what had been the language of the court? The Vice-Chancellor said, "I do not know that I have any authority to interfere. I do not know of any case similar to this, which would authorize my making the order sought in either alternative. If any can be found, I would most gladly adopt it; for, in a moral point of view, I know of no act more harsh or cruel than depriving a mother of proper intercourse with her child." It was clear that the learned judge in that case regretted that he could not accede to one of the two alternatives. Another and more recent case was that of Mrs. Greenhill, and that case was of this description:—She had three daughters, the eldest about six, and the youngest about two years of age. She was living with her children at Weymouth for the benefit of her health, when she received information that her husband was, and had been living in adultery with a female of the name of Graham for upwards of a year; she was astonished at the intelligence, and on consultation with her mother, and her friends, she was advised by them to apply to the Ecclesiastical Court for a divorce. What had then been the conduct of the husband? He sent his attorney to her and threatened that if she went on with the ecclesiastical suit, he would take the children from her. Mrs. Greenhill erroneously supposed that she had a right to retain possession of her children, and went on with her suit for a divorce. Subsequently, proceedings had taken place in the courts of Chancery and King's Bench, and it was there ultimately decided that the wife must not only deliver up the children, but that the husband had a right to debar the wife of all access to them. The judgment of the court was in these terms:—The Vice-Chancellor said, "That however bad and immoral Mr. Greenhill's conduct might he, unless that conduct was brought so under the notice of the children as to render it probable that their minds would be contaminated, the Court of Chancery had no authority to interfere with the common law right of the father, and that he had not the power to order that Mrs. Greenhill should even see her children as a matter of right." Here again was there a complete exclusion of the mother from all access to her offspring, with a manifest expression of regret by the court that it had not power otherwise to act in the matter. He had stated these cases for the purpose of proving the evils of the existing law. Had he succeeded in doing so? Did they not prove that a father, however immoral, profligate, and dissolute, had not only the exclusive right to the custody and possession of his children, but also the right to debar his wife, a woman of virtue and of irreproachable character, from even access to her children? If, then, he had made out a case of cruelty and oppression under the existing law, would their Lordships say, that some mitigation of the law in these respects was not necessary—that some change ought not to follow in order to mitigate its harshness, cruelty, and, he must add, injustice? It was not for him to describe the situation of a woman ardently and devotedly attached to her offspring under such circumstances as those the cases he had cited divulged; it was not for him to point out the harshness and cruelty of the law, which enabled a husband to make use of those very affections as a means of torture, to enable him to extort unjust concessions from his wife. Was the House prepared then, under these circumstances, to say that no alteration of the law in these respects ought to take place? The harshness and severity of the law were increased by the fact, that with the mother of an illegitimate child no person, not even the father, could interfere with her possession of her offspring; and yet the mother of legitimate offspring, the woman of irreproachable conduct and character, was by the law stripped of all control, and even access to her child. That being so, what was the alteration proposed by this bill; He had already said, that he thought the only valid objection to the bill would be, that it did not provide a remedy equal to the evils which existed. The bill did not ask that the child should be handed over to the mother, it did not encroach upon the rights of the father to the possession of the child, it did not interfere with his claims, but all the bill said was, that the father should not be judge in his own case; it did not entirely exclude the mother, but it said, let some judge of the superior courts decide whether or not the mother should be entitled to have access to her child—to what extent, to what degree, and under what circumstances and limits that access should be permitted. The bill, in fact, took the matter out of the hands of the father, and placed it in the hands of the independent judges of the highest tribunals of the country. He understood his noble and learned Friend opposite (Lord Brougham), whose powers of eloquence he viewed with, respect, intended to oppose this bill, but for what reason he was at a loss to know. He should therefore wait to hear his noble and learned Friend's arguments, as he was at a loss, he confessed, to guess what arguments could be urged with success against the measure. He knew it might be said, that cases of the description he had stated were but few, but even so, he maintained they were such as to call for the interposition of the Legislature. But how was it known that such cases were few in number? for though but few might come before the tribunals of the country, because the law was so clear, so distinct, and so well understood, that every woman would be told by her legal adviser, that it would be useless to apply to the court, for no court had power to relieve, and yet no one could tell how many women there were who now suffered in silence under the oppressions of this harsh and unjust law. Then he had been told, that this bill might lead to litigation; but that was no reason why the House should not interpose for the prevention of cruelty and oppression such as he had pointed out. He had heard and read (because there had been publications on this subject) that the measure would lead to much perjury. Doubtless, in every, case of conflicting rights, the courts were liable to witness the commission of the crime of perjury, but, he contended, that they would not be more so under this bill than by the law as it now stood. It had been said also, that this bill would encourage separation, because the wife was not now inclined to separate, because she might thereby lose the chance of protecting her child; but let the other side of the question be looked at, and then let it be remembered, to what tyranny and oppression, on the part of the husband, the existing law led. But it was idle for him to anticipate the arguments which might be urged against the bill. He had stated the evils, harsh, oppressive, and cruel, as they existed, and he had stated the remedy, the mildest remedy that could by possibility, be applied to evils of that description, By this bill he did not seek an interference with the rights of parties, but he wished for some rightminded, impartial man, to say to what extent a virtuous mother might be allowed to have intercourse with her children when separated from her husband. However scanty the remedy, provided by the bill for existing evils might be thought, still he hoped it would be thought a wise, humane, and necessary measure, He therefore moved their Lordships to agree to the second reading of this bill.

Lord Brougham

said, that a more painful task could not have fallen to him than that which his sense of duty now urged him to perform—namely, to oppose this bill. He did not say, it was a painful task, because it might be the most unpopular course he could take, for that consideration had never influenced him in the discharge of what he felt to be his duty; nor because the second reading had been proposed by his noble and learned Friend, however much he might approve of the motives and principles upon which he had brought forward the measure; sun because it had been so strongly recommended by one of his high station, who had filled the most eminent place in the law, that therefore he might be supposed to regard everything his noble and learned Friend, said, would deter him from taking an opposite line of conduct; but because of the subject itself, and because he felt the very great difficulty of shutting the ear to such pathetic topics as his noble and learned Friend had urged, and of steeling the bosom to the best and most natural feelings of mankind. He was ready to admit, with his noble and learned Friend, that the law was harsh and cruel in its operation on those cases which had been stated by him, and also, that their small number was no guarantee that many more did not exist which had never seen the light. Another difficulty which he had to contend with, was the prejudice which would naturally arise in route minds against the man who would seem to interfere with the generous purposes of his noble and learned Friend, for whoever did so, would be liable not only to be charged with hardness of heart, but unwillingness of mind to remove the defects and harshness of the existing law. He trusted, however, that he should clear himself from the justice of any such charge as applied to him. He admitted that the bill was passed through the other House with almost unexampled rapidity, and with wonderful majorities in its favour, but at the same time, there was very little legal authority in its support. The bill never had the advantage, which it was natural to expect it would have, of the support of the learned and experienced law officers of the Crown; he did not find that they bore any part in the debates on the bill; but, if they had any objection to it, they ought to have stated it, or if they approved of it, they should have said so. If, then, he could avoid opposing this bill, he had the strongest possible reasons for doing so, apart from the objectionable nature of the bill itself, which, while it professed to remove the existing evils of the law, would not meet them; it would apply itself only to a part of those evils, and it would open the door to such frightful changes in the whole of this country, and in the whole of the principles on which the law of husband and wife was founded—ay, and such innovations on those laws which had been hitherto regarded as the safeguard of families, and as securing the virtuousness of principle on which the education of children should be conducted, that he owned that he would not support it, if, by affording a remedy in instances of rare occurrence, a channel was to be opened through which the floods of immorality would be sure to overflow the character of the institution of marriage. His noble Friend had stated the evils of the present state of the law; he had shown how unjust the law with regard to the treatment and the custody of the offspring of the wife by the husband; he had shown how it had operated harshly on the wife; and he had pointed out instances in which that law might have entailed evil on the children, and then he contended that his bill must be accepted as a ready, because it would be a less evil than the evils pointed out. But there were many evils which the bill did not profess to remedy. Could anything be more harsh or cruel than that the wife's goods and chattels should be at the mercy of the husband, and that she might work and labour, and toil for an nit-kind father to support his family and children, while the husband repaid her with harshness and brutality, he all the time rioting and revelling in extravagance and dissipation, and squandering in the company of guilty paramours the produce of her industry? The law was silent to the complaints of such a woman, or if not silent, all it said was, that in the sweat of her brew she should eat her bread and not only so, but that in the sweat of her brow her husband should eat his bread, and spend the produce of her industry in insulting her by lavishing her property on his paramours. He had colourings and materials enough to make out a very strong case in illustration of the cruelty of the law, if he had the ability and genius of his noble and learned friend to pencill it and fill in the shadows. He knew that there were anomalies and a thousand contradictions in the marriage law; but the existence of those anomalies and contradictions should operate as so many warnings against the introduction of new anomalies and changes in that manage law; for being driven on the shoals of anomaly by the gales of their feelings and the tide of prejudice, they would be in danger of making shipwreck on the rock on which their, predecessors in legislation had split. Adultery was as much a crime in man as in woman; it was denounced by the laws of God in both, and equally reprobated by the laws of the land in principle, though not equally punished. If the wife made a slip and forfeited the allegiance to her husband which she swore when she took her marriage vow, an action for damages against her paramour might be instantly brought, and in that action the character of the woman was at immediate issue, although she was not prosecuted. The consequence not unfrequently was, that the character of a woman was sworn away; instances were known in which, by collusion between the husband and a pretended paramour, the character of the wife had been destroyed. All this could take place, and yet the wife had no defence; she was excluded from Westminster-hall, and, behind her back, by the principles of our jurisprudence her character was tried between the husband and the man called her paramour. But what was the case when the man was the guilty party? What legislation was there in favour of the wife? Did, the Woman feel no pang when she knew, that her husband committed adultery? Was not her pride, supposing her to have no feeling of a higher character, grievously touched? That feeling, he ventured to say, raged more furiously, if he might so speak, than all the pride which raged in the male sex, and made more havoc than among men, ay; a thousand times more than all the sentiments of honour, that ever could grate on man's heart. Was it then just, that in her sufferings she should have no remedy, no sufficient remedy but rather be left to the mockery and insult of her husband? The husband might pursue his course; he might refuse to live with his wife, unless she went to Doctors-commons and demanded a restitution of conjugal rights, which no woman of delicacy could well do. Again, if she wished for separation, she might get a divorce a mensâ et thoro, but she could not marry again. The husband, if he got a verdict in his favour, in the Ecclesiastical Court, would obtain almost as a matter of course a divorce from that House, which enabled him to marry again. Was the wife so treated? A wife had the greatest difficulty to obtain a separation in the case of adultery. There had been two eases only before that House in which shell relief had been granted, the one being a case in which incest had been proved, the present state of the law was such as to bring out a passive resistance on the part of the sex, which felt, that they were not properly represented in the Legislature. Upon the whole it was safer and better for society and the marriage state for the comforts of the parties, and; above all, for their issue, that the father should have uncontrolled care of that issue, than that control should be shared as a matter of right with the mother. Having shown, that the law was not more oppressive to the wife in this than in other cases, he now came to consider whether the remedy proposed for the alleged evil was appropriate, and whether, while calculated only to mitigate that evil in a slight degree, it was not, at the same time, calculated to introduce infinitely greater evils than those which were complained of. In the first place he contended, that the bill under consideration did not apply a remedy to the evil which was complained of. His noble and learned Friend had said, that as the law stood at present, a husband living in adultery, and of the most profligate habits, was entitled to the exclusive possession of, and dominion over, his children; Very well; but did the bill provide any remedy for such a state of things? Nothing of the sort. The bill said, let the husband have undivided dominion over the children, let him take them where he willed, let him contaminate them, by placing them in the society of the worst of persons, taken from the stews or from prisons—welcome to do all this, said the bill; only let the wife, by means of a judge's order, see the children occasionally. But that was no remedy for the evil which was alleged, for the argument of his noble and learned Friend that the children were contaminated by the profligacy of one of the parents, while the other had no means of counteracting the mischief. The bill provided no remedy for that; it provided no remedy for nine-tenths of the evils of the case, and for the remaining tenth they were to have a change in the law which would inevitably lead to the most extensive alterations in the relations of the married state. His noble and learned Friend had not stated quite correctly what the law of the Court of Chancery was in cases of this description, for when that court had the guardianship of children, if there was profligacy on the part of the father, the judge would take care, that the mother should have sufficient opportunities of seeing them. He thought the Chancellor, in the case which had been quoted by his noble and learned Friend, had been misreported, for he was made to say, that unless the child knew of the profligacy of its parent there could be no remedy for the evil which was complained of. But the Chancellor could have said no such thing, for the case of "Branford and Wellesley" and the case of "Westbrook and Shelley" were opposed to such a doctrine. That, however, was immaterial, and the worst part of the evil was untouched by this bill. In passing to the evils to which this bill was calculated to give rise, he felt bound to say a few words on the title of the measure, and anything more fraudulent than that title was, he could not conceive. The bill was entitled, "an act for providing for the more easy access of parents to their children." Their Lordships would observe, that the word used was "parents" not "parent"; but for what reason was the plural used? The father had already free and full access to his children at all times, and the title ought to have been "an act for enabling the wife when living separate from the husband, to have access to her children," for the husband was not considered by the bill. Now keeping in view the fact, that the law in all cases was favourable to the rights of the husband, let their Lordships look what was pro- vided by the bill. It provided, in the first place, that all cases of dispute in regard to children should come, not exclusively before the three equity judges, but that they should also be tried before any of the other fifteen judges.

Lord Lyndhurst

proposed to confine the jurisdiction in cases arising under this bill to the three equity judges.

Lord Brougham

said, that such a limitation took away one of the great objections to the measure. The judges when they were asked their opinions of the bill held up their thirty hands in deprecation of this part of the plan, and certainly the limitation which his noble and learned Friend proposed to make would remove one ground of complaint against the provisions of the measure. But what could their Lordships now think of the authority which his noble and learned Friend had given them in favour of the bill? The noble and learned Lord had stated, that it had gone through all its stages in the other House, with large majorities in its favour, and there had been as great majorities in favour of the jurisdiction of the whole eighteen judges as there had been in favour of any other part of the plan; yet his noble and learned Friend now gave up that portion of the bill as utterly untenable, and proposed to limit the number of judges to the three equity judges. Now, high as his respect was for the authority of the House of Commons, yet, when he found his noble and learned Friend giving up an important part of the measure which that House had sanctioned, he could not but feel that such a proceeding tended to weaken the confidence which he was willing to place in that assembly. Was this a trifling change which his noble and learned Friend proposed to make in the bill? Why, it was a change of the most sweeping description; for his noble and learned Friend proposed to diminish the number of judges before whom cases arising under the provisions of this bill were to be tried from eighteen to three. But what would be the effect of that change? By giving up fifteen judges, and leaving the whole causes to be tried by the leaving equity judges, his noble and learned Friend would introduce a great anomaly into the law, and create an evil of the most serious description. In the first place the three equity judges would have such an addition to their business, that they would be overloaded, and of all causes those relating to family quarrels regarding the custody of children were the longest and most complicated and most violently contested, because it was not money, but feelings that were concerned. Yet all those complicated causes were to be thrown upon the three equity judges. Then again, how did it happen that his noble and learned Friend confined his feelings to London and Westminster? Why did he not go into the provinces? This bill was confined to the mothers in the metropolis, and no consideration was given to Northumberland or to Cornwall, and to other distant parts of the Kingdom, for the alteration proposed would not allow causes relating to children to be tried at the assizes. It was only those mothers who were able to come up to Chancery who were to have a remedy for the evils which they complained of, in being separated from their children, and therefore there ought to have been another change in the title of the bill, and it ought to have been entitled an Act for enabling such wives only to apply to any of the three equity judges for permission to see their children. Again the bill would only allow the wife toties quoties to see her children, for she would have to go before the judge every time she wished to visit her offspring. Now, had their Lordships any idea of the nature of those causes which were tried in relation to the custody of children? They were of the most complicated and difficult kind, and ninety affidavits might be filed before an order was obtained. How was this to work? Could such a plan fail to increase the bitterness which existed, and would not each fresh application to the judge, while it gave rise to vast expense, tend only to embitter the feelings of the parents; But the carelessness with which the bill was framed, was truly remarkable. As it originally stood, a woman living in adultery would have had as easy access to her children as the most virtuous individual. That provision of the bill, however, had been altered, and a clause had been inserted, the provisions of which were not less mischievous, for, as the bill still stood, a woman caught in adultery could claim a right of access to her children; for cases of such a nature might happen, but which might, notwithstanding, be incapable of proof; and if not proved, then the bill would enable her to visit and associate with her children. He knew many cases where the act of adultery was certain, but where legal proof could not be given o the guilt of the wife, yet such a woman was to have a right to see her children by an application to one of the three judges appointed by the bill to take cognizance of cases relating to the custody of children. But what was the nature of the causes which would come before the three equity judges under the provisions of this bill? They were the most complicated and most difficult possible. The judge would have to go into all the previous history of the husband and wife. He would have to listen to all the statements which might be made by both parties; and to read the numerous affidavits which in causes of this description were usually filed, and in this manner go on a long and slippery way before he could arrive at any determination. But even when he had made up his mind on the merits of the case, he would then have to consider how often, at what time, and what place, and under what circumstances, the visits of the mother were to be made. What was to be the security, that the wife would not run away with the children? Would his noble and learned Friend send an officer of the court to be present at the interviews? No, his noble and learned Friend would not do so, because it would be said, that the presence of such an officer would prevent that familiar intercourse which might take place between the mother and child. But if there was to be no person, how would they prevent the mother from alienating the affections of the child from the father, from making representations tending to injure the father in the estimation of the child, and thus sowing the seeds of dissension and misery in the family? But all this complicated form of trial was to be gone through for one interview, and the same long and difficult process was to take place every month perhaps, or at least at every time the mother wished to visit her children. It might be said, however, that a general order should be issued, but that was hardly possible, for the circumstances might change in the interval, and the wife might no longer have a right to visit her children. The bill assumed that the husband wanted exclusive possession of the children, and the consequences of such an assumption would be to create a feeling of exasperation on his part, and they might depend that, on every fresh application, he would resist the application and thus Widen the breach betwixt the parties. The last and most important objection of all which he had to the bill was the inevitable mischiefs it would create, destructive of the comforts, and dangerous to the purity, of marriage life. If there was any one thing which more than another tended to protect the sanctity of the marriage vow, it was the love and affection which women bore to their children; and the question which in reality was raised by the present bill was, whether the mutual consent of both parties, husband and wire, ought to be a valid ground for divorce. It was from the knowledge which those parties had, that they could not easily get rid of each other, that many trifling inconveniences were passed over, which would otherwise assume the shape of the most tormenting evils. What could have a more powerful tendency to make a wife faithful than the knowledge that infidelity on her part would sever her connexion with her offspring? And he knew, that this knowledge did, even in cases where the wife was criminal, operate to postpone her elopement with her paramour. But would not this salutary influence against criminality be removed if the wife should be told, that by the shortsighted and one-sided humanity of their Lordships she might, when living apart from her husband, obtain access to her children? He knew there was a proviso in the bill, which in the case of the wife's elopement with a paramour, and the passing of a verdict against her, would debar her from the privilege of visiting her children; but might she not, without eloping, so conduct herself as to render her husband's life miserable, and thereby make him ready to consent to a separation? It, therefore, became their Lordships' serious duty to consider how far, by passing such a measure as the present, they would be giving encouragement to separations, a state dangerous to the virtue of married women, and how far they would be rendering reconciliations less probable than they were under the present state of the law. If a bill on the subject was to be passed at all, he would rather see a measure which would at once apply the axe to the root of the evil, and be safe from all those evils which he had pointed out as likely to follow from the present bill. Suppose it were enacted, that when the husband was separated from the wife on account of cruelty or adultery by verdict of a court of law, regulation should be made for the proper custody of the children; but, in such a case, he would have no divisum imperium, but he would take the custody of the children entirely from the guilty father, and transfer them to the care of the mother, or to such other person as, under the circumstances of the case, it might seem proper to name for that purpose. It might be matter for consideration whether such a provision should not be enacted. He repeated, that he was really concerned to be unable to meet his noble and learned Friend's complaint of the state of the law as it now stood with some remedy which should be adequate and safe, but he implored their Lordships not to be led away by the natural and laudable feelings to which his noble and learned Friend had appealed, but to consider how dangerous it would be to tamper with one of the most delicate and important principles of our law in one particular part, and with one particular limited and contracted view, without at the same time carrying their regards over the whole portion of their jurisprudence which related to the subject of marriage. Entertaining these objections to the bill, he felt bound to move, that it be read a second time that day three months.

The Lord Chancellor

said, it was for their Lordships to consider whether or not the bill, with the alteration which the noble and learned Lord had signified his readiness to make, might not be shaped into a measure which would guard against the abuse of the power which as the law now stood the husband possessed, without at the same time interfering with the relative obligations of husband and wife, or weakening that influence which the love of her offspring had on the conduct of a woman. All that they could give was occasional access to the children under the directions of the court, and with such guards as were necessary to be introduced in order to prevent it from being abused. That would be a great object for a mother to obtain. They were, however, not to consider alone the gratification which it was likely to afford her. They should also consider whether, looking at the course of life she was likely to lead, they were doing her a kindness it, permitting her to see her children. He thought it extremely doubtful. He thought if the husband were to feel that there was a power of control residing somewhere, he would not compel the wife to have recourse to an application for its exercise in her behalf. By the advice of friends and interference of relatives, amicable arrangements would, no doubt, be made, and the influence which love of the children begets would not be diminished. In order, however, to effect this object the power should be sparingly and cautiously exercised. It should not be exercised in cases where there was misconduct upon the part of the wife, but only where she was irreproachable, and where the husband severely and cruelly exercised the power given him by the law. All the cases put forward by his noble and learned Friend were upon one side. Their Lordships should look at the other side—at the case of a wife without reproach, and a brutal husband. Under such circumstances, was it a wholesome state of the law to allow the husband to put his wife in this predicament—either to submit to his brutal cruelty, or for ever to be separated from her husband? To meet such cases, he thought there ought to be a power of control lodged somewhere. It ought, however, as he said before, to be sparingly exercised. Under due restrictions, the exercise of the power would have a beneficial effect upon the husband, and would not interfere with the ordinary relation of husband and wife. It was upon these grounds, but not without great doubt and difficulty, that he had brought himself to support the bill. As he was sure that the power might be given to the judges of the Courts of Equity without incurring the risk of varying practice and conflicting orders, he thought their Lordships might safely allow the bill to be read a second time, having made in it the alteration proposed by his noble and learned Friend.

Lord Wynford

said, that his noble and learned Friend, in introducing this measure to their Lordships, had never considered the hardship which it would inflict upon husbands, or the ruin which it would entail upon families. He had contented himself with pointing out the hardships upon the wife. The duty which was cast by law upon the husband of taking care of the children and attending to their education he never could perform if the present bill were allowed to pass into a law, ruining half the families in the kingdom, and corrupting the morals of the young generation. How was it possible for the husband to perform the duty cast upon him, if his efforts were neutralized and counteracted by the influence of the wife? The bill, too, afforded something like an encouragement to adultery. For, in cases where the adultery had not been followed up by conviction, either by a verdict for damages in a court of law, or a judgment in Doctors' Commons, which took place in some of the worst cases of adultery which he (Lord Wynford) had ever known, the wife was empowered by the bill to appeal from judge to judge, and to bring forward charges upon charges, until, ultimately, perhaps, she succeeded in gaining access to her children. By the bill the judges would have a burden thrown upon them which their other duties rendered them wholly unable to bear. The husband, besides, would be kept in a constant state of litigation from one end of the year to the other, the wife contending upon each successive application that the case has assumed a different shape, and that a new state of circumstances had arisen. Where, he (Lord Wynford) would ask, was all the expense to come from? Surely it could not come from the wife, who had no property, but must come ultimately out of the estate of the children. The bill contained no provision on the subject, which was another objection to it. By constant litigation, and the bringing forward of a series of fresh charges, the expenses would wholly swallow up the property, and the children, for whom so much affection was pretended, would be irretrievably ruined. Let the House look at the appeals which the bill gave from judge to judge, and, also, to their Lordships' House. For when their Lordships allowed appeals in matters of 20l. value, they would not refuse it in such important cases as the custody of children. As all the swearing was to be upon paper, and not face to face, he was sure, that there would be hardly a single case in which perjury would not be committed. There were cases in which the greatest injustice would be done to husbands by the bill. Adultery might be committed in many cases in which the husband would be the only witness, and, therefore, could neither obtain a verdict for damages in a court of law, nor a judgment in Doctors' Commons. Their Lordships would, probably, recollect a case which occurred in Hampshire, in which the husband caught his wife in the arms of a servant. He, of course, could have no remedy, and yet this chaste and virtuous lady, under the provisions of the present bill, would be entitled to make application to a judge for access to her children. He should vote for the amendment, considering the bill to be most imperfect, for he thought it would do a great deal of evil, and, in his opinion, was capable of producing no good.

The House divided: Content 9; Not content 11: Majority 2.

Bill thrown out.

The following protest was entered against the rejection of the Infants' Custody Bill:— Dissentient, First—Because nature and reason point out the mother as the proper guardian of her infant child, and to enable a profligate, tyrannical, or irritated husband to deny her, at his sole and uncontrolled caprice, all access to her children, seems to me contrary to justice, revolting to humanity, and destructive of those maternal and filial affections which are among the best and surest cements of society. Secondly—Because, although it may be true, as alleged in debate, that women are by the governing principle of the law of England subjected in various other matters affecting their property, character, and happiness, to great and unequal hardships, such consideration furnishes, in my judgment, very inconclusive grounds for refusing them relief from a wrong, which the sound discretion of a judge might, without injury to any one, equitably and promptly redress. Thirdly—Because, whatever was exceptionable in the time, form, or mode of relief proposed in the bill, might have been corrected in the committee, and I was unwilling, before such correction of supposed anomalies and defects in the details had been attempted, to forego on account of them an object so just, important, and salutary, as the protection of that intercourse which Nature herself seems to enjoin between a parent and her child from all capricious and vindictive interruption. (Signed) "VASSALL HOLLAND. LYNDHURST. July 30,1338. "SUTHERLAND.