§ Order of the Day for the Second Beading read.
§ LORD BUCKMASTER
My Lords, you may remember that towards the close of the last Parliament a Bill was introduced, and passed through its Second Beading in this House, having for its object the legitimation of illegitimate children. The Committee stage of the Bill was postponed in order that suggestions and appropriate 253 amendments might be made, and by the time those amendments had been considered the political convulsion that upset the late Government overwhelmed this unfortunate measure. It now re-emerges not in the exact literal form in which it was before you on a former occasion, but with one exception—an important exception, to which I will call special attention—it is actually the Bill of which you then approved. That Bill passed through both its Second and Third Readings in the House of Commons without a Division, and received an equally favourable reception at your Lordships' hands.
For myself I am not surprised that it was so favourably regarded. It is to my mind impossible to consider the position of illegitimate children in this country without being at once struck by the unmerited injustice from which they suffer. There is no more pitiable object in the whole of our social life than that of a young girl who is the mother of an illegitimate child. The sanctity of the home life and of married life, the security of the laws that maintain and make the morality of modern life, are outraged by the fact of an illegitimate child being born, but the penalty the woman has to pay is something that seems to me to be far beyond the offence she has committed. She has to bear the shame and disgrace of what another woman regards, and rightly regards, as the crown and pride of her life. From the moment the child is born until it dies there is attached to it the stain and stigma of illegitimacy for which the child itself had no responsibility. No law that we can pass can help to amend the lot of the unhappy mother, but at least it is possible to do something to place the child in a position in which the law of the land does not exclude him from consideration as an ordinary legitimate child ; and this Bill is designed for that purpose.
I will not take long in going through the provisions of the measure, but I must do it in order to point out the difference between this Bill and the Bill which came before your Lordships on a former occasion. The first clause, which is the real enacting clause, provides that the marriage of the parents of an illegitimate child, where the father is domiciled in England or Wales at the date of the marriage, shall legitimate the child. Subsection (2) of this clause has caused some 254 misunderstanding, and I am not surprised. It says :This section does not enable a legitimated person to take any interest in real or personal property which he would not have taken if this section had not been passed.Subsequent provisions of the Bill, on the other hand, expressly enact that he shall take such interest. The whole difficulty created by the contrast between subsection (2) in Clause 1 and subsequent subsections in the Bill is answered by the fact that this particular subsection begins with the words—"This section." And Clause 1, which legitimates the child, does not in itself remove the difficulties which the remaining clauses of the Bill are designed to sweep away. The rights a legitimated child will enjoy are directly drawn from the subsequent provisions of the Bill.
Then Clause 2 contains something which must have struck some of your Lordships with surprise. It says:A legitimated person shall, as respects intestacies occurring alter the commencement of this Act, and before the first day of January, nineteen hundred and twenty-five, be entitled to take any interest in chattels real and other personal property not devolving on an heir, in like manner as if he had been born legitimate.The explanation of this clause, which is now entirely out of date, is this. The original Bill, from which it was taken, was intended to come into operation on January 1, 1924, but on January 1, 1925, the Law of Property Act becomes operative, and that measure provides that the descent of real and personal property shall be assimilated. It is therefore necessary to make special provision for this gap of about twelve months, and I shall ask your Lordships to permit me to amend this Bill by omitting this provision.
Subsection (2) of this clause provides that:A legitimated person shall, as respects intestacies occurring after the thirty-first day of December, nineteen hundred and twenty-four, be entitled to take any interest in real or personal property in like manner as if he had been born legitimate, save that a legitimated person shall not be entitled to take by descent as heir of a lunatic or defective, living and of full age at the date aforesaid.That seems rather a harsh provision, and if any noble Lord thinks proper to move its omission I shall not object. The point 255 is this, that a lunatic or defective person is incapable of making a disposition of his property by will or deed, and consequently has not the right which is enjoyed by other persons.
In Clause 3 it is provided that where property is disposed of by will or settlement the legitimated child shall be entitled to share equally with the legitimate children, and the general words of description include all children of the intended marriage. Your Lordships may probably like to consider subsection (4) of this clause. It provides that:Where property real or personal or any interest there in is limited in such a way that, if this Act had not been passed, it would (subject or not to any preceding limitations or charges) have devolved (as nearly as the law permits) along with a dignity or title of honour, then nothing in this Act shall operate to sever the property or any interest therein from such dignity, hut the same shall go and devolve (without prejudice to the preceding limitations or charges aforesaid) in like manner as if this Act had not been passed. This subsection applies, whether or not there is any express reference to the dignity or title of honour and notwithstanding that in some events the property, or some interest therein may become severed therefrom.
§ Clause 4 needs no special comment from me, and Clause 5 simply provides that a legitimated person shall have the same right to maintenance and support, and shall be entitled to take proceedings for compensation, or make any other claim under any Statute, as if he or she had been born legitimate. That is such an obvious conclusion from the principle of the Bill that I feel certain it will meet with no opposition. It only causes me to comment on the astounding fact that at the present moment the obligations of parents for their illegitimate children are so narrowly restricted. Personally I have never been able to see, and I doubt very much whether debates in this House will enlighten me, why the responsibility of a man for an illegitimate child is any less than for a child born in wedlock. He is directly responsible for the birth of the child, and why he should be allowed by law to escape all obligations simply by paying ten shillings a week I have never yet been able to understand.
§ Clause 6 provides that nothing in the Bill shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any any such dignity or title. It also provides that 256 nothing in the Bill shall authorise a legitimated person or his issue to take by descent under an estate tail or other entailed interest created before the commencement of the Act.
§ Clause 8, which looks rather a difficult clause, provides that where the parents are married and the father was domiciled at the time of the marriage in any country, other than England or Wales, by the law of which the illegitimate person became legitimated by virtue of such marriage, then the child shall be recognised as having been legitimated notwithstanding the fact that his father was not at the time of the birth of such child domiciled in a country where such a rule of law prevails. That seems to me to be a reasonable proposal, but I shall be interested to hear if any noble Lord has any comment to make upon it.
§ The Bill stands before you in the way in which it stood on a former occasion, subject only to this, that the former Bill contained a clause which provided that the benefits of this Bill should not extend to an illegitimate child, one of whose parents was, in fact, married at the date of the birth of the illegitimate child. I have never been able to understand why that was introduced. The object of this Bill is not to reward parents: it is intended to enable them to make some small atonement for a great and almost irreparable wrong, but it is not intended to induce them to commit acts of immorality, nor do I imagine that anyone will suppose that such will be its effect. If the real purpose of the Bill be to help the child, I would ask your Lordships what it is that the child who has been born of a union that is both irregular and adulterous has done to place him in a different category from a child who was merely born out of wedlock by the irregular relations of unmarried people. It is, to my mind, inconceivable that there should be any difference between the two.
§ I know that whenever these questions are discussed you always get back to an argument, which the imperfection of my intellect has never enabled me properly to apprehend, that acts of immorality are the result of a careful calculation of balance sheets in which are weighed up on the one side and on the other the advantages or disadvantages of the act, and the act is or is not committed according 257 to the balance which is struck. I say emphatically that this is not my experience of life, nor do I believe that it is the experience of any other person. The suggestion that you are going to prevent adultery by saying: "If you do commit adultery, if a child is born and if you marry the mother afterwards, the child will still be illegitimate," is a form of argument which, if it appeals to your Lordships, I would treat with respect, but at the same time I must admit my own complete inability to understand it. This Bill will not divide this House along any Party line. It is intended to remedy a social injustice. It is an attempt by people who are fortunately placed to do something to relieve the burdens of others in less happy conditions. Such a Bill in my experience has never failed to find a favourable reception at your Lordships' hands, and I hope that the same kind consideration will be extended to this measure.
§ Moved, That the Bill be now read 2a.—(Lord Buckmaster.)
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, when this Bill was before your Lordships in a slightly different form in July last I was unfortunately unable to be present, but I take, both officially and personally, a very deep interest in this subject, and I should Like to say a very few words in respect of the Second Reading. I believe that on the whole the balance is in favour of this Bill, though the matter is not without difficulties. I say so both on the general grounds which have been eloquently urged by the noble and learned Lord to-night, and were eloquently urged by him and others on the previous occasion, and also because the Bill tends to bring into harmony the laws concerning marriage north and south of the Tweed, laws which are at present at variance. I am, of course, aware—and this point might be brought up on more subjects than one—that it is only with discrimination and caution that we can apply the argument sim-pliciter that the law north of the Tweed ought to be the law south of the Tweed, or vice versa. It is perfectly certain that we cannot abolish the difference between the two systems altogether, and I do not propose to urge that we should, but I think that in this particular case the 258 argument is an exceedingly strong one that we should assimilate the law of England to the law which has worked perfectly well in Scotland for centuries past.
The Scottish law, however, in providing legitimation for children born out of wedlock, is governed by a proviso which affords very careful safeguards, and if we are to reap the advantages which are said to have arisen from the existence of this law in Scotland we must take care that in adopting the Scottish rule we adopt the safeguards which accompany it. It is in accordance with that view that I should be prepared to support an Amendment, which I hope will be moved in Committee, to re-introduce into this Bill the important safeguards to which the noble and learned Lord has just referred as having been included in the Bill when it was last before your Lordships, and which have disappeared from it now. Your Lordships will remember the words:—Nothing in this Act shall operate to legitimate any person whose father or mother was married to a third party when (the illegitimate person was born.I am not going to argue that question now—it would be out of place, I think, to do so on the Second Reading—but I shall be ready to argue it in Committee, and to bring forward considerations which have not been touched upon in the noble and learned Lord's remarks in moving the Second Reading.
I should like to assure the noble and learned Lord that I am entirely in accord with him in all that he says about the futile argument—as I agree it must be called—which has been brought forward as to the encouragement of wrong-doing, immorality, and so on, in this way. I have never used that argument and I do not use it now. I agree with the noble and learned Lord that immorality is not brought about by calculations of this kind, but is due to passion and other things. It is not, therefore, upon that ground that I shall urge the re-introduction of a clause which would really make the measure that is now proposed harmonious with the law of Scotland, and would make it correspond with the Bill as it appeared before your Lordships last July.
I do not, of course, underrate—no one would suppose that I am likely to underrate—the importance of the moral and 259 religious questions which are involved in this whole subject. They are grave to the last possible degree, and I feel their gravity intensely. But it is on other grounds, on the very kind of ground, in fact, upon which the noble Lord has advocated the Bill, that I wish to urge, and shall urge when the time comes, the reinsertion of that clause ; not upon moral and religious grounds, but because I believe, and I think I shall be prepared to show when the time comes, that the happiness of domestic life would in hundreds of cases be gravely imperilled by the Bill in its present form, and that on the ground of general expediency such a proviso is necessary in regard to the legitimation of children born out of wedlock. I shall return to that point when the time comes, but to-night I merely rose to say that while it is my intention to support the reintroduction of the original subsection when the Bill comes before us in Committee, I wish to advocate that your Lordships should give a Second Beading to this Bill to-night.
§ VISCOUNT FITZALAN OF DERWENT
My Lords, I wish to raise only one point upon this Bill, but, as this is the first time I have ventured to address your Lordships, I would ask for that kind consideration which your Lordships are wont to extend to any one who is in that position. My point has been already alluded to by the most reverend Primate. As I understand it, this Bill—and I think the noble and learned Lord referred to this point in his speech—would, as at present framed, legitimate the child of a married woman whose husband was alive but was not the father of the child. I cannot help thinking that this is going rather far. I am in favour of the main principle of the Bill, but I hope that when we come to the Committee stage a change may be made in that one particular respect. I thank your Lordships for allowing me to say these few words.
§ LORD PHILLIMORE
My Lords, I venture to say that this Bill is a step in the right direction, but in one respect it does not go far enough, and in another respect I think it goes too far. It does not go far enough because it does not legitimate wholly and frankly, and out of hand, the children with which it deals. It makes a second or a third class— 260 legitimate children, illegitimate children, and children legitimated up to a point by this Act. It ought to go quite thoroughly to the end, and say that the child born under certain conditions of parents who afterwards marry, is just as much entitled to a dignity or to real estate, or to succeed by entail, as if he were a lawfully born child. I cannot help feeling that in a very few years that will be the result of this measure being passed People will say it is quite ridiculous that one man should inherit the whole of a ducal estate and another man should be the Duke. Similar cases will arise. After all, it is quite new in the history of the world, and so far as I know quite new in modern civilisation, that there should be this third and intermediate class of child. Therefore I venture to say that this Bill does not go far enough. It has not the courage of its opinions. It prevents, in Clauses 4 and 6, the legitimated child from having the natural rights of a child, and brands him for all time.
Where then does the Bill go too far? It goes too far for the reasons given by the most rev. Primate and for another reason which I shall submit to your Lordships. The old simple rule of Church and State—Church first and State afterwards—everywhere but in England and Ireland, has recognised that if a child is born of parents capable of marrying, and those parents do not marry somebody else in the meanwhile, but end by marrying each other, Church and State should say: "After all, marriage is a matter of consent. You did not solemnise or prove your marriage by the proper forms, but you have proved your marriage now, and for the sake of the children, if not for your own sakes, we shall deem that you have been married from the beginning, and your children shall have all the rights as if you solemnised your marriage at first. But for that purpose you must be free to marry." The point which the most rev. Primate did not notice is that you must not in the meantime have contracted another marriage.
Let me show your Lordships, purely on practical grounds, the objection to the Bill as it stands in that respect. A child is the fruit of an adulterous union, the woman being married. The intrigue is not known. The parties go on and the husband dies in ignorance of the intrigue, and then the guilty couple marry. What 261 is the position of a child procreated by the paramour and the adulterous wife ? Is he then to be the legitimated child of his actual parents ? Is he to be bastardised from being what he has always grown up in the belief that he was? He has always supposed that he was the son of the husband of his mother, he has lived with his brothers and sisters in that belief, and has enjoyed all the comforts of the family. Is he then to find that his real parents are going to say that he was their child, and therefore he is to be legitimated as their child, and necessarily bastardised as regards the position he has always been in before? I do not think anybody has thought that out, and I cannot help thinking that if the noble and learned Lord thinks it out he will consider that some step will have to be taken if the clause which the most rev. Primate proposes is not carried.
Take another case. The old rule of law is that parents should remain unmarried and not enter into another tie. Suppose they enter into another tie. Suppose a man has a mistress who has a child. He then marries in the regular way and has a child by the lawful wife. The wife dies, and then, out of repentance or from a desire to make amends to the mistress, he marries her. He at once brings the mistress's child into equality, at any rate, with, and possibly into superiority over, the child of the marriage. Hard indeed would that be upon the child of the marriage, who has never been aware that there is any such second claimant to his position. I say possible superiority, because I imagine that these provisions making a second class of children will be swept away in a few years, and then the mistress's son will be the elder son, and the son of the legitimate wife will find that his father's bastard child, of whose existence he has been unaware, is entitled to succeed to his father's honours and estate.
Such things have happened as a man quarrelling with his heirs, and the son of a lawful marriage, if he know that his father had an intrigue, might live all his life in the fear that if he offended his father he might be disinherited. For those reasons, and I say nothing about others, I hope not only that the provision referred to by the most rev. Primate will be introduced, but also that those oilier precautions which I have mentioned will be taken. The, noble and 262 learned Lord at the end of his speech delivered an appeal to us all on behalf of illegitimate children. I wonder that he docs not say that in his view all children should be legitimate. That at any rate is the result of his last argument against this clause, and I hope to support the most rev. Primate when the time comes.
§ THE LORD CHANCELLOR
My Lords, it only remains for me to state the general attitude of the Government towards this Bill. The Bill consists of a general principle, which is expressed in the first clause, and then of a number of exceptions which are made to guard questions of title. As to the general principle the Government look upon this Bill with favour. We think it is conceived in the interest of the child, and that it ought to be looked upon as embodying propositions which should form part of the law of the land. Then, when I come to the exceptions, I have listened with attention to the criticisms which have been made. There was the criticism made by the most rev. Primate, and criticisms made by Viscount FitzAlan, and also by the noble and learned Lord, Lord Phillimore. All these go to points of detail. I am not saying that they are right or essential. What. I say to Lord Buckmaster is that it would be well if he thoroughly sifted them out, in order to make progress with the Bill, and I suggest to him that he and I should conler about the concessions to be made and about the questions which arise on the clauses of this Bill.
I have read the Bill with some attention. I think it is a Bill which is drafted very competently, but questions which are more than questions of drafting arise on the clauses, which I should like to consider a little more closely, having a sense of the responsibility which any one must feel who is in any way responsible for changes made in the law. Therefore, if my noble friend will confer with me on the provisions of the Bill, I will call in the experts whom I can command, and we shall have the whole matter before us. That entails that the Bill should not be put down for a few days for the Committee stage. We must endeavour to see what light we can get upon it before we come again before your Lordships' House. If my noble friend will take that course then certainly the Government will not offer the slightest opposition to the Bill. Rather 263 the contrary; it regards the Bill with favour, and it may facilitate its progress through your Lordships' House if we have taken the pains to go into the matter before it is further considered.
§ On Question, Bill read 2a, and committed to a Committee of the whole House.