BASTARD CHILDREN BILL. (Hansard, 9 June 1845)

The Earl of Radnor
moved the Second Reading of this Bill, and said, that so gross and indecent were the results of the law as it at present stood, that he had met no magistrate who did not wish it to be altered, although all might not approve of the particular alterations which he proposed. He should not go into all the different laws on this subject that had been enacted from the time of Elizabeth down to the passing of the Poor Law Amendment Act; but experience had shown that those laws led to great abuses, and gave rise both to crimes and extortion. In pursuance of the recommendation of the Commission of Inquiry into the old Poor Law, in the original Poor Law Amendment Act, no clauses were introduced with respect to the affiliation and maintenance of illegitimate children; but clauses were introduced in the Committee, which, however, left the principle of the law as it was before. Illegitimate children were to be maintained partly by the father and partly by the mother, in order to indemnify the parish: but the machinery was altered, and such cases were to go at once to the quarter sessions, and not to be brought before the petty sessions at all. He thought the law would have been better without these clauses; but they did not do much harm, owing to the infrequency with which they were acted upon, in consequence of the expense they occasioned. By the Act of 1839, the affiliation of these illegitimate children was taken away from the quarter sessions, and restored to the petty sessions; but with some regulation as to corroborative evidence. That Bill left the principle of indemnification of the parish as it had been since the law of Elizabeth, which had remained untouched by the Bill of 1834; but, by the Bill of last year an entire revolution was made in the principle of the law, and it was no longer the parish which was to be indemnified, but the mother of an illegitimate child. That principle was vindicated by some, on the plea of the hardship of visiting the whole 236 punishment for an immorality upon one of the offenders; but it should be recollected that that was the state in which nature left it. By the dispensation of Providence, all the pain and hardship of child-bearing were sustained by the woman; but the Legislature, thinking itself wiser than Providence, held out a remuneration to her for the commission of crime, and placed the mother of an illegitimate child in a better position than a widow with a legitimate child. Protection was said to be the bane of agriculture; but he was sure such protection as this was the bane of female virtue, and was a snare and a trap, because it removed one of the strongest checks against the indulgences of vicious passions, and at the same time furnished man an additional argument wherewith to overcome the scruples of the female, by representing to her that she would be exempt from the expense of the maintenance of her child. If it had been intended merely to preserve from too severe punishment inexperienced girls who allowed themselves to be entrapped by the arts of a seducer, then the money to be paid by the father should be limited to the first child; but as the law stood, it was the most barefaced and the most impudent women who got the advantage of the Act. There was another reason why the law should be altered. The principle of English law was, that no person should be called upon to give evidence in his own case. And so it was up to the law of last year, because till that time the mother was not benefited by the affiliation of the child, but the parish. Now, however, she had a direct interest in the matter; and the provisions of the Act in that respect held out inducements to perjury, and opportunities for extortion. Any one of their Lordships might be sworn to as the father of an illegitimate child; and although there might be no foundation for the imputation, yet it might have very unpleasant and unjust consequences upon a man of timid nerves. The noble Earl enumerated instances in which the law had been made an instrument of gross injustice and oppression, and expressed a hope that noble Lords opposite would feel the necessity of its alteration.

Lord Wharncliffe
said, he must oppose the second reading. It was too soon yet to judge of the operation of the Act of last year; and he thought that, considering the very short time that had elapsed since 237 that Act came into operation, the House would not act advisedly in proceeding so soon to effect an alteration in that law. Undoubtedly, until that Act, the object of the law was to indemnify the parish against the maintenance of an illegitimate child; but practically it was a payment to the woman, and women were known in some instances to derive very handsome incomes from the length to which they carried the practice of affiliation. Such abuses arose out of the old law that it was necessary to make some alteration; and, instead of an order being made as a matter of course, upon an oath before two justices, the Poor Law Amendment Act required corroborative evidence, and also provided that the woman should be liable to be examined in open court, thus applying as strong checks as could easily be devised against the child being falsely affiliated. There always existed a strong feeling of opposition to the system under which all the burden was thrown upon the woman, for that was looked upon as an unjust and unwise arrangement; but, unfortunately, it was often extremely difficult, first, to bring a matter of that kind home to the father; and, secondly, when it was brought home to him, it was often very difficult to recover the money. An order might be made against his goods; but in ninety-nine times out of a hundred he had no goods that could be seized; next, it might be made against his wages; but, generally speaking, masters, especially in the manufacturing districts, were very unwilling to have wages stopped. Actions for seduction might be brought, and often were brought, in the middle classes of life; but where the parties were very poor, as frequently happened to be the case with parties proceeding under the bastardy laws, no actions could be brought; and the Bill of last year was intended to give a remedy to those who were most likely to be exposed to the evil, and who had not the means of sustaining their case in a Court of Law. The noble Earl stated that that Bill introduced a new principle; but he (Lord Wharncliffe) could not agree in that statement of the noble Earl; for so far from this being a new principle, it was one which had for centuries been in operation in another shape from the highest to the lowest class. When a man in any class of life seduced a woman, he was subject under the law of this country to an action on the part of the woman's parents 238 for the loss of her services; and the Bill of last year only put the lowest class of people in the same position to obtain redress which others occupied. He could see no injustice in the law, and he would repeat that it certainly did not introduce a new principle. The noble Earl mentioned a case in which a woman of abandoned character was the mother of six illegitimate children, and asked if it were fair to oblige the magistrates to decide against a particular father on her testimony. It might not be just to oblige them to decide; and, therefore, the law left the order altogether at the option of the magistrates, who could require corroborative testimony in favour of the woman's evidence before they decided against the putative father. The noble Earl also objected to the reception of a woman's evidence under circumstances which gave her so strong an interest in the case—in fact, admitted her as evidence in her own case; but he ought to recollect that the same course was adopted in actions at law with respect to the woman's evidence. The Act which was now in force had been in operation for a very short time, and he thought it would be unwise and unjust to repeal it after so short a trial of its effects. He would, therefore, move as an Amendment, that the Bill of the noble Lord be read a second time that day six months.

The Earl of Carnarvon
concurred in the opinion of his noble Friend who had just sat down, that there had not been a sufficient trial of the Act of last year, and it would be premature to repeal it without further experience. Such rapid changes in legislation were not at all to be recommended, and would not be calculated to advance the credit of the Legislature with the country. He agreed perfectly with the statement that there had existed for a long time a strong objection to the principle of throwing all the burden of supporting the offspring on the woman—the weaker vessel, and sparing the stronger, and often the more guilty party; whilst the former system, in addition to that evil, had also the serious moral evil attached to it of tending to create in the minds of the men who formed those connexions the idea that the Legislature connived at their faults. It appeared to be opposed to the designs of Providence to discharge the putative father from the responsibility of contributing his share to 239 the support of his illegitimate child; and the change which threw the burden on the woman solely, and which had been again altered, was in consequence of the extreme unpopularity of that measure. It should be always an element of consideration with their Lordships, whether a law which would require to be very often put in operation was likely to be popular, or to excite a strong feeling of opposition—and the latter was undoubtedly the case with respect to throwing all the burden of supporting the child on the woman alone. The noble Earl alluded in forcible terms to the evils of increasing the temptation to false swearing; but the objection was incidental to all testimony of a similar nature, and it would not be wise to establish a system of error and injustice solely to avoid that possibility of false swearing on the part of the woman. He repeated that he thought the alteration proposed by the noble Earl in the law of last year was premature, as they had not as yet had sufficient experience of the operation of that Act.

The Earl of Radnor
thought that the Bill which he had introduced would do a great deal of good if passed into a law. The existing Act held out a premium to women to perjure themselves for their own pecuniary advantage; and his experience at the Sessions convinced him that it ought to be altered, not only in that, but in those other respects to which he had alluded, when moving the second reading of his Bill, which he had no doubt would be lost, as it was opposed by the Government.