HL Deb 17 July 1924 vol 58 cc662-88

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Buckmaster.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Legitimation by subsequent marriage of parents.

1.—(1) Where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in England or Wales, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, which last happens; and such person is in this Act referred to as a "legitimated person."

(2) 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.

(3) The Registrar-General may, on production of satisfactory evidence, authorise at any time the re-registration of the birth of a legitimated person, and such re-registration shall be effected in such manner and at such place as the Registrar-General may by regulations prescribe.

VISCOUNT CAVE moved, after subsection (1), to insert the following new subsection:— (2) Nothing in this Act shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born.

The noble and learned Viscount said: I have heard with much regret from the most rev. Primate that he is unable, for public reasons, to be here to-day to move this first Amendment, and I have agreed, at his request, to move it. I do not think I need spend very much time in doing so, because it has been so lately debated in your Lordships' House. When the Bill brought in by the noble and learned Lord, Lord Buckmaster, was considered a few months ago, this same Amendment was moved and was adopted by this House by a very large majority, and I certainly do not assume that your Lordships will readily have changed your minds upon a matter of such importance.

The Amendment brings the new English law as it will be set up by this Bill into accord with the Scottish law as it has stood for a very long time. In Scotland, where the process of legitimation by subsequent marriage has long been recognised, the exception has always been made that that result shall not be attributed to a marriage in cases where the child in question was either conceived or born while one of its parents was married to another person. I do not say for a moment that everything which is law in Scotland ought to be law in England, but I do think that when this exception has stood in Scotland for so long and has been sanctioned by Scottish experience and wisdom, we ought to hesitate long before, in adopting in general the Scottish law, we set aside the exception which that law has made. The principle of the Amendment, I think, is that we ought in this matter to distinguish between promiscuous intercourse between unmarried persons and adulterous intercourse between married persons. If you put the two upon the same footing for this or any other purpose you thereby remove one of the things which deter people from committing matrimonial offences and you do, to that extent, weaken the sanctions of the Marriage Laws.

In the case where the mother of the illegitimate child was married when that child was born the case for this Amendment has really been conceded by the noble and learned Lord who is to-day in charge of this Bill, because when we adopted this Amendment early this year I put forward this argument. I said that where a child is born of a woman who is for the time being married it is the presumption of the law that her husband is the father of the child—a presumption which has certainly not been weakened by a decision given in this House since that debate took place. And I said that, that being so, it was most undesirable that any contention should afterwards arise as to whether the husband or some third person was, in fact, the father of the child. My noble and learned friend Lord Buckmaster replied that really the argument was inadequate because the point would never arise. He said, in effect, that it would never happen, that where a child had been born of a mother who was married and the husband died some third person would claim to be the father of the child and to legitimate it under this Bill. But if the case would never arise surely half the argument against this Amendment, is gone, because if the point can never arise in the case of a married woman, at all events, as regards a married woman, no harm is done in passing the Amendment and saying that the Act shall not apply.

Therefore, I deal mainly with the case in which a married man has had intercourse with an unmarried woman and there has been a child as the result of that intercourse. The real effect as the Bill stands is to allow that child to be legitimated by a subsequent marriage between the parents. We argued it out last time. I think it is most undesirable that a married man who desires to corrupt a girl shall be able to say: "True we may have issue, but I will see to it; I will get a divorce from, or I may survive, my wife, and then we can be married and legitimate that child." That would be an argument which might be used by some people with effect, and I do not think it ought to lie in the mouth of anybody to use such an argument as that.

Another point, made by the most rev. Primate on the last occasion with great experience and force, was this. He said that if you allow the Bill to pass without this Amendment then in cases where a man has, besides his legitimate union, an illegitimate connection and by that connection has issue, great pressure will be put upon his wife under an Act which has recently been passed to divorce her husband so that he may marry the other woman and legitimate that child. Great pressure would be put upon her, and it would be very hard and very cruel that she should be laid open to pressure of that kind. I heard no answer to that argument, and I doubt whether any can really be given.

We are always told in these cases: "You must think of the child and of nobody and nothing else." I do not agree with that argument. If you press it to the full we would have to say that every child shall be legitimate, marriage or no marriage. You must think of other considerations. If it be true, as I think it is true, that the passage of this Bill without this Amendment will weaken the sanction of the Marriage Laws and will weaken those deterrents from misconduct which exist to-day, that alone is, to me at all events, a sufficient argument in favour of the Amendment. I think not only of some children, but of all the thousands and millions of future children and wives whose whole happiness may depend upon the maintenance of our Marriage Law. Anything which this House or Parliament may do to weaken the sanctions of that law and to make it less binding and less observed than it is to-day will, in return perhaps for some benefit to some children, do definite harm to many generations to come. I wholly accept the Bill if this Amendment is inserted in it. Without this Amendment I think the Bill may do more harm than good, and I hope that your Lordships will once again insist on this provision being inserted in the Bill.

Amendment moved— Page 1, line 14, at end insert the said new subsection.—(Viscount Cave.)

THE LORD BISHOP OF SOUTHWARK

I rise to support the Amendment which has been moved by the noble and learned Viscount. I do so not from any hostility to the Bill as a whole, which I welcome as removing a real stigma in many cases. I can well remember in my parochial experience cases where marriage had been fully intended and then, either through unemployment or removal from the town, the marriage had to be postponed and the child was born shortly before the marriage. Sometimes the fact that the child was illegitimate was not known by himself or his brothers until he had reached manhood. But we must be very careful not to create a fresh wrong in removing what is a cause of suffering. I am afraid that if this measure is passed without this Amendment real suffering and hardship may be caused to innocent women. In the case of a man who desires a child, who has not one by his wife and who has grown not perhaps hostile to her but indifferent to her, he might be tempted, when he knows that he has a child by his mistress since his marriage, to bring very great pressure upon his wife to divorce him. Pressure might he brought by relations and the woman herself might be in an extraordinarily difficult position as to what her duty was—whether she ought to divorce her husband or not so as to allow him to legitimate the child. It is for this reason that I am supporting the Amendment which has just been moved.

I do not believe for a moment that this measure will encourage or create vice—vice of this kind s not a matter of calculation—but I am afraid that when a wrong has once been done it will lead to the possibility of mother wrong, namely, pressure brought upon a wife to divorce her husband even when she, if left to herself, would be perfectly prepared to forgive him for the offence which he has committed. I listened on the last occasion to the very moving appeal, made, by the noble and learned Lord in charge of the Bill, to think of the children. I should have liked to vote with him on that ground, but we are bound to think of the wives and of the harm which might be done and the suffering which might be caused to those who are innocent.

LORD BUCKMASTER

I paused before dealing with this Amendment because, as has been said to your Lordships, this matter has already been very fully discussed in this House at no very distant date, and I was anxious as to what would necessarily result if the speech made in answer to the first Amendment gave opportunity to others to use the privilege of Committee to make repeated statements upon the same question. The Amendment proposed is confined to this. If a child is born while one of its parents is married to a third party that child shall be excluded from the benefit of the Bill. It does not apply, as your Lordships will notice, to a child who was born before the marriage of one of its parents and whose mother afterwards is married to one of the people who had already contracted a lawful alliance. That is important in relation to marriage and I will deal with it later on.

But the Amendment as it stands is supported by arguments which, I admit, leave me completely unconvinced. It is true that your Lordships, by a sufficient majority—when the noble Viscount talks about a very great majority, I have forgotten whether it was eighteen or twenty, but it was something of that kind; at any rate it was a sufficient majority—did accept this Amendment. But when you are aware that the same Amendment has been rejected by an overwhelming majority in another place, at least it is fair to say that no considerations of Party whatever can have entered into the expression of that view. Those people, with their experience of life, have expressed an opinion the exact opposite of that which is entertained by your Lordships, and at least I think that that is a reason why this matter needs to be reconsidered. Now, when it is reconsidered, what are the grounds upon which this Amendment is recommended? If I were to take the grounds of the noble and learned Viscount in order, he began with a reference to Scotland. I feel sure that some of your Lordships will understand me when I say that on a Bill like this I hear a reference to Scotland with a feeling which nearly approaches resentment. Whenever I argued my Divorce Bill before your Lordships and attempted to point out that one of its fundamental principles is nothing but the establishing in this country of a law that has remained unchanged and unchallenged in Scotland for years, I was not listened to by the very people who support this Amendment to-day. I am told by the rev. Prelate, the Archbishop of York, that you could not consider the temperaments of the two countries the same. Be it so. I say the analogy of Scotland has no application whatever to this Bill unless you are going to accept it in its application to the other.

The next point he made was that, without this Amendment, the Bill might result in some removal of restraint upon ill-deeds done by husband or wife. That again always appears to me to be one of those arguments addressed to a world of people who do not live, and the most rev. Primate, the Archbishop of Canterbury, on the last occasion, with his customary fairness joined with me in saying that such an argument completely ignored the forces which really were the determining cause of these acts of misconduct taking place. I heard with gratitude the most rev. Prelate the Bishop of Southwark make the same statement to-day. That argument, at least, has not got the undivided support of the noble Viscount's own supporters. Then he says that, after all, half of the people will not be affected if this Amendment be introduced, because a child born of the adulterous intercourse of a woman living in wedlock is presumed to be the husband's child. I agree, but does the noble Viscount really suggest that cases of misconduct committed by the man and the woman are equal, and that for every man who commits adultery there is a woman who does the same?

Once more I say that is contrary to the experience of life. It is not of the least use pretending that these things are the same, more particularly as once more we were told, when one of these Bills was before your Lordships' House, that an act of adultery on the part of a man was a thing that was not measurable with that act on the part of a woman. There will, no doubt, be cases of women whose misconduct will have resulted in illegitimate children. That is quite true, but by far the greater part of these cases, and I am satisfied the most rev. Prelate will agree with me, are the result of men's misconduct and not of women's. Therefore the whole case has to be considered from this point of view; that not half of the people but practically the whole of them will be affected.

Then what is the reason why the children of these relationships shall be utterly excluded from the benefit of this Bill and set apart in a class in which they are not to be legitimated, but are to be branded for all time as the result of adulterous intercourse? You add a grievance by this Amendment. At present there is only one class of illegitimate children. If this Amendment passes these children are to be set apart as a class of children peculiarly obnoxious to the law because of some added sin on the part of their parents which they were wholly unable to prevent. It is also said: "Oh, but this is going to induce men to get their wives to divorce them in order that they may many their mistresses." In the case of a man who had a child by a woman before he married, if his own marriage was infertile, exactly the same argument applies. But the Amendment does not cover that if those really are going to be the influences that are going to operate on men and women after the passage of this Bill. Not one of you can possibly say more than this, that that is what you think may happen, because no person can say it will happen. It is a poor case, and for that case you are going to do a very definite wrong to these unfortunate children.

Finally, have your Lordships considered this? As the law stands to-day a woman who is deserted by her husband, and cannot tell whether he is alive or dead, frequently contracts an alliance with another man, and not infrequently solemnises it with a marriage, believing her husband to be dead. She has children. Her husband comes back. What is the result? These children are all bastardised. Surely if there was a case where a child ought to get the benefit of the Bill it is a case of that kind.

VISCOUNT CAVE

Those children will be presumed to be children of the marriage.

LORD BUCKMASTER

I apologise. It is my own fault that I have utterly failed to make myself plain. I am assuming this case. A woman is married. Her husband has deserted her, and is away so that he is not near her for, say, six or seven years. She then goes through a form of marriage with another man, believing her husband to be dead. The husband returns ultimately. She divorces him, or he divorces her, and she really marries the man with whom she has been living. That case has nothing to do with what the noble Viscount proposes, and that is the case which this Bill would exclude. Or take another case. Take the case of a man who is permanently mad and living in a lunatic asylum. The time has gone that made it unfair to quote special instances. I say that if an eminent novelist lived with an eminent man, and had a child while that man's wife was, as we know, permanently mad, and afterwards married him, it would be the height of injustice to exclude the child of that union from the benefits of this Bill. No one denies it is unjust. All that has been suggested is that you must perpetrate this injustice because you believe if you do not, in some remote hypothesis, in some infinitely small number of cases, a wrong may possibly happen. The noble Viscount positively asks your Lordships to accept this Amendment because of the millions of women and children who are concerned in it.

VISCOUNT CAVE

I said nothing of the kind.

LORD BUCKMASTER

I beg your pardon; you may have forgotten it. If you desire to withdraw I shall give way. Those are the words which I put down. I felt certain when the noble Viscount was using such arguments that his zeal had got the better of his judgment. I say the issue is a very simple one. On the one hand, you have the hypothetical grievance; on the other, it is for you to decide which cause you will espouse.

THE LORD CHANCELLOR (VISCOUNT HALDANE)

It is right I should say a word at least to indicate the opinion which we hold on this Bench on this subject. When the question was before your Lordships on the last occasion we supported the principle of the Bill, and were opposed to the Amendment on the ground that the primary interest with which we were concerned was that of the children. We do not dispute that there is weight in the considerations which have been urged by the noble and learned Viscount opposite about the Marriage Laws, but we say that this is a Bill brought in for the benefit of innocent children who had no part in the sin of their parents, and for that reason we took the view which has to-day been expressed by my noble and learned friend, Lord Buckmaster. On the present occasion the position is strengthened because public opinion has been expressed by a large majority in the other House. That House took the view which we took on a previous occasion. I need say no more. It would be a repetition of arguments with which your Lordships are familiar if I stated in further detail the reasons for this view. Therefore, what I have to say is that if a Division takes place I shall support the noble and learned Lord, Lord Buckmaster.

VISCOUNT CAVE

My noble and learned friend does not often misrepresent his opponents, and if he does so it is not intentional. But I think he has done so this afternoon. I did not say that the fate of millions hung on this Amendment. What I said was that the fate of

Resolved in the affirmative, and Amendment agreed to accordingly.

THE EARL OF MALMESBURY moved, after subsection (1), to insert the following new subsection: (2) Nothing in this Act shall operate to legitimate an illegitimate person whose father or mother has after the birth of the illegitimate person, married a third person and has issue of that marriage living at the time of the marriage to the parent of the illegitimate person. many generations, and possibly millions, hangs upon the continuance of our Marriage Laws.

On Question: Whether the new subsection shall be here inserted?

Their Lordships divided: Contents, 77; Not-Contents, 38.

CONTENTS.
Argyll, D. Vane, E (M. Londonderry.) Charnwood, L.
Westmeath, E. Danesfort, L.
Bath, M. Darling, L.
Lansdowne, M. Astor, V. Desborough, L.
Salisbury, M. Cave, V. Dynevor, L.
Cecil of Chelwood, V. Emmott, L.
Albemarle, E. Hutchinson, V. (E. Donoughmore.) Erskine, L.
Balfour, E. Forester, L.
Bathurst, E. Novar, V. Glenarthur, L.
Beauchamp, E. Sidmouth, V. Hastings, L.
Bradford, E. [Teller.] Ullswater, V. Hawke, L.
Clarendon, E. [Teller.] Younger of Leckie, V. Kilmarnock, L. (E. Erroll.)
Cottenham, E. Knaresborongh, L.
Coventry, E. London, L. Bp. Lawrence, L.
Denbigh, E. Norwich, L. Bp. MacDonnell, L.
Devon, E Rochester, L. Bp. Meston, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Sheffield, L. Bp. Monson, L.
Southwark, L. Bp. Mostyn, L.
Grey, E. Phillimore, L.
Lindsey, E. Aberdare, L. Raglan, L.
Malmesbury, E. Armstrong, L. Redesdale, L.
Manvers, E. Atkinson, L. Rowallan, L.
Mar and Kellie, E. Avebury, L. Ruthven of Gowrie, L.
Midleton, E. Balfour of Burleigh, L. Saltersford, L. (E. Courtown.)
Morton, E. Banbury of Southam, L. Shandon, L.
Onslow, E. Barrymore, L. Stuart of Wortley, L.
Scarbrough, E. Biddulph, L. Sydenham, L.
Stanhope, E. Brancepeth, L. (V. Boyne.) Templemore, L.
NOT-CONTENTS.
Haldane, V. (L. Chancellor.) Bertie of Thame, V. Joicey, L.
Churchill, V. Kintore, L. (E. Kintore.)
Rutland, D. St. Davids, V. Leigh, L.
Meldrum, L. (M Huntly.)
Dufferin and Ava, M. Arnold, L. Morris, L.
Linlithgow, M. Ashfield, L. Muir Mackenzie, L.
Askwith, L. Olivier, L.
Buxton, E. Beaverbrook, L. Rathcreedan, L.
De La Warr, E. Boston, L. Riddell, L.
Harewood, E. Buckmaster, L. [Teller.] Swaythling, L.
Mayo, E Desart, L. (E. Desart.) Terrington, L.
Portsmouth, E. Gainford, L. [Teller.] Thomson, L.
Russell, E. Gorell, L Wester Wemyss, L.
Strafford, E. Hemphill, L. Wharton, L.

The noble Earl said: I feel that I owe some apology to your Lordships for raising again the question involved in my Amendment, for it was discussed in your Lordships' House but a short time ago. Your Lordships will recollect that in the early part of this year, when a similar Bill, introduced by the noble and learned Lord, Lord Buckmaster, was discussed in your Lordships' House, I moved this Amendment. I may briefly describe the Amendment as being designed on behalf of the rights of the children, although perhaps my noble and learned friend, Lord Buckmaster, would not agree. This Amendment is entirely on behalf of the rights of the children, but it is on behalf of the legitimate children as against those who are legitimated by the marriage of the father with a previous mistress.

We have heard a very great deal, in the course of the debates on this Bill and on the previous Bill, as to the rights of the children. I confess, with all respect for my noble and learned friend, Lord Buckmaster, that I do not care for this Bill at all, because I think it is one of those Treasures which have become very common in these days and which, while seeking to redress a wrong, in reality inflict another wrong. Let me explain very briefly the object of the Amendment. Supposing a man has lived for a long or short period with a woman by whom he has illegitimate issue. He then marries a third person; that is to say, he contracts a regular marriage, and has issue. His wife dies and he then marries the woman with whom he had previously lived before his first marriage. From that moment the children born of his illegal connection with this woman become legitimated, and they share the father's fortune with the children of the first wife. Upon the last occasion my noble and learned friend, Lord Buckmaster, said that I had misread the Bill, and, in fact, that I did not understand it. He said that the rights of the legitimate children were protected, and he adduced various arguments to show that under settlements and so on, the legitimated children need not come in. I agree, but the legitimate children are not protected inasmuch as the legitimated children take a certain share of their father's fortune in the case of intestacy, and so forth, and, as years go by, they will take a further share.

It is really a question of the claim of the legitimate children, the children of the marriage, that I am asking your Lordships to consider this evening. I believe it was the old canonical law that subsequent marriage to a woman legitimated the children of an illegal connection. No doubt the moral was a good one, the assumed intention being that the man meant to marry the woman with whom he was living. But how can it be said that he ever intended to marry that woman when in the interval he has married another woman? His wife might have survived him by many years, and he would not then have had an opportunity of marrying the woman with whom he previously lived, it is said that the question of adoption becomes more important every day. Men who are childless often like to have a house made bright by the presence of children, and consequently, if there are no children of the marriage, a man has still the right to marry his mistress with a view to the children born out of wedlock becoming legitimate. They do not compete with legitimate issue, because there is none. I have distinctly put that proviso in my Amendment. It is only where there are children of the marriage that subsequent marriage shall not legitimate.

I do not want to take up your Lordships' time at this hour of the afternoon, when there are other things to be done, by arguing the point any further, but I should like to give another instance. We often hear quoted the example of other countries. We are fold that we ought to do this or that because other countries—it may be Scotland—do it. This argument is sometimes used in the case of Prohibition and other matters. May I draw an analogy from the law existing in another country? I believe that in France it is impossible for the parent of a family entirely to deprive his children of their rights to a certain share of the family fortune. That shows the position of legitimate children in France, and it would surely be very much better if we protected legitimate children in this country from being deprived of a share of their father's fortune, rather than make them share it with children of an illicit union who are brought in after many years. It is a blow at the sanctity of family life.

I hope I have succeeded in making my object clear and in obtaining some sympathy with the rights of legitimate as against legitimated children. I will put only one other point, and then I have finished. Suppose the case of a man who has lived with a woman and had children by her. He then marries another woman by whom he has a family. Suppose that in the interval, perhaps an interval of many years, that woman has been living with one, two, three or more men, and has had children by them. Does this Bill make it perfectly clear-perhaps my noble and learned friend will tell us this—that the children born of that woman by other men are not going to have the benefit of legitimation by subsequent marriage? I should like to hear the noble and learned Lord's view on that point. I beg to move.

Amendment moved— Page 1, line 14, at end insert the said new subsection.—(The Earl of Malmesbury.)

LORD BUCKMASTER

I can assure the noble Karl that nobody will be legitimated under this Bill except the illegitimate child of a man and a woman who subsequently marry. That, I trust, will relieve his anxiety concerning some aspects of the matter. As for the rest, the last Amendment was at least supported by the consideration that the illegitimate child who was to be excluded from the Bill was the result of an adulterous intercourse, and it was this consideration, I think, that influenced a very considerable number of your Lordships. The unfortunate child to be excluded under this Amendment is not excluded because it is the result of adulterous intercourse, but as being the result of an act of misconduct between a man and a woman who were not married at the time, and it is said that the subsequent marriage of either of the parties is to prevent the possibility of that child ever being made legitimate. I ask again, is that fair?

Let me assume that a man seduces a woman and leaves her. He goes away and marries. He may not even know, and in some eases he may not even care, what is the result. The woman whom he marries dies, and he comes back and finds that the other woman has borne him a child. Surely his right course is to marry her, and. if he marries her, why is not the child to be legitimated? What is there that takes that particular child out of the general category of children whom this Bill is designed to affect? If it be that your Lordships are to be influenced by that which you did on the former occasion, I will remind you that you unhesitatingly rejected this Amendment, and I trust that you will do so again.

VISCOUNT CAVE

I am sorry that I cannot support this Amendment. The reasons for it have been put with great force by my noble friend behind me, but, after all, I think the case for this Amendment is very different from the case for the last Amendment. In the ease here put, the parents of the child were person who, at the time of intercourse or at the birth of the child, could have married, and should have married. A marriage has intervened and has borne fruit, but I think that makes no difference to the general principle that when those people afterwards come together and marry this Bill ought to apply.

THE EARL OF MALMESBURY

After what has fallen from my noble and learned friend, Lord Cave, unless there is a strong feeling in the House that a decision should be taken, I do not propose to go to a Division. I have only one reply to make to Lord Buckmaster. He said: Consider the case of a woman who has been seduced by a man. I would remind him that there are many instances where very young men have been seduced by a woman. Our sympathies must entirely depend upon the merits of each case.

LORD BUCKMASTER

Does that make any difference to the case of the child?

THE EARL OF MALMESBURY

No, except that I was dealing with the case put by the noble and learned Lord However, I do not propose to ask the House to go to a Division.

Motion, by leave, withdrawn.

LORD BUCKMASTER

The Amendment I have now to propose is practically a drafting Amendment. As the Bill stands subsection (3) reads "satisfactory evidence," and my Amendment is to substitute "such evidence as appears to him to be satisfactory." It must be satisfactory to somebody, and the Registrar-General is the only person. If the Amendment of the noble Earl, Lord Midleton, is carried this Amendment may not be necessary, but for the moment, whether the noble Earl's Amendment is passed or not. I submit that the alteration which I propose makes the clause more reasonable.

Amendment moved— Page 1, line 20, leave out (" satisfactory evidence ") and insert (" such evidence as appears to him to be satisfactory ").—(Lord Buckmaster.)

On Question, Amendment agreed to.

LORD BUCKMASTER

The next Amendment, also in subsection (3), is obviously drafting.

Amendment moved — Page 1, line 22, after (" manner ") insert (", on such information ").—(Lord Buckmaster.)

On Question, Amendment agreed to.

THE EARL OF MIDLETON had on the Paper an Amendment to add at the end of the clause the following subsection:— (4) No person shall be legitimated, nor shall the birth of any person be re-registered under this Act, unless both parents shall avow in writing at or before the date of the marrage, the paternity of such person, and the regulations to be nude under this Act by the Registrar-General shall make provision for such avowals.

The noble Earl said: I make no apology for asking you to consider this Amendment. The course which this Bill has taken is perhaps known to some members of the House. We considered a Bill on these lines introduced by Lord Buckmaster, and it was sent to another place. The present Bill was taken up in another place without regard to the measure sent down by your Lordships, but as a matter of fact thirteen provisions in the Bill sent down by this House were novel inserted in this Bill in another place. The Amendment I propose was brought forward here, discussed fully, a protect was made by the noble and learned Lord, and the Amendment was inserted without a Division. In another place, a very eminent King's Counsel rose to pro pose the same Amendment. By a procedure which is, I believe, novel, the Speaker in another place has the power, when time is short, to select such Amendments as he thinks most necessary to be discussed, and this Amendment, amongst others, was ruled out as being one which must be passed over. In consequence, it was never discussed in the House of Commons at all, and the very obvious facts with regard to it were never put before the House of Commons.

What are those facts? As matters are now, two persons marrying, even after a long period of years, legitimate any previous offspring of their connection, and that offspring then ranks with the legitimate children of a previous marriage for the purposes of intestacy, or in any case where money has been left equally between all the children of a testator. Surely the least that we have a right lo ask is that those who come forward to redress a wrong shall not create a further wrong. What can be harder than for the legitimate offspring of a marriage to find that, subsequent to their mother's death, their father has re-married, without indicating what offspring he had before he married their mother, and that, on his death, they are forced to contest at law-claims which they have no means whatever of identifying, which they never had had put before them, and which were never, perhaps, advanced before their father's death.

It may be true that one child may be the offspring of the previous illicit connection. It may also be true that the same woman may have had three or four children by another man, never having seen the man whom she ultimately marries in the interval. The man may nor be aware of her relations with other men, and until his death the claims will never be made. Then will ensue a struggle between the legitimate heirs and persons who claim to be legitimated, and as to which evidence may not be forthcoming. In such a struggle the estate will be frittered away by the lawyers, I think the least we can ask is that those who seek to redress a wrong should make a clear statement as to who is involved in that wrong.

It has been pointed out to me that the wording of the clause, although drawn by high legal authority, does not provide for the case of those married in anticipation of this Act. or before the Act, and I propose to add at the end of my Amendment these words:— Provided that persons who have married one another before the passing of this Act may make their avowal in writing at any time within six months after the date of the passing of this Act. A provision for this shall be made within the regulations.

That, I am advised, will fully meet the case of any person married before the passing of the Act, who will then have six months in which to declare and reregister children registered in another name, so that evidence may be forthcoming as to what children are admitted by the parents as being children of their previous union. I trust your Lordships will give my Amendment the same consideration as you gave it before the last Bill left this House.

Amendment moved—

Page 1, line 24, at end insert: (" (4) No person shall be legitimated, nor shall the birth of any person be re-registered under this Act, unless both parents shall avow in writing at or before the date of the marriage, the paternity of such person, and the regulations to he made under this Act by the Registrar-General shall make provision for such avowals. Provided that persons who have married one another before the passing of this Act may make their avowal in writing at any time within six months after the date of the passing of this Act. A provision for this purpose shall be made within the regulation ").—(The Earl of Midleton.)

LORD BUCKMASTER

Naturally I would rather have my Bill as drawn, taut I know quite well that when this matter was before your Lordships on a previous occasion you took the view that something to this effect should be introduced into the Bill. It is obvious from what has taken place this afternoon that your opinion has not very materially altered from what it was then, and I do not desire to provoke a needless Division; but as the Amendment stands, even with the proposed addition, I cannot accept it. I hope, however, the noble Earl will be able to see that he can accept what I propose. If the noble Earl, Lord Midleton, will preface his Amendment by the words "In the case of the parents of an illegitimate person marrying after the passing of this Act," that will cover all the cases, after this Bill is passed, where marriage takes place.

The noble Earl's provision which is intended to meet that is not satisfactory to my mind, and for this reason. There is an obvious tendency whenever any matter is discussed to see how it bears in relation to your own immediate knowledge and experience, and you think of the people about you, and what they would do if they wanted to avail themselves of the privileges of this Bill. But the truth is that this Bill is only going to touch in the most remote manner possible people who are well-to-do. The people whom it is going to affect are the poor. It is among those people that you find the largest number of illegitimate children, due to a great variety of reasons. If the noble Earl's Amendment is accepted, even with the proviso that he has added, it will require that these people who have had illegitimate children, and have, married, shall within six months go and make an avowal before the registrar. But they may know-nothing about it. The idea that these Acts of Parliament are instantly known in every cottage is a pure fallacy. And they will find, after the six months have elapsed, that they are completely excluded from the provisions of this Bill. Where a man has actually married the woman he has done all he can, and yet if he does not make this avowal within six months the whole thing will be in vain. If the noble Earl will confine his Amendment to those who are married after the Act is passed then there is a distinct event, and it will be quite easy for them to discuss the matter with the registrar, and they can then make an avowal. Frankly I would rather not have this Amendment, but, if the noble Earl will meet me, I will meet him, and accept his Amendment with the addition of the words which I have suggested, which, I submit, are essential in the interest of poor and ignorant people.

LORD ASKWITH

I am very glad that the noble and learned Lord has made a move towards what the noble Earl has proposed. I have supported this Bill through all its stages, but on this point I think that the noble Earl has put forward a very reasonable point. The suggestion of the noble and learned Lord is that it should not be retrospective. There is a good deal to be said for that, and also for what he says that many of the people for whom this Bill is intended will not know anything about it. I would suggest, therefore, that the noble Earl and the noble and learned Lord should consider together, before the Report stage, what should be the exact wording of the Amendment. The noble Earl's proposal, as it appears on the Paper, does not satisfy me at all as to its drafting. It seems to me very cumbrous, and it also implies the principle of retrospective action from which your Lordships' House is very averse.

LORD PHILLIMORE

I hope no one will think that this Amendment is in any respect hostile to the principle of the Bill. But I do not think that the proposal of the noble and learned Lord, Lord Buckmaster, covers all the ground. The noble Lord who has just spoken says your Lordships are opposed to retrospective legislation, but this Bill is retrospective legislation. The noble and learned Lord's speech seems to me to be founded upon this fallacy, against which I hope always to have the opportunity of protesting in this Rouse, that you make people moral by passing an Act of Parliament to say that they are. He says: "Consider the poor people whom you want to make legitimate." For what reason does he want to make them legitimate? In order that they may succeed to property. It is that which is important, not the removal of a stain. I should scorn the idea, if I were a child of a poor person, that an Act of Parliament should be passed to say that in future I was to be deemed legitimate. Morality does not depend upon Acts of Parliament. The whole purpose of a Bill of this kind is really to deal with legal lights and legal property, and there is just the danger, which the noble Earl, Lord Midleton, has pointed out, that cases may be trumped up afterwards. The matter is the more important now that the noble Earl, Lord Malmesbury, has withdrawn his Amendment—more important because a man who has quarrelled with his son by a legitimate marriage may wish to injure that son by marrying his mistress and rehabilitating her child. It is to deal with the retrospective cases that a retrospective clause is wanted, and I submit that the form proposed by the noble Karl, Lord Midleton, is a better form than that of the noble and learned Lord.

VISCOUNT CAVE

This Amendment has been very reasonably met by the noble and learned Lord, Lord Buckmaster, but I am not convinced that the words which he suggests are free from real difficulty. After all, the one danger is that years hence, when both the persons in question are dead, somebody may rise up and say: "I was an illegitimate child of those persons," and, if you have not got the word of one or both of them, you may find false claims made which it would be very difficult indeed to set aside. That danger would not be met by the words which the noble and learned Lord has suggested. At the same time I can see that what he says deserves consideration, and, in particular, I think that it might be right to give more time than six months for this avowal to be made. You might possibly give a year, or even a longer time. That is a matter well worth consideration. I suggest that you should take to-day the Amendment of the noble Earl, as he has moved it, and that between now and the Report stage he should consent to confer with Lord Buckmaster, and see whether the form of the Amendment can be improved.

THE EARL OF MIDLETON

After the advice of the noble and learned Viscount I propose to press the Amendment now in the form in which it is down on the Paper, subject to what has been added. I would most willingly confer with the noble and learned Lord, Lord Buckmaster, to see that we are really meeting the case. But I would point out that this is a question about which there is an enormous amount of public interest and public knowledge. Questions of marriage are read and considered by the public a great deal more than some other questions that may arise in this House. And therefore I have no fear that there will be a general ignorance of the state of the law which would prevent the Act being taken advantage of, as the noble and learned Lord fears. I would ask your Lordships, then, to accept the advice of the noble and learned Viscount to insert this Amendment, undertaking that we will consider with the noble and learned Lord before the Report Stage what course should be taken.

LORD BUCKMASTER

That places me in an extraordinarily difficult position because if I accept the Amendment as it stands all that is left is the discussion between the noble Earl and myself. Although I have no doubt that the discussion will be a pleasant one I am by no means sure that I shall find him amenable to my view, and the result will be that I shall have the Amendment which I do not like recorded against me. I wish it were possible for the question that I have raised to be considered and discussed here to-day. I cannot see why people should apprehend all these difficulties, because when the noble Viscount says that people might arise in the future, people arise, to-day. There is scarcely an inquiry which takes place in the Court of Chancery to-day concerning the demise of an estate in which the same question does not arise, and I cannot see why it should not be possible to trust the Courts to fulfil the duty which they now discharge, of determining whether or not A is the child of B and C. It will end there, and I should have thought that was an abundant and sufficient safeguard. I do not believe that any human being has ever been so profoundly misunderstood as I have been by the noble Lord, Lord Phillimore. The idea that I suggested that you can make a man or woman moral by act of Parliament is one of the most astonishing perversions of my belief that I ever heard in my life.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

Clause 4:

Right of issue of illegitimate child dying before marriage of parents.

4. In the event of an illegitimate person dying before the marriage of his parents leaving any children or more remote issue then, whether such death occurred before the commencement of this Act or occurs thereafter, if that person would, if living at the time of the marriage of his parents have been legitimated by this Act, such children or more remote issue shall have the same rights under this Act of taking interests under any intestacy or disposition or of succeeding to an estate tail or other entailed interest as they would have had had the illegitimate person died immediately after the marriage of his parents, and that person shall for the purpose of the transmission of such right as aforesaid he deemed to be a legitimated person within the meaning of this Act.

LORD BANBURY OF SOUTHAM moved to leave out Clause 4. The noble Lord said: I desire to move the Amendment which stands in my name. Clause 4 says: In the event of an illegitimate person dying before the marriage of his parents leaving any children or more remote issue then, whether such death occurred before the commencement of this Act or occurs thereafter, if that person would, if living at the time of the marriage of his parents have been legitimated by this Act, such children or more remote issue shall have the same rights under this Act of taking interests under any intestacy or disposition or of succeeding to an estate tail or other entailed interest as they would have had "— and so on. I do not quite know how the noble and learned Viscount will support this clause after the Amendment which has just been put into the Bill by the noble Earl, Lord Midleton. That Amendment, as I understand it, makes it necessary that the parents shall say that the child is really their child.

What will happen if Clause 4 remains in the Bill? A person living with a woman has an illegitimate child by her and that illegitimate child grows up. He may become a person of not very good character and may live with another woman and have an illegitimate child by her. That person dies and after his death his parents marry. Then the child of the woman with whom he had been living, and who may have been living after that with other men and have had other children, can come forward—or even more remote issue still—and be legitimated. Unfortunately, I am not a lawyer—I often regret it—and therefore I cannot always understand the intricacies of Bills, but as I understand this clause it is in absolute contradiction of the Amendment which we have just accepted. It would be impossible at any rate for one of the parents, if he or she was dead, to say that the child was really his or her child by the other parent. The clause seems to me not only to be extraordinarily vague but extremely dangerous. The words "leaving any children or more remote issue" may entail any number of Tichborne cases and cases of people coming forward and making claims to estates.

What is the object of it all? Merely because certain people have been immoral and have done wrong the noble and learned Lord conceives that in the interests of the children you ought to do something. You might just as well say that when any illegitimate child is born the parents ought to marry and the child be legitimated. I hope the noble and learned Viscount will accept my Amendment, which really does not hurt the rest of the Bill but makes it a measure which is not so harmful as it would be if the clause were left in.

Amendment moved— Page 3, lines 5 to 19, leave out Clause 4.—(Lord Banbury of Southam.)

LORD PHILLIMORE

I hope the noble Lord will not press this Amendment. This is a very simple clause. It provides that the marriage of the grandparents shall legitimate their child so that the grandchildren might not suffer. It is merely the logical consequence of, and is consistent with, the rest of the Bill. As for supposing that it would interfere with the Amendment moved by the noble Earl, Lord Midleton, or that his Amendment in any way interferes with this, that is an entire mistake.

LORD BUCKMASTER

I, too, hope the noble Lord will not press this Amendment. It is certainly remarkable to what a confusion of ideas this little measure of mine has given rise. I cannot help thinking that there is some unhappy influence exuding from this Bill. If you look at the clause you will see what it does. It is the simplest thing in the Bill. It provides that if a child who is dead would have been legitimated had he lived his children shall none the less stand in the position in which they would have stood had he been alive and been legitimated. Is not that fair? If you are going to legitimate children at all, surely it is a most unjust thing that the mere death of the parent who was himself illegitimate and would have been legitimated had he lived should adversely affect his children.

VISCOUNT CAVE

This Bill gives rise to confusion, I believe, because the basis of it is that that shall be deemed to have happened which has not happened but which ought to have happened. But I agree with him that this clause is consistent with the principle of the Bill and is not affected by the adoption of the Amendment moved by the noble Earl, Lord Midleton. There will still have to be in these cases an avowal by the parents that the child is their child, and that avowal still has to be made within the proper time. If that avowal is made then the consequences laid down in the clause will follow. I hone that the noble Lord will not press his Amendment.

LORD BANBURY OF SOUTHAM

I am not sure whether I thoroughly understand what the noble Lord has said, but I gather from him that the Amendment of the noble Earl does make some difference. In those circumstances, unless I receive some further support, I shall not press my Amendment to a Division.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 agreed to.

Clause 6:

Savings.

(2) Nothing in this Act 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 this Act.

(3) Nothing in this Act shall affect the operation or construction of any will (including a codicil) coming into operation before the commencement of this Act, or of any settlement or other disposition (not being a testamentary disposition) made before such commencement.

LORD BANBUKY OF SOUTHAM moved, in subsection (2), after "before," to insert "or after." The noble Lord said: I hope the noble and learned Lord, Lord Buckmaster, after the generous way in which I accepted his view two moments ago, will now meet me and accept my Amendment, which really is a very simple one. The words in the subsection are:— Nothing in this Act 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 this Act.

I desire to insert, after "created before," the words "or after" the commencement of this Act, and I will explain why.

As I understand the Bill, and I have taken the precaution of asking the opinion of some one learned in the law, the result, unless my Amendment is put in and also the subsequent Amendment in my name which deals with the same point, will be this. I make a will, and I leave what estate I may have to my legitimate children. I may have made that will two or three years ago when I had no conception that a Bill of this sort would be introduced. If I had died then, or if I had died yesterday, or if I die before this Bill is passed, that will is legal, but if I succeed in living until after this Bill is passed then my will and my wishes are disregarded. In order to ensure that which I desire taking place I shall have to go to my solicitor, who probably will have to take the advice of a counsel learned in the law, and I shall have to make a new will. I do not see that anybody is going to gain any advantage from that, except the lawyers. Although I have a great respect for lawyers, I do not see that there is any advantage in giving them extra work.

All I ask, therefore, is that where a man has made a will, and has declared that his estate is to go to certain people, this Act shall not override his will. All I ask the noble and learned Lord to do is to allow a will which has been made to stand. Supposing I have changed my mind, having been converted by the noble Lord's eloquence to believe in this Bill, which at present I consider a bad one. I can go then to my lawyer and change my will if I am still of the opinion that I was two or three years ago. But why should I be put to the expense of going to a lawyer and changing my will? I earnestly hope that the noble and learned Lord will accept my Amendment.

Amendment moved— Page 3, line 35, after (" before ") insert (" or after ").—(Lord Banbury of Southam.)

LORD BUCKMASTER

The noble Lord cannot expect me to accept this Amendment, though he may hope that I will do so. Let us see what it is that he wants. This Bill provides that existing wills shall not be touched by the passage of this measure, but, after this Bill is passed and children are legitimated, why in the world should they not get the full benefit of this Bill and succeed just like legitimate children? That is what this Bill is for. The noble Lord seems to have fastened on to an estate tail, which he seems to think has some mystery or dignity attached to it, and to think that it ought to be the kind of estate in respect of which, if created after the passing of this Act, the descendant should be excluded from the benefit of the Bill. May I suggest to him this? If he really wants to save the expense of a lawyer let him simply put on the codicil of his will: "No person legitimated under the provisions of this Act shall take any estate under the terms of this will." He can then sleep in peace and save his costs. Really that is the whole thing, and no person who is going to make a will after the passing of this Act need be under the least doubt or apprehension. If he wants to exclude people half a dozen words will do it.

LORD BANBURY OF SOUTHAM

May I remind the noble and learned Lord what he said a few moments ago? He said there were a large number of people who would not know anything about the provisions of this Bill.

LORD BUCKMASTER

Poor people, and they have not estates entail.

LORD BANBURY OF SOUTHAM

I accept that. There are a great many people who, at the present time, have estates but are poor. I think that, as a matter of fact, they are poorer than those to whom the noble and learned Lord alludes. Let me thank the noble and learned Lord for his advice. It is always welcome. I only used my case as an illustration. I have had the good fortune to sit in this House and listen to the noble and learned Lord, and therefore I know what is going on, but there are a very large number of people who do not know what is going on. They do not see the reports of our debates, and they will not in the least know that they have to go to their solicitor and make a codicil such as the noble and learned Lord has suggested. Consequently their children may find that, contrary to the wish of their parents, some illegitimate children have succeeded to their property. I do not know what view your Lordships take of the Amendment, but I earnestly hope that you will endeavour to persuade the noble and learned Lord to accept it, or, if he does not, carry it on a Division.

On Question, Amendment negatived.

Clause 6 agreed to.

Remaining clauses agreed to.