§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Buck-master.)
§ On Question. Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF DONOUGHMORE in the Chair.]579
§ 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 lather 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.
§ LORD GORELL moved, in subsection 1, after "living," to insert "of if he have a child living." The noble Lord said: The point which I wish to bring forward by this Amendment is a fairly simple one, and one to which I drew attention on the Second Reading. If there were two children whose parents have been married after the birth of those children, and one of them died before this Bill came into operation, the result would be that you would have the children of those two in an anomalous position, in that the children of the first child who lived on after the operation of this Bill would be the children of a legitimated person, while the. children of a son who happened to go to the war and be killed would not be the children of a legitimated person. It is purely a question of status, and I think the justice of the proposal will commend itself to your Lordships. I notice that there is in the Bill one anomaly which these words will, I think, remove. In Clause 4 it is provided that if an illegitimate person dies before the marriage of his parents he may be deemed to be a legitimated person within the meaning of this Act. But if he dies after the marriage of his parents, and before this Bill comes into operation, he might still be illegitimate. I think the words which I have suggested in Clause I meet that point.
Page 1, line 11, after ("living") insert ("or if he have a child living").—(Lord Gorell.)
§ LORD BUCKMASTER
This Amendment deals with a very unusual set of circumstances, and I am not certain that it is necessary at all. As the Bill stands. Clause 1 provides:—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 … render that person, if living, legitimate …and Clause 4 provides thatIn 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 …his children can inherit as though they had been legitimate. It seems to me that the number of cases affected are not sufficiently important to render the Amendment necessary, and I think that its introduction might complicate the Bill, though in principle I have no objection.
If the noble and learned Lord can assure me that my point is met, I do not wish to press the Amendment, but, so far as I can gather from this complicated measure, it is not.
§ LORD BUCKMASTER
Will it meet the noble Lord's convenience if I promise to look further into this matter between now and the Report Stage and see whether there is any substantial reason for this Amendment?
§ Amendment, by leave, withdrawn.
§ VISCOUNT FITZALAN OF DERWENT who had an Amendment on the Paper to insert, in subsection (1), after "happens," the words "provided that at the time of the birth or at some time during the period of ten calendar months immediately preceding the birth of the illegitimate person the father and mother of such person could lawfully have intermarried with one another," said: My Amendment raises the same point as that raised by a later Amendment which stands in the name of the most rev. Primate. As the most rev. Primate's Amendment is clearer than mine I do not move.581
§ THE EARL OF MIDLETON moved, at the end of subsection (1), to insert: "Provided (hat in the case of any illegitimate person born after the passage of this Act such marriage shall take place not more than seven years after the birth of the illegitimate person." The noble Earl said: I had anticipated that the discussion 011 the Amendment of the noble Viscount who has just spoken would have taken place before this Amendment was reached, and I put down this Amendment on the assumption that the question of this Bill only applying to parties who were in a position to contract the marriage would hold good. I think it most important that the House should consider whether there should not be some limitation of time in the Bill in the interests of those for whom the Bill is chiefly introduced. At present it is open to any man to put off, from day to day and from year to year, the recognition of his liability to a woman by whom he has had a child and to whom he may have promised marriage. At present we are told that in a certain number of cases when a child is expected a marriage takes place. Under this Bill for the legitimation of the child there will be no such incentive to marriage.
§ What I desire to impose is some obligation, perhaps some assistance to the woman, so that she may obtain within some limited and reasonable period of time, that to which she has the right. If that is not done there is only too great a probability that the matter may be delayed from year to year, and the whole advantage which was intended to be conferred on the child by legitimation would surely be lost if it is delayed until the child has grown up under the stigma of illegitimacy which is only removed subsequently. Consider how it operates in questions relating to property. It is, of course, open to a man by testamentary disposition to do what he pleases, but we have to assume that which is the case—namely, that a very largo number of persons either rely on settlements which have been made, or the disposal of their property is decided by intestacy. Take the case of a man who has been married before, and who has had children. His wife die", and he forms, perhaps without the knowledge of anybody, least of all the children of his marriage, an illegitimate connection. He then waits, and under 582 the Bill is able to wait, until quite the end of his life, and then perhaps feels that ht; ought to bring his illegitimate children into line with his legitimate children, and accordingly he marries and suddenly discovers to the world and to his first family that he has another family.
§ I am not now discussing whether it is right or not that children who are not born in wedlock should share with those who are. That, is the assumption of the Bill. But surely, at the very least, it is incumbent on the man at the earliest; possible moment to make it clear to all, especially to those who are to be legitimated under the Bill. Under the Bill, however, the matter may be left until the end of life to be decided, perhaps, by a death bed repentance. I hope that the noble and learned Lord will see that it is really necessary that there should be some limit to the time in which those concerned should take advantage of the provisions of the Bill.
Page 1, line 14, at end insert the said new proviso.—(The Earl of Midleton.)
§ LORD BUCKMASTER
The noble Earl is right in saying that to a certain extent his Amendment is embarrassed by the fact that the Amendment standing in the name of the noble Viscount Lord FitzAlan has not been moved, because it is true that the one has a certain bearing upon the other. But the noble Earl who moved this Amendment has, generously as I think, avoided anticipating the discussion upon the Amendment which is to be moved by the most rev. Primate and has considered this matter entirely on its own merits. Now, so regarded, I hope he will forgive me for saying that I found it very difficult to understand what the merits were. The object and purpose of this Bill is to do justice to a set of unfortunate people who, through no sin of their own, have hitherto been outside the pale of the law in regard to the transmission of real and personal property. Why in the world one of those unfortunate beings should be excluded because his parents omitted for seven years to do the thing which was right, is a matter which I find it very difficult indeed to understand.
The noble Earl said that it would be a great hardship on the legitimate children if such a marriage as this, undisclosed 583 for a long time, was suddenly sprung upon them. Be it so. But this is not. a Bill for the disclosure of marriage at all, and whether the marriage was made immediately after the Act—and seven or ten or seventeen years after might just as well be put in—so far as the concealment of the marriage was concerned, it does not matter. The noble Earl's Amendment does not help the matter in the least. For the rest, his point, as I understood it, was that his clause might stimulate people into doing the thing which was right.
§ LORD BUCKMASTER
I cannot help thinking that it is a very mild form of stimulus that such a clause as this would provide. If people have done wrong and have omitted to do the best they can to rectify it until late in life, I cannot see why they should then be deprived of the means of putting the wrong right: and that is the purpose of this Amendment. I earnestly hope that those of your Lordships who have sincerely expressed your opinion that the principle of this Bill is right will not weaken that principle by accepting the Amendment.
§ THE EARL OF MIDLETON
With great respect, I really think that the noble and learned Lord has not met the force of my argument. My argument is that in a number of cases—I do not like to exaggerate, but I am told that in certain districts the cases are very many—marriage does not take place until after a child is expected, and the man wishes to make good to that child the right of legitimacy before it is too late. Now you take away the whole of that stimulus towards marriage and leave it to an indefinite period which I think may result in most unfortunate consequences and increase the number of those who suffer from the very disability which the noble and learned Lord desires to remove. I think that your Lordships will feel that the noble and learned Lord has not met that point in my argument, and that it is really incumbent upon us to fix some limit of time within which the operation of the Act shall take place.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
It is no doubt true, as the 584 noble Earl has said, that it is desirable to give a stimulus to marriage in the case of parents of illegitimate children, but the stimulus given by the noble Earl's Amendment is a very feeble one. Seven years— that is a very long period and, looked at from the other side, it may be a very disastrous period. It may be impossible for the parents to marry within seven years. One of them may be already married and the marriage may not be dissolved until after the seven years have expired. It is really a chapter of accidents to which this Amendment condemns the unfortunate child, and it seems to me that, assuming the principle of the Bill is to have effect, it is in the plain interests of the child (whom one is, after all, considering in this matter) that there should not be an arbitrary limitation of the time within which the marriage must take place, but that we should leave it to the operation of the general principle of the Bill.
§ LORD SHANDON
The object of this Bill, as I understand it, is to do a particular thing which is regarded as being right in the interests of morality and of common fairness—namely, that if a man has had illegitimate children by a woman, it should be within the power of the two, by marrying, to give those children a status which otherwise they would not have. That is either a right proposition or a wrong proposition. It seems to me to be right. It seems to me to be so absolutely right that I have always thought that our law on the subject was extraordinary. Why, then, should it be limited, and why should seven years be fixed? I should have thought that, although not intended, the fixing of a limit of seven years would have the very contrary effect to that which I am sure the noble Earl desires. People do go on hoping and intending to repent at some time. They put it off from day to day. The seventh year comes and there is still a good deal of life left. Why should not any man or woman have the right to do what is proper even to the last moment at which they can legitimately do it? With great respect. I cannot see any real principle in the noble Earl's Amendment. If the principle of the Bill is wrong, the Bill should not be passed; but I think it is right.
§ VISCOUNT CAVE
I must say that I am generally in agreement with the noble Earl who moved this Amendment, but I am father hoping that he will not press this Amendment to a Division. The point which the Lora Chancellor has specially emphasised is, I think, a good one. A man may have an illegitimate child and then may marry. That marriage may last for more than seven years and may not come to an end until later in his life. When it does come to an end he may desire to right the wrong which he has done, and make this child legitimate. This Amendment would make it impossible for him to do that. I think the Amendment leaves too much to chance and I hope that the noble Earl will not press it.
§ LORD WRENBURY
I should like to ask the noble Earl who moved this Amendment whether he has considered this case. Let us assume that the illegitimate child is the child of a married woman and that the marriage of the husband and wife continues for more than seven years after the birth of the child. If, after ten years, the husband dies and the wife marries the father of the child, he cannot legitimate that child. I cannot see why the child in those circumstances should he excluded from the benefit of the Act.
§ Amendment, by leave, withdrawn.
§ THE LORD ARCHBISHOP OF CANTERBURY moved to insert the following new subsection after subsection (1) : "(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 most rev. Primate said: The subsection that I ask your Lordships to insert in the Bill is one with which your Lordships are already perfectly familiar. It was in the Bill which was before your Lordships last year. It has had a some-what vacillating and adventurous career in the House of Commons. The Bill emerged from the House of Commons with this provision forming part of it. The Bill, when it came before your Lordships last year, contained this subsection, and I desire to see the omission of it now rectified by its re-insertion. This sub-section also corresponds with what has been from the first one of the arguments 586 used in favour of this measure, that it assimilates the law of England to the law of Scotland.
THE LORD ARCHBISHOP OF CANTERBURY
I do not think the noble and learned Lord has, but in the House of Commons that argument was constantly and, I think, rightly used. It carries very considerable weight with me. The law of Scotland, with the experience of centuries of its satisfactory working, has been one of the grounds which led me to vote for the Second Reading of this, measure. That has been constantly urged, and I think rightly urged, as a ground on which we can justify the passing of the measure as it came to us last year, or as it would be now if we inserted the subsection which I am venturing to ask your Lordships to restore. The experience of centuries in Scotland is not unimportant, because this subject has been again and again the subject not only of great lawsuits, but of debates in connection with the attempt made years ago to assimilate Scottish and English Marriage, Law.
I agree with this subsection not because of those technical reasons, but because it contains, in my view, a very large and important principle. It distinguishes between the principle that children who are born out of wedlock—born often by what is called pre-nuptial unchastity, which is bad enough; no one would imagine me to be belittling it —should be legitimated on the subsequent marriage of their parents, and the wrongdoing which is an act not merely of immorality, but of adultery as well. The arguments in favour of such a subsection as this are, I think, exceedingly strong. The noble and learned Lord, Lord Buckmaster, has urged upon us, in extremely forcible and eloquent terms, both last year and this, that what we have to consider chiefly in this matter—in one of his speeches one might say that he almost said it was the only thing we had to consider, though I do not stress that for a moment—is the wrong done to an innocent child who grows up illegitimate without having had any responsibility for wrongdoing in the matter. He goes through life with the stamp or brand of illegitimacy upon him. I entirely agree with the noble and learned Lord in the desire in every way we pos- 587 sibly can to remove that hardship, provided we can do it with fairness and justice to the community as a whole, and to the social life in which that child is to bear a part.
With most of what Lord Buckmaster has said on previous occasions with regard to the measure, and particularly with regard to this part of it, I should entirely agree. He has dwelt, I think conclusively, upon this point, that it is really to exaggerate and overstrain language—if it were not such a serious subject you would say almost absurd—to talk as some people have done about the certainty that the passing of a Bill of this kind will encourage immorality ; that is to say, that people will deliberately commit immorality because this Bill had become the law of the land. He has pointed out conclusively, and I entirely share his opinion on the subject, that immorality for the most part does not take place on the part of people who have thought out its remoter consequences, and who think logically of what it is going to lead to, but is due to impulse, or passion, or carelessness on these matters. But that must be qualified. Your Lordships are familiar with rural areas, and know that in some parts of England and Scotland what I call pre-nuptial unchastity is not unconnected with the thought that marriage is going to follow, and that, as they are accustomed to put it, the man "will make an honest woman" of the girl who has sinned; the marriage will take place. But, speaking generally, I do not argue that it is an objection to this Bill that it will in any large sense encourage immorality. There may be cases in which immorality may result, but I do not dwell upon that. I agree, on the whole, with Lord Buckmaster.
But it is quite a different matter when you come to the wrongdoing of a married man in which case the wrongdoing is not immorality only but adultery also. The reason for the difference surely lies in this. In this case a third party comes in, the wife, who did not exist in the other case. The wife of the married man is deeply concerned in what may take place in regard to the working of this Bill, if it should become operative, and. it is because I am certain that you would introduce mischief into married homes in England to an extent that few perhaps realise until they have gone into the subject, that I want specially to urge the 588 need for this provision. There are other arguments, but I want to dwell upon this one in particular. We are speaking here not of immorality only, but of adultery, and therefore fresh considerations of a very wide sort affecting English social life as a whole are introduced.
May I interpose a word about that aspect of the matter as an apology for claiming to speak with some certainty about this subject? It has been commonly said in arguments about these matters that they are mainly to be judged of by lawyers and great Judges like the noble and learned Lord, who have been able to give attention to these matters in the Law Courts and elsewhere. I believe that the knowledge of the Judges and of the Bar in this matter is as nothing compared with the knowledge of the clergy. You deal in your Courts of law with eases which have reached the point that brings them there, where quarrel has ensued, where wrongdoing has taken a gross form, and where mischief has become so patent that the matter has got in the Court, while we are dealing every day with the same question long before that stage has been reached, and are trying to the utmost of our power to avert that stage being reached.
I speak here not from conjecture, but from positive knowledge and experience. It is not long since your Lordships passed into law the Bill (for which I voted) which places women and men in the same position as regards adultery as a ground of divorce. Since that Bill has become an Act not once or twice, but again and again, I have had an appeal made to me either by the wife herself or by the clergy to whom such women have come—"Ought I, or ought I not, to divorce my husband? I know that on a particular occasion ha has committed adultery," or "he admits having committed adultery." I use all the influence I can to prevent the woman in such a case from taking divorce proceedings, urging that divorce in' these eases is extremely undesirable, and ought to be prevented to the utmost of our power. I am speaking here not of what I think might happen. I can give your Lordships examples within the last two months of four cases of that kind which have come directly to my own knowledge either from the woman herself, or from the clergyman whom she has consulted and who was puzzled what answer to give. 589 If that is the ease in my own experience I can imagine what it must be throughout the country as a whole.
What is going to happen if you pass this Bill without the subsection which I desire to see inserted? A man and woman are married. There is no child of the marriage. The man has sinned with someone else, and there is a child, or there may be more than one child. The wife knows it. She has not taken any action up to now. She could not formerly take any action, but she can do so now. Ought she to do so? I say, certainly not—if she is prepared to go on making the home happy and to condone the wrongdoing. But what will be the amount of pressure brought to bear on a wife if you pass such a measure as this without the Amendment I am moving? Friends of the mother of the man's children, possibly the man himself, will say: "Let us have a divorce and bring about an end of this home life, and start a new home life under different conditions." What about the innocent woman who is led, wheedled, I will not say coerced, but persuaded, into taking that step? She will find herself in a most pathetic position afterwards, and through no fault whatever of her own.
The noble and learned Lord, in admirably clear and eloquent terms, painted to us the picture, of the misfortunes which follow an illegitimate child through life. There are very few people who are aware of illegitimacy on the part of a man or woman after that man or woman has grown up. The woman to whom I am referring, the wife who has been persuaded into divorcing her husband because pressure has been brought upon her to do what the recent Act enables her to do, will never stand in the same position as she did before. It will be a position of extraordinary difficulty, and in my opinion a position of extraordinary wrong. We do not want, by placing in the hands of friends the means of bringing this pressure, to make it easier for divorce proceedings to be taken. Lord Buck-master does not share the opinions that I have on many occasions expressed about the increase of divorce facilities in England. He has always put his case with perfect fairness, great clearness and effectiveness, and has influenced many of us as we have listened to him. I want to pay him my testimony of gratitude for 590 the way he has brought forward this matter again and again. Bui some of us feel that an intense harm will be done to English life if you multiply the grounds upon which divorce can be given.
Divorces are far too frequent as things are, and if we have many more the country will regret it as the years go on. I think you would have a great many more divorces if you passed the present Bill without inserting some such Amendment as I have indicated. The noble and learned Lord thinks that the people of England are, as a whole, very desirous of having an extension of the grounds for divorce. I pay all respect to his judgment, but I differ from it entirely. I do not believe it is the fact. I do not believe that the masses of the English people have any such desire. On the contrary, I do not think that popular opinion is in the least in favour of increased divorce facilities. On that ground particularly I strongly urge the insertion of the Amendment, but I do it also on the largest grounds. I do not want to bring on to the same level what are at present on two different levels—the sin of immorality, or fornication, in the case of unmarried people, and the sin or wrong of adultery on the part of married people. This would go far to break down the distinction that has been held by people in the past and I urge your Lordships therefore, to accept the Amendment.
Page 1, line 14, at end insert the said new subsection.—(The Lord Archbishop of Canterbury.)
THE DUKE OF ATHOLL
I rise to support the Amendment of the most rev Primate and I feel that if it is not accepted the Bill, as it stands, has no chance of ever becoming an Act. No responsible Party in this House could pass such a Bill. Very cogent reasons have been put forward not only by the leaders of the Church but also by many eminent lawyers upon this matter, and it is with some diffidence, therefore, that I rise to give my opinion. One reason why I do so is that I understand that this Bill refers also to Scotland. We have an undertaking now from the noble and learned Lord in charge, of the measure that it does not.
THE DUKE OF ATHOLL
Yes, and, in any case, there is no object in applying it to Scotland. But there is no section in any Act in Scotland legalising adultery. I know of no body of public opinion, either in Scotland or England, that has asked for the law on this subject to be changed and for the reasonable protection which now exists to be taken away from a married woman for the benefit of a woman who has broken up her home. Anything that tends to lower the moral standard of this country cannot be good law or of benefit to the nation. I sympathise with the efforts of the noble and learned Lord in wishing to legitimate children of parents who are in a legal position to marry but have only done so subsequently. There are, of course, cases of poverty, mistakes and weakness, which can be put right in the interests of the parents themselves and general morality by marriage, and it is only fair to the children that this should be done. We have already secured that in Scotland, and I accept the assurance that this Act will not apply to Scotland.
§ LORD BUCKMASTER
If the noble Duke will look at the Bill and read it he will find that the last subsection is in plain language. It is that "the provisions of this Act shall extend only to England and Wales."
THE DUKE OF ATHOLL
I am not really dealing with the question whether it is a matter for Scotland, or England and Wales, but with a question of common public morality, which is quite another thing. The matter is very different in the case of children born of parents one of whom is already married, and I know of no civilised country—perhaps the noble and learned Lord can tell me of one—that has ever thought of going to the length suggested by the noble and learned Lord who has introduced this Bill. If the Bill is passed as it stands, there seems to me to be no reason at all why there should be any marriage, for it practically amounts to the introduction of free love or, as the other alternative, polygamy. We are told that free love is one of the Socialistic ideals, but I do not think that the noble Viscount, the Lord Chancellor, would tell us that this is one of his newly- 592 found ideals. I cannot imagine the Government supporting it. nor can I believe that noble Lords opposite, with their newly-found political souls, will tell us that this is one of the Socialistic nostrums which they support. If so, I hope they will get up and tell us so, and give us their reasons.
In effect, the Bill legalises all irregular connections of a married man. It is a direct invitation to crime to the husband or his paramour, and will bring misery to many wives. One of the great deterrents to an unmarried woman, one of the safeguards of her chastity in respect of connection with a married man, is surely the fact that, if she has a child, that child cannot be legitimated. We all, I think, appreciate the position of children born out of wedlock, and it is only right that we should do what we can to remove the stigma, the result of the fault of their parents. But surely it is sloppy sentimentalism run wild to break up married homes and remove the protection which a woman enjoys through matrimony in order to put in a position better than that of a wife the woman who is the cause of the whole trouble. In the case of the unmarried, I think it is right to consider the children first, or, in other words, the result of this wrong association. But surely, in a case where one of the parents is married, it is prevention that you want, and not to make it easier, or to do grave injustice and wrong to the married woman.
One could imagine the lengths to which a woman who has been frail, and who is ambitious or jealous, and a weak man who has lost his manhood might go to have their child legitimated. In her love for her child, in a desire to make herself a so-called respectable woman, she would stick at nothing short of murder, and not even at murder. A lovelorn fool or a knave of a man might do the same, or even worse, especially if he were anxious to legitimate a child, his own marriage having proved unfertile. He might so bully his wife that she would commit suicide. I am not exaggerating; these things have happened before, and with less provocation, if I may say so, than is contained in this Bill. Let me put it more strongly. A really good woman who loved her husband and found that he had a child by another woman, in order to give him the heir for which he was 593 longing and for whom she was longing, might even remove herself out of the way, from sheer love of her husband, in favour of the woman who had given her husband what she herself was unable to give him. What an unhappy ménage for that man and the other woman would be that which the noble Lord would set up !
If I may delay your Lordships for a few moments longer, I want to give you a very practical example. During the war the feelings of men towards women were very strongly and strangely moved. Many of us commanded large units of young men. They were the salt of the earth in many ways, but they were newly raised levies and had not learned the self-restraint and discipline which longer service in the Army would have taught them. Whole brigades were quartered in towns, and in many cases husbands were away at the front and the new recruits were billeted in respectable houses. The men made friends with many gills, and thousands met their future wives. We, of course, were only too glad of that, but in hundreds of cases a child was born while the man was abroad, and perhaps the father was killed. These men had been weak, but we can at least think that they meant honourably to fulfil their duty to the women who had given them their love. A Bill of this sort, for these unmarried girls and men, would at that time have been an act of common justice.
We, who were in command and responsible for these lads, were glad, so long as the whole thing was straight and above-board, to see honourable friendships between these boys and girls. We realised their temptations and we were not at all inclined to be too censorious. But what would have been said if we who were in charge had not expressed very stern official disapproval of any of our married men messing about with these girls, or breaking up the homes where they were quartered of women who were already married but whose husbands were at the front? In many cases, perhaps, the woman had no knowledge that these men were married. A Bill of this sort would have entirely neutralised our efforts, and would have left many of our men and women no better, in fact much worse, than the lower animals. I support this Amendment because I know, just as does the noble Lord who has introduced the Bill and just as do other noble Lords, if 594 there be any, who intend to support him, that this clause as it stands is wrong, and you cannot get out of it.
With regard to the whole question of legitimacy, it is right that children born out of wedlock should have the same chances as their brothers and sisters born subsequently in wedlock, so long as both the parents have been able to marry. To my mind this is more a question of property and material rights than of the morals of legitimation. It does not really matter whether a man is called legitimate or illegitimate, because, so far as I can see, the stigma will still be there if the matter is found out and is publicly known: and surely mere existence in this world will not make up to the illegitimate or legitimated child for the wrong that his parents have done him. It was the noble and learned Viscount on the Woolsack who, when Secretary of State for War, told us once, I think in another place, that he had earned the gratitude of all soldiers by calling the guard-room the room of detention. He said this would remove the stigma from an individual who might have been put into it. I believe—it was some time ago—that my retort, perhaps not a polite one, was that a rose would smell as sweet by any other name, and that merely altering the name would not make much difference to the individual concerned.
It may be necessary, for technical legal reasons, to alter the name, but it will not cure the cause. Rather, I think, will it increase it, and certainly, if the suggestion is carried out with regard to those who are already married, it will be a crime in my opinion to every married woman in this country. The only intelligible cases are those where a woman perhaps has deserted her husband, or is insane, or a hopeless drunkard, or something of that sort. That can surely be met, if necessary, by asking for a little longer restraint on the part of one of the parents to be, and making it easier to get a divorce in such special cases, which are more reasonable causes than many of the reasons for which divorce is now given.
§ THE LORD CHANCELLOR
My Lords, it the noble Duke who has just spoken will forgive me for suggesting it, I think he has put his case, in some parts at least of his speech, a little too high. He appears to have been under the appre- 595 hension, among other things, that this Bill was the outcome of the Socialistic tendencies of a Government which might extend its activities to the dissolution of the marriage tie in some way.
THE DUKE OK ATHOLL
The noble and learned Viscount could not possibly be so foolish, in my estimation.
§ THE LORD CHANCELLOR
I do not know what he thought of myself, but he suggested it of my colleagues. The short answer to that is that in rising to address your Lordships I am speaking only as an individual member of the House. The Government have taken no sides upon this point which we are discussing. They are favourable to the principle of the Bill, but they have taken no sides upon the question raised by the most rev. Primate.
§ THE LORD CHANCELLOR
The noble Duke will understand what I have said, and nothing more—namely, that we have taken no sides. I take one view, and my noble friend, the President of the Council, may possibly take a different view. We are discussing matters here merely individually, and I rise to address your Lordships not as a member of the Government but as a Judge of some experience of these matters, and it is to that point of view I wish to bring the discussion back. The noble Duke, and indeed the most rev. Primate, instanced the case of Scotland and the Divorce Law of Scotland as if there was something very admirable in it. There are some things in the law of Scotland which I consider simple abominations, but they have gone on unreformed because in some respects it is a very conservative country. The provision which makes the unfortunate person who has sinned forfeit all property as the result of divorce is a monstrous pro vision, as compared with the discretion given under the Divorce Laws of England to the Judge.
The law of Scotland which enables persons who have been guilty of adultery to legitimate their offspring is a provision which has a curious history. It is not a modern provision, nor is it very clear in its origin. It began under an 596 old Scottish Statute of the year 1600, which was passed at a time when there was no such thing as public opinion in Scotland, in the way we now know it. It has remained unchanged, partly, I think, because no one has ever taken up the law of divorce in Scotland systematically. It has gone on, and with that extraordinary power which Judges have in Scotland of dispensing with the operation of old Statutes, they have struck out of its effect that which is plainly there, if you look at the words of the Statute. The guilty parties are not to be able to marry again. The Scottish Judges got out of that by not naming the paramour in the decree. They have not extended that operation as they might have done to any other part of the Statute, but as to saying that the provision represents any settled opinion on the part of the people of Scotland, all I can say is that it has barely been discussed in public at all.
That brings me to the real gist of the question before your Lordships. I listened with admiration and with respect to the speech of the most rev. Primate. He spoke with strong conviction and great earnestness, and I concede at once the value of his experience. It is true that the Church sees more of these things than the lawyers do, but, on the other hand, I was profoundly impressed during his speech with this, that he was not giving much attention to what is the real point before the House. It is not a question of the guilty parties—of relaxing the law of divorce, or of doing anything for the guilty parties. It is a question of doing something for the innocent child, who has had no lot or part in the act of his parents. That is a very serious aspect of the case, which ought never to be left out of account in dealing with what we are dealing with now.
The, most rev. Primate suggested, and of course there is something in the point, that a woman might find herself much aggrieved if, being an innocent party, she thought that alongside her legitimate children there were to come in afterwards illegitimate children who had been legitimated and put upon the same footing as her legitimate children. I would, however, remind the most rev. Primate that there is a power freely exercised by the Judges of the Divorce Court, to make such disposition of property under the 597 existing contract as is required. Moreover, by the law of this country, whether proper or not, there is no provision which prevents a man from leaving his property away from his legitimate children in such shares as he likes. He can leave it away from his legitimate children and give it to his illegitimate children. In a state of freedom of that kind, I do not think there is much force in the argument against a clause of this kind forming part of the law.
But, after all, what is the main purpose of the clause and of the whole Bill? It is the child who is thought of in this Bill. He is the first consideration. The stigma of illegitimacy is a terrible stigma, and it is not one which you ought to leave standing if you can avoid it. The whole purpose of the Bill is to remove that stigma, and you remove it effectively in cases where adultery does not come in. But, so far as the child is concerned, what difference is there between the case where the parents have committed adultery and the case where they have not ? None at all. We are trying to bring about something in the interest of the child.
For my part I cannot see anything which gives any substantial encouragement to divorce in this Bill. It might have been right to take up the, line that you will have no dissolution of the marriage tie, and will do nothing for children born illegitimate in the way of legitimating them afterwards. But we have done something in the way of relaxing the, marriage tie. Only last year the most rev. Primate voted for a Bill, which became an Act, which extended the law of divorce, enabling a wife to get divorce for her husband's bare adultery. That shows that public opinion has forced a relaxation of the marriage tie. How far we should go in it, and where we should draw the line, is a question which we shall have an opportunity of discussing next week upon another Bill. But at present there is the principle. There is the fact that these children may be born with this stigma upon them and the question before your Lordships is one which has mainly to be governed in the interests of the children, and not by any imagined idea that you are giving some sanction to adultery by removing from children who are innocent a stigma which they have not brought upon themselves.
§ VISCOUNT CAVE
My Lords, I desire at the outset to say, as my noble and learned friend opposite said, that I am speaking for myself alone. Into these matters no question of Party can possibly enter, and we must each follow the line which we think to he right. I want to make one other observation arising out of the noble and learned Viscount's speech. Of course, we desire to consider the interest of the illegitimate child, but we cannot consider that alone. It is not only a question of this particular child; we cannot put out of account the influence of what we may do upon the whole marriage law and the social conditions in this country. And if we think, as I think, that the passing of the Bill without this Amendment would have a, most serious effect upon those conditions, it is an absolute duty to support the Amendment. About the Scottish law I will only say a few words, because it is a minor point, but this Amendment does bring the Bill into closer similarity with the Scottish law. I think that is a good thing, because I believe that the Scottish exception to the law of legitimation by a, subsequent marriage arises out of, and is founded on, long experience, and I think we ought to hesitate long before we adopt this feature of the Scottish law, while leaving out the exception which Scottish experience has imposed. But I leave that point, because it is only a small point, and I want to deal with the merits of the case.
The rejection of the Amendment will remove one sanction from the law which stands in the way of matrimonial infidelity. It is all very well to say that people who misconduct themselves are led away by their feelings, and that no sanction makes any difference. With all respect to those who say that, I cannot agree. The misconduct of married people is very often a thought-out and calculated thing. Someone is deceived, someone is betrayed by that act, and I think the people do think it out, and may be influenced for the better by the consideration that, if they misconduct themselves, not only they themselves and those whom they deceive but the children who may result from the illicit union will suffer some day, too. And if, say, a married man is striving to lead astray an unmarried girl, it will be some help to him if he is able to say, as unmarried men say to-day: "Well, yield to what I desire from you, and I will sec that before long 599 we shall be married, and that the fruit of our union shall be made legitimate". The fact that he cannot do that now is some sanction, slight if you will, but still some sanction, in favour of right conduct and against misconduct. And therefore I. bog the House not, without full consideration, to make a change at this time in our law which may have such a serious effect. I am not going to deal with what the most rev. Primate dealt with, although I entirely agree with his argument that the Bill without this Amendment may encourage divorce where divorce would not otherwise take place.
But I want to put a new point, which no one has yet put. To-day, by our law, if a child is born of a woman who is a married woman, the presumption is—in some cases the irrebuttable presumption—that that child is the child of the woman's husband. You have the presumption of paternity. A child born in matrimony is presumed to be the issue of the marriage. What is going to happen if you pass this Bill without this Amendment? You will have a most undesirable difference between the man who is the husband of the child's mother, and the man who claims to be the natural father of the child, as to whose child it is. You may have that point raised after the husband's death, when he can give no evidence at all. You will in certain cases, possibly, have inquiries instituted as the result of this Bill upon matters which to-day no Court will consent to inquire into at all. A man will say: "True, that child was born while the mother was married and while she had a husband other than myself, but I can show you that that is my child." And he will claim, and he will be entitled to claim, to give evidence on that point, and so to set up an inquiry which, I think, no one of us would desire to see. You will destroy in this way a very wholesome and useful presumption, and you may bring great injury upon people in years to come.
These points are so clear when they are stated that I need not dwell upon them, but I do say to my noble and learned friend in charge of the Bill that if he resists this Amendment, which I hope he will not do, he will alienate from his Bill some of the sympathy which now goes with it. People feel very strongly upon this question which we are debating, and I believe that if my noble and learned friend goes contrary to what 600 is a strong feeling of many, many thousands of people in this country, he will not advance, he will rather retard, the reform which he desires to see brought about.
§ LORD PARMOOR
My Lords, I desire with all my strength to support the Amendment of the most rev. Primate. As the noble and learned Viscount opposite has just pointed out, this is not a matter which is affected by Party political distinctions. In answer to the noble Duke, I should like to say that he seemed to suggest that the members of the Party with which I am acting now might have wholly immoral views as to what he called free love. I beg to say that I believe that the members of that Party are as earnest in maintaining a high morality in every respect as those of any other Party or any other body of men. And for my own part, as many of your Lordships know, on every occasion I have opposed any extension of the divorce law on grounds which I have often had to state in the hearing of this House. When that question is raised I shall, unfortunately, be away in Geneva, otherwise I should have opposed that Bill as heartily as I have done on previous occasions.
I do not want to go into the questions of Scottish law and English law to which the Lord Chancellor has referred. We are dealing with something which is not law at the present time, and can only become law if the Bill were passed without the Amendment suggested by the most rev. Primate. What is the argument that is put forward again and again with constant iteration? It is the argument of the innocent child. No one questions that argument for a moment. It is no good re-stating it in various forms. It is the whole basis of this Bill, and I am certain that the most rev. Primate has as keen a sympathy for the innocent child as the noble and learned Lord who is responsible for this Bill. But in talking about the innocent child you have to consider whether there are not other interests which must be protected. I do not desire to repeat what was said by the most rev. Primate, but he contended that without this Amendment the effect of this Bill (promoted, no doubt, on behalf of the innocent child) would be to break up according to his own knowledge—and no one has greater 601 knowledge of these matters than he has—the happiness of a large number of homes which at present are carried on under ordinarily happy conditions. My experience is not that of a lawyer. My experience is that of one who has a very intimate acquaintance with these conditions in the country, and it confirms every word that the most rev. Primate said.
When we come to the point which was chiefly dealt with by the noble Viscount opposite, can there be any doubt as to what the answer should be; I am not for the moment dealing with the question that you may be substantially advancing the cause of divorce. I think that is perfectly true. Apart from that, what are the conditions which would arise inevitably if this Bill were passed without the Amendment of the most rev. Primate? You would have the wife constantly threatened with the legitimation of a child born in adultery. There cannot be any-greater injury of one woman by another than that inflicted by an adulterous woman upon the legitimate wife. I do not think that the noble Duke put his case at all too high when he said that in such conditions one would expect not only great interference with home life, but tragedy and crime. If that is so, surely we must regard the proposal of the most rev. Primate as necessary.
Then there is the constant iteration of the innocent child argument—that we are seeking to promote the cause of the innocent child. But if in a minor number of cases—at least I hope so—the effect of the Bill is to break up or tend to break up home life, under the conditions stated by the noble Duke, then I say that the argument of the most rev. Primate is unanswerable on the ground of general morality and of the desire to protect the interests of home life. After all, morality in this country depends on the maintenance of the purity of home life. There is no need to shut one's eyes to that. Whether you legitimate a child or not, the fact of his illegitimacy may be, after all, a burden which he cannot escape. Let him escape it as much as he can, and let the innocent child be protected to the maximum extent that is right.
But is there any one in this House who would say that if the legitimation of the innocent child is likely to bring about 602 these troubles, and even crimes and impurity into the homes of the country, it should be carried out? I answer that question in the negative, and I hope that your Lordships, in going to a Division, will not be carried away by looking only to the innocent child, but that you will look at the, broader moral lines which really underlie the purity, of the home life of this country, the strength of this country and the morality of this country. I hope that you will accept this Amendment and take away the inducement which, in my belief, would bring about not only un-happiness but, very often and quite possibly, crime and tragedy into the ordinary married life of this country.
THE EARL OF KIMBERLEY
I hope that your Lordships will not accept this Amendment. The Amendment provides that "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." That is quite intelligible. But what of the ease of a young man who marries a charming girl and in less than twelve months is afflicted with madness and is shut up for life? He lives in that condition for fifteen or twenty years, and, possibly, his wife contracts another sort of relation and has children. When the husband dies she marries the father of her children. Are not they to be legitimated? Surely they ought to be. It seems very hard if they are not.
A great deal has been said to-night about the stigma attaching to illegitimacy. I have never felt that there was any stigma on a man who was illegitimate. He is more than probably the product of real love and he may have more brains than those who are born in wedlock The noble Viscount has said that the children born in wedlock have a father whom they know. My answer to the noble Viscount is that it is a wise child that knows its own father. If your Lordships accept this Bill, I ask you to do everything you can, as the noble and learned Lord said just now, for the child. The child has done no wrong. If you do it, it is no use doing it by halves. You must do it as thoroughly as you can. Whenever there is a new sort of Bill introduced into Parliament it is regarded as revolutionary and there is always something left to be done afterwards. I hope that your Lordships' House will pass 603 this Bill and have mercy on the child. I ask you also to reject this Amendment, because—The quality of mercy is not strain'd,It droppeth as the gentle rain from heaven.
§ LORD SHANDON
I may be wrong in my construction, and if I am no one will accept correction more readily than I ; but it seems to me that not only is the Amendment right but it is right from a purely social and legal point of view. I wish to endorse and adopt everything which was said by the noble and learned Viscount, Lord Cave, in regard to the serious nature of the alteration which would be made in the law if this Amendment were not accepted.
With regard to the observations of the noble Duke who gave us a summary of the situation in Scotland—and I would urge, in addition, what was said by other speakers, including Lord Cave—I would ask the House very strongly to consider the plain common sense view which his observations implied. The Scottish people in these matters have applied great common sense to the affairs of life, even very frequently where our own law is defective. They have adopted what was. I believe, the Roman law and the canon law in regard to illegitimate persons, and they have deliberately adopted certain exceptions which, with others, would be embodied in the Bill if this Amendment were accepted. But as I read this measure—I do not propose to trouble your Lordships with questions of construction—it appears to me to be this: Clause 1, taking it simply, makes every child who would be illegitimate, but whose parents have married after the birth of the child, legitimate. That is plain and simple. The next thing to notice is Clause 3. Clause 3 brings in future wills, settlements and other dispositions. In certain cases illegitimate children, in addition to legitimate children, have to be taken into account—a condition of things which may very frequently arise, even in the present time, in the construction of such settlements.
Coming to the Amendment, and taking it not at all from the canonical or the modern point of view, it comes to this—and on that ground alone I should be very much against the rejection of the Amendment. Under the Amendment it 604 is proposed simply that if a couple are married, and if there are illegitimate children born during the marriage of another woman, and if there is a divorce or death of one spouse, the illegitimate children, although they have come into the world while there has been a legal marriage, shall not be in the same position as if they were the children of the marriage. It is all very well to talk about the poor unfortunate children. We all sympathise, with them, but there are other people, too, who must be considered in the matter. Surely a wife who enters into a solemn contract with her husband that he will be, faithful to her, and he is entirely unfaithful, has to be considered. With the Bill as it stands, if there were legitimate children, and if the wife died, and there were afterwards a marriage with the paramour, that would legitimate all the children. That does not seem to be quite fair to the wife of the legitimate marriage, if my construction is right.
If it be right, and applies to Clause 3, then undoubtedly the dispositions in Clause 3 would be subject to the qualification of the contract. Why should it not? If I am right in my construction, why should not the contract of the parties exclude the case of children who were born under the conditions which are contemplated by this proposed Amendment? I am quite open to correction if my view is wrong. I think it does affect Clause 3, and I think it rightly affects Clause 3, but, whether it docs or does not, it at any rate is in conformity with the experience of one country adjoining our own. For these reasons, putting it not on the ground of ecclesiastical law but on the ground of sheer common sense, I think we should accept this Amendment. It has never been suggested in Scotland that this exception ought to be got rid of. Why should we proceed to make this extraordinary departure? After all, we are supposed only to represent what the average people of the country wish to have done. Does the ordinary man or woman realise that we are not only doing a very fair and a very just and lawful thing but that we are also creating exceptions contrary to the experience of neighbouring countries?
§ VISCOUNT FINLAY
I desire to say only a very few words upon this matter. I hope the Amendment proposed by the most rev. Primate will be accepted. It 605 seems to me that leaving the Bill without such a provision in it would deprive the Bill of the real foundation upon which it stands. I support the Bill cordially. I think every one feels that a Bill which has the object of enabling a man, so far as possible, to set matters right by marrying a girl with whom he has had relations resulting in the birth of a child, and making that child legitimate, is one that deserves all support. That is the true foundation of this Bill. But the way it is looked at is this. It is said the parties ought to have married at first. I think, however, that, marrying after a child has been born, it is a right and reasonable thing that the wrong that has been done should be so far as possible undone, and that the child should occupy the position which it would have had if the marriage had taken place in the first instance.
The Bill, as it stands without the Amendment which the most rev. Primate has proposed, introduces this into our law, that where the child is the result of a relation between two persons who could not have married, that child is to be legitimated. Where an unmarried woman's relations with a man have resulted in the birth of a child the thing is set right, and that is exactly what everyone would desire to see dome. We should set right, so far as possible, what was wrong. But where you have a person with whom marriage was impossible, owing to the fact that she was married already, having a child by some other man, that is another matter altogether. I think it would be a very great blot on this Bill if it remained without such an Amendment as that which the most rev. Primate has proposed.
The noble and learned Viscount opposite referred rather slightingly to the question of whether it would be like the law of Scotland or not. I am certainly not in favour of introducing everything in the law of Scotland into the law of England, or of introducing everything in the law of England into the law of Scotland. Each system has its own merits, and each system has, if I may venture to say so, its own defects, but I think in a matter affecting the Marriage Laws it is a great thing, so far as possible, to have the same law south of the Tweed as north of it. I cannot but regard it as a very considerable fact in 606 favour of the most rev. Primate's proposal that it would introduce into this Hill what is the law in Scotland.
But it is impossible not to look forward with considerable apprehension to the sort of inquiries you would have if the Bill passed in its present shape. A married woman has not been faithful to her husband. In such a case this Bill involves an investigation into the life she has been leading. Her infidelity may not have been confined to one man. Then the question arises which man is the father of the child. I agree with my noble and learned friend the noble Viscount beside me [Viscount Cave], who spoke earlier in the debate, that the more we abide by the good old rule of Pater est quem nuptiae demonstrant the better. If this Bill passes without the most rev. Primate's Amendment you might have a most unedifying competition for the honour of paternity. Is there going to be a process by which that may be adjudicated upon? I hope the House will not pass a measure which will give rise to discussions so piquant, and unedifying.
I feel that the absence of the Amendment would be a great blot on the Bill, and if it is to become law without the Amendment it is a question whether we should not be better without having such a Bill at all. I have supported this Bill, and I support it now, but I hope we shall not pass a measure of so illogical a character as this would be if this Amendment is not introduced. The object of the measure is to make the marriage effectual for the purpose of legitimating the offspring where the parents marry afterwards. But to make it effectual in a case where the parents could not marry because one of the parties was married is inconsistent with the whole principle of the Bill. I hope the noble and learned Lord will not be deaf to the appeal that has been made from so many quarters of the House, and will accept an Amendment which will only bring the Bill into harmony with the reasons which have led to support it many who, if such an Amendment is not included would regard it as a very unfortunate circumstance.
§ LORD BUCKMASTER
I certainly am not deaf to the arguments that have been urged in support of this Amendment. Indeed, they have convinced me once 607 again of the perils that await any man who attempts to legislate in your Lordships' House. I have introduced a measure which I believe, and still believe, is based upon a simple act of justice to a largo class of innocent and unoffending people, and I have been told that my measure encourages free love and polygamy, induces murder and suicide, destroys the purity of I do not know how many thousands of English homes, robs English women of their protection, will lead to an increase of crime, and will, in one short compass, really effect more devastating consequences than any measure I have ever known brought before your Lordships' House. I trust you will not expect me to examine in detail all these charges. They really all arise upon the consideration of the Amendment moved by the most rev. Primate with great consideration and courtesy to myself, an Amendment asking that from the benefits of this Bill a certain sot of people shall be shut out. They are the people who are born when one of their parents was at the time of their birth married.
In the first place no one can or will deny that the principle of the Bill is justice, and justice to the class of children who are born out of wedlock. This Amendment seeks to exclude from the benefit of that right a certain class of people who are just as innocent as those who are born when their parents were free. You will agree, if you are really and honestly satisfied and believe that the Bill is a just Bill, that the burden of showing reasons why any set of people should be shut out from the benefits of the measure is a heavy one, and requires something more than vague, inflammatory and denunciatory arguments for its support. I am glad that none of these epithets can be applied to anything that was said by the most rev. Primate. He realises what the Bill proposes to do, and he realises what he has described as the shallowness of the argument that suggests that the exclusion of this Amendment will promote immorality. He knows well that the suggestion that you can measure the passions which produce immorality by any nicely balancing of the less and the more, or any such consideration, is contrary to all human experience, and never arises in the course of practical life, except for the purpose of an argument in the case of a Bill like this.
608 The most rev. Primate abandons that, and I admire greatly his courage m doing so. Having abandoned that, what is left 2 This Bill as it stands is not going to encourage immorality. What is it going to do? This is what the most rev. Primate fears, and no doubt fears it sincerely. He fears that the effect of this Bill, in some way or another, will be to stimulate a married woman to deprive herself of the protection that marriage gives her, cast herself adrift from the marriage tie, and divorce her husband. Here I thought the most rev. Primate strayed a little into the realms of exaggeration when he said that it would, of his own knowledge, affect thousands of homes. I do not think so, and he will forgive me if I take advantage of that phrase. I do not think he meant that; nobody can say that. I would like to know what is the experience of noble Lords who have spoken and who have referred again and again to the pressure brought on a woman who knows her husband is living with a mistress and has an illegitimate family? How many such people are there? Is it the kind of thing a man confesses to his wife, that he is living with a mistress and has children by her? I have not had a wide experience—indeed it is a limited one—but personally I have never known such a case in the whole of my life. I think it may be reasonably admitted, having regard to the normal circumstances in which these offences occur, that it is not the kind of thing that is likely to happen.
What is it that is left? It is this. A man has committed adultery; his wife, by some means or another, knows it, and he friends of the man are assumed to induce the woman to divorce the man so that he may legitimate the child. That is really all that is at the back of this Amendment. Is it very likely? Is that the sort of thing that a woman is going to do—to divorce her husband, not because she wants to be quit of him (because, by hypothesis, she wants to retain him) but in order that he may give the title of legitimacy to other children, possibly in competition with her own? I should have thought that a more unsound hypothesis could never have been imagined as an hypothesis on which a great structure of argument could be built.
609 Then we come to a point which has boon repeated both by the noble and learned Viscount, Lord Cave, and by the noble and learned Viscount, Lord Finlay, and must obviously, therefore, demand attention, though I admit it has bewildered me. They say this: Assume a man and a woman married and the woman unfaithful. The woman has a child born in wedlock, due to relations with a paramour. That child is, under the present law, the legitimate child of the then existing union, and, unless bastardised, must so remain. It is now suggested that, unless this Amendment is passed, this is the terrible consequence that will follow: (1), the husband of the unfaithful woman will die; (2), her paramour will marry her; and (3), in order that he may create a totally new-legitimacy for the infant who is already legitimate by the law of this country, he will first of all proceed to bastardise him as the child of the existing marriage and will then proceed to legitimate him by marriage with the unfaithful woman. Really, when you are dealing seriously and gravely with grave and serious matters can you imagine a more fantastic hypothesis than that?
This really shows that at the back of this Amendment there is not, and there
§ cannot be, any solid substratum of fact upon which you can argue. There is nothing that you can do except to argue on a series of imaginations and hypotheses. If this Bill be right you must surely have some unusually strong case not merely for putting this special class of children where they were before—that is, with other illegitimate children—but for taking them out of the whole privilege and mercy of the Bill and putting them as a class by themselves, to remain illegitimate to the end of their days and incapable of inheriting property, while other illegitimate children can. Your Lordships are all familiar with the old appeal that to do a great right you should do a little wrong. I have always thought it a most unsound appeal, but this is a far graver appeal than that. This is an appeal that, in order that you may do a little, an imaginary, a conjectural, a highly hypothetical and, as I suggest to your Lordships, an improbable right, you are to do a very definite, a very real and a very measurable wrong. I ask your Lordships to reject the Amendment.
§ On Question, Whether the proposed new subsection shall be here inserted?
§ Their Lordships divided: Contents, 54; Not-Contents, 18.609
|Canterbury, L. Abp.||Chelmsford, V.||Kylsant, L.|
|Parmoor, L. (L. President.)||Finlay, V.||Lamington, L.|
|FitzAlan of Derwent, V. [Teller.]||MacDonnell, L.|
|Devonshire, D.||Merthyr, L.|
|Northumberland, D.||Hutchinson, V. (E. Donoughmore.)||Meston, L.|
|Lansdowne, M.||Ormonde, L. (M Ormonde.)|
|London, L. Bp.||Ponsonby, L. (E. Bessborough|
|Chichester, E.||Balfour of Burleigh, L.||Riddell, L.|
|Clarendon, E.||Biddulph, L.||Ritchie of Dundee, L.|
|Eldon, E.||Clanwilliam, L. (E. Clanwilliam.)||Rowallan, L.|
|Grey, E.||Shandon, L.|
|Halsbury, E.||Clwyd, L.||Shuttleworth, L.|
|Lucan, E.||Cottesloe, L.||Sinclair, L.|
|Malmesbury, E.||Darling, L.||Southwark, L.|
|Midleton, E.||Dynevor, L.||Stuart of Wortley, L.|
|Morton, E.||Emmott, L.||Sumner, L.|
|Strange, E.(Atholl D.) [Teller.]||Erskine, L.||Swansea, L.|
|Fairfax of Cameron, L.||Swaythling, L.|
|Glenarthur, L.||Wharton, L.|
|Cave, V.||Harris, L.|
|Haldane, V. (L. Chancellor.)||Bertie of Thame, V.||Lyell, L.|
|Churchill, V. [Teller.]||Muir Mackenzie, L.|
|Do La Warr, E.||Askwith, L.||Sandhurst, L.|
|Kimberley, E.||Buckmaster, L. [Teller.]||Stewart of Garlies, L.|
|Russell, E.||Gorell, L.||Thomson, L.|
|Strafford, E.||Hemphill, L.||Wrenbury, L.|
§ 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 had issue of that marriage before marrying the parent of the illegitimate person." The noble Earl said: In asking your Lordships to accept this Amendment I may say that I wish the noble and learned Lord who is in charge of the measure had seen his way to refer this Bill to a Select Committee, or to a Select Joint Committee, because the subject is one of great complexity, and many of your Lordships must be aware that it has not been adequately dealt with even in the long discussion to-night. I consider that the Bill, as it stands, deals a very great blow at marriage and home life. It deals that blow particularly in an age when we are told that the marriage ties are of less importance than they were before, and when the looseness of family ties is becoming the subject of universal discussion. We have also to look to the future, because it is likely that this Bill is only the beginning of further changes in our domestic life. In this Amendment I am not concerned with the case of the innocent woman who may become the victim of some man, or, indeed, with the lot of the illegitimate child. My Amendment is concerned principally with those whom we must not forget—namely, the lawful wife and the lawful children. For the moment I do not propose to deal with the hardship which may be inflicted upon the child who is born illegitimate. My Amendment, which I ask you to consider, comes into operation where a regular lawful marriage has interposed after the birth of a child or children to the mistress. In those cases I propose that if the man, after the death of his wife, marries his mistress, then this Act shall not operate to legitimate her children. A most horrible state of affairs will be brought about by this Bill if it passes into law without some such Amendment. It will render the whole domestic life of lawful children at all events one of extreme uncertainty.
§ My noble friend Lord Midleton, in the I speech which he delivered a short time 612 ago, pointed out very emphatically the uncertain position in which the child or children of a marriage will find themselves, with the possibility that all of a sudden, owing to the death of their mother, a new family may be imposed upon them of whose existence they had previously been quite ignorant. I am satisfied that this Bill, as it stands, does not safeguard the lawful issue of a man. The noble and learned Lord in charge of the Bill, when urging the case of these unhappy children, dealt with the wrong which the law at the present moment inflicts upon them, but if his vision is clear, and I think it is always clear, may I respectfully tell him that I think he does not quite see far enough, as to what hardships are going to be inflicted upon those who, after all, have the first claim upon the family life? I do not think that the case of a starving man watching another man eating an exceedingly good dinner, and longing to break the windows and share the dinner, is quite on all fours with my case. Civilisation has its hardships, and laws made by society for the maintenance of the social fabric must tend to hardship and inequality, but those hardships and inequalities are as nothing when compared with those which exist in uncivilised countries.
§ It is the law of this imperfect world that you cannot have regulations without inflicting hardship more or less upon everyone. I wish to remind noble Lords who have sympathy with the case of the bastard made legitimate by marriage with the mother, that I do not intend, whatever my opinions may be, to touch that case. My case is entirely one where a man has, so to speak, removed all probable chance of making any amends to the woman. The old canon law expressed approval of marriage legitimising issue born before marriage, but can it be said that that applied to a man who has put his whole life behind him, married, and become the father of legitimate issue? In so far as he knows, he will never have a chance of marrying the woman with whom he previously lived. His wife may outlive him, for all that he knows. Can it be said that that man ever had the slightest intention of marrying the woman with whom he had previously lived? As I have said, if this Amendment be not accepted, one of these days you will find cropping up cases of the greatest hardship, where strangers, utterly un- 613 known and entirely unexpected in the family of the wife, will be introduced not only to share the home but the estate and fortune of their father. I beg to move.
Page 1, line 14, at end insert the said new subsection.—(The Earl of Malmesbury.)
§ LORD BUCKMASTER
This Amendment is, of course, an extension of the Amendment that has just been carried. That Amendment was supported by your Lordships' House, I understand, on the ground that the issue of an adulterous union ought not to get the benefits of this Bill. This Amendment does not deal with the issue of an adulterous union but with the normal case of illegitimacy, only the man has interposed between his relationship with the woman and ultimate marriage with her a marriage with somebody else. If you get back to the principles of the Bill, and accept, first, that the Bill is intended to benefit the illegitimate child, and secondly, that it is intended to enable the parents, so far as lies in their power, to undo a wrong, and that those two principle's are to be carried out, unless it can be shown thereby that you are doing harm to somebody else, surely there can be no reason whatever for this Amendment, in which the child is born irregularly. I do hope that your Lordships will not further restrict the operation of the Bill by accepting the Amendment.
§ THE EARL OF MIDLETON
I think the speech of the noble and learned Lord is illustrative of his whole attitude in regard to the Bill. Everybody is to be allowed to do anything he likes, provided only that the child does not lose a chance of being legitimated. I should have argued exactly the reverse. By this Amendment another inducement which might have been given to a man to right a wrong which he has committed, is taken away. The noble and learned Lord opens the door. I suggest, to a very considerable possibility that a man at the very moment when he certainly must consider whether or not he means to do what is legitimate and fair by those who are suffering the consequences of his action, may say: "Well, I will not altogether close the door: at some future time I may right that wrong." I confess I do not see why the noble Earl. Lord Malmesbury, includes the necessity of another child being 614 born of the intermediate marriage, and I should have left that out of the Amendment. But certainly I think it is not a restriction of the Bill, and if the noble Earl were to divide upon the Amendment I should vote with him.
§ On Question, Amendment negatived.
THE LORD CHAIRMAN
I put the Question twice, and no single voice said "Content," and no single voice challenged.
THE LORD CHAIRMAN
I am afraid it is too late now. The Question may have been challenged the first time, but I am quite certain that nobody challenged it the second time.
§ LORD BUCKMASTER moved to add to the clause the words, "and such re-registration shall be effected in such manner and at such place as the Registrar-General may by regulations prescribe." The noble and learned Lord said: This is put in at the request of officials connected with the office for the registration of births, and the whole purpose is to facilitate registration, because without such an Amendment as this it will be necessary to re-register in the place where the birth was originally registered, which might be an extreme inconvenience and hardship upon the people.
Page 1, line 21. after ("person") insert the said words.—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
§ Clause. 1, as amended, agreed to.
§ Clause 2:
§ 2.—(1) A legitimated person shall, as respects intestacies occurring after the commencement of (his 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.
§ (2) A legitimated person shall, as respects intestacies occurring after the thirty-first day of December, nineteen hundred and 615 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.
§ (3) This section does not affect the descent of an estate tail or other entailed interest in real or personal property.
§ LORD BUCKMASTER moved to leave out subsection (1). The noble and learned Lord said: On the Second Heading of this Bill I pointed out that this subsection had strayed in from the earlier Bill, and that its presence was due to the fact that the date of the commencement of the Bill, in its former shape, was January 1, 1924, and that between that date and the date when the Law of Property Act would come into operation there would be twelve months, during which time the old law of the descent of real and personal property would remain, and this subsection was intended to meet that difficulty. As this Bill now synchronises with the date of the coming into operation of the Law of Property Act, I hope that your Lordships will omit the subsection.
Page 1, lines 22 to 28, leave out subsection (1).—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
§ LORD BUCKMASTEE moved to omit all words in subsection (2) after "legitimate." The noble and learned Lord said: These words, again, as your Lordships will see, relate to descent as heir. Descent as heir vanishes at the time when this Bill comes into operation. It is a descent under the old law, and the idea was that you should not be able to deflect the inheritance of the eldest son of real estate by virtue of this Bill, if the person who was in possession, to whom he would be heir, was a person of unsound mind. But, as the real and personal property would descend equally at the time when this Bill comes into operation these words again, would be unmeaning.
Page 2, line 3, leave out from ("legitimate") to the end of subsection (2).—(Lord Buckmaster.)
§ VISCOUNT CAVE
I want to ask a question about this Amendment. I understand there is a possibility—I do not know how much possibility—that the operation 616 of the Law of Property Act may be deferred for a time. If that should happen, this matter would have to be considered, and my noble and learned friend will not object to the insertion in the Bill for postponing the operation of that Act some words which will keep this provision alive.
§ LORD BUCKMASTER
It is a very difficult thing to pledge oneself definitely in advance, and I never like to do it because it may give rise to misunderstandings hereafter; but certainly that is my wish.
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ LORD BUCKMASTER moved to insert the following new clause after Clause 2 :—
§ Right of an illegitimate child and mother of illegitimate child to succeed on intestacy of the other.
§ ".—(1) Where, after the commencement of this Act, the mother of an illegitimate child dies intestate as respects all or any of her real or personal property, the illegitimate child shall be entitled to take any interest therein to which he would have been entitled if he had been born legitimate.
§ (2) Where, after the commencement of this Act, an illegitimate child dies intestate as respects all or any of his real or personal property, his mother shall be entitled to take any interest therein to which she would have been entitled if the child had been born legitimate and had been her only child.
§ (3) This section does not affect the descent of an estate tail or other entailed interest in real or personal property."
§ The noble and learned Lord said : As the law stands to-day an illegitimate child is not the next of kin of its mother. I must say that I think it is the most astounding illustration of the folly that the law can commit. If there is one fact that is indisputable, and if there is one relation that no law can touch or change, it is the relationship of mother and child. You cannot get away from that. Yet to-day, if a man is born illegitimate and dies possessed of property, his mother cannot take it; she cannot have any interest in it. She is a stranger under the law to this man, who has neither mother nor next of kin nor any relationship known to the law. This new clause is intended to provide a remedy for that state of things and to provide that from 617 and after the passing of the Bill the mother may be regarded as the next of kin of her illegitimate child, and that the child may be regarded as the next of kin of his mother. If you are talking of simple and natural justice, nothing can be more natural and just than that.
Page 2, line 9, at end insert the said new clause.—(Lord Buckmaster.)
§ THE LORD CHANCELLOR
This clause deals with a matter which is outside the general scope of the Bill but is within its title, and it is quite legitimate, therefore, to move it. It is a clause which only does partial justice. It deals only with the case of a mother and her child ; and, of course, to cover the whole field you would have to take in other cases on the same footing. However, I raise no objection to it. I am only pointing that out.
§ On Question, Amendment agreed to.
§ Clause 3:
§ Future wills, settlements and other dispositions.
§ 3.—(1) In this section "disposition" means a will (including a codicil) coining into operation after the commencement of this Act, and a settlement or other disposition made after such commencement.
§ (4) Where property real or personal or any interest therein 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 "ever the property or any interest therein from such dignity, but 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.
§ (5) This section shall take effect subject to any contrary intention expressed in the disposition.
§ LORD GORELL moved to leave out subsection (4). The noble Lord said: I do not think it is necessary for me to say very much about this Amendment. I move the deletion of subsection (4) partly because I am unable to understand it and partly because, so far as I am able to understand it, it seems 618 to be contrary to the whole of the rest of the Bill. It affects only those whose parents have any right to a dignity or honour. I see no reason whatever for discriminating, for example, between the illegitimate child of a knight and the illegitimate child of a baronet, and that is what this subsection seems to me to do. I am not quite clear what else it does. Under subsection (1) it is quite clear that no one can have any interest in real or personal property which he would not otherwise have had. Perhaps, if this subsection does not go against the main principle of enabling justice to be done to the child, the noble and learned Lord will further explain it to me, and then I will say what more I have to say when I come to my Amendment on Clause 6, subsection (1). In the meantime I beg to move.
Page 2, line 34, to page 3, line 4, leave out subsection (4).—(Lord Gorell.)
§ THE LORD CHANCELLOR
I hope that my noble friend will not press this Amendment. When this Bill was considered (and it was very carefully considered), the advice was taken of some of the most competent conveyancers in the country. There are complications in regard to title which would be inevitable unless provision was made such as that contained in the subsection which is moved to be left out. The Bill is limited in such a fashion as to make sure that in cases where there is a limitation of property to go along with the dignity or title of honour—and this is a very common case—that limitation is preserved and not broken into by the principle of the Bill. I do not say that there are many cases of that sort, but there are a number, and if this subsection was not put in, the complications in regard to property would be very substantial.
I am afraid that the explanation given by the. noble and learned Viscount has not enlightened me very much, though, of course, I accept his assurance that this provision is necessary.
§ LORD BUCKMASTER
If the noble Lord will look for a moment at Clause 6 he will be enlightened. That provides that this Act shall not operate to change the course of the descent of honours and titles which would otherwise go along 619 their present determined lines. The subsection which he wishes to strike out is that which affects the descent of property which follows a title of honour. If he wanted to eliminate Clause 6 then I quite agree that subsection (4) should go as well, but while Clause 6 is in subsection (4) ought to remain.
§ VISCOUNT CAVE
I hope that the House will not eliminate this subsection as there is strong objection to eliminating Clause 6.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clauses 4 and 5 agreed to.
§ Clause 6 :
§ 6.—(1) Nothing in this Act 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 such dignity or title.
§ (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 GORELL moved to leave out subsection (1). The noble Lord said: The fate of this Amendment has, to some extent, been anticipated by the intimation of the noble and learned Viscount (Lord Cave) opposite that he is going to object to the elimination of this subsection. I am sure that I cannot see any possible ground in logic or reason for making this discrimination, or why one should treat the illegitimate son of a knight differently from the illegitimate son of a baronet, or a member of your Lordships" House. It seems to me indefensible, when you have two people in the country whose property is contiguous, that the son of the knight who occupies one place should be legitimated entirely under the Rill while the son of the baronet next door is legitimated to an extent, but cannot succeed to the 620 title. There might be very great complications. A man has a son, and afterwards marries and legitimates the child. Then the father might be made either a member of your Lordships' House or a baronet. For some years that child would have been regarded as in all respects legitimate, but when the father is made a baronet or a member of your Lordships' House this discrimination at once operates, and that child is no longer legitimate for all purposes. I do not wish to say any more, but I simply cannot see any possible ground in logic or reason in support of this subsection and, therefore, I beg to move that it be deleted.
Page 3, lines 27 to 30. leave out subsection (1),—(Lord Gorell.)
§ VISCOUNT CAVE
I think this subsection was the subject of debate during the passage of the Bill last year, and was accepted by this House and by the other House also.
§ VISCOUNT CAVE
At all events, it was accepted in the other House. I think the meaning of it is pretty plain. A dignify or title of honour is a special grant. It is limited by the grant to legal heirs of the grantee, and if you are going to bring in persons who are not legal heirs of the grantee, but who are simply brought into his family under this Statute, you will alter the course of the grant, and you will deprive someone who would otherwise be perfectly entitled to succeed to the title and to all the rights as the legal and proper person to have the title. I think this ought to remain in a Bill; there would be grave objections to removing it.
§ LORD OLIVIER
I think it is obvious that the remedy to which the noble Lord. Lord Gorell, should look forward is the future abolition of hereditary titles.
I think I am right in saying that the whole purpose of the Bill is to make those who would otherwise be illegitimate into legal heirs, not 621 affecting anybody at the present time but: only operating in the future. I thought that was the whole purpose of the Bill; therefore, I cannot sec the force of the objection that the noble and learned Viscount has made
§ LORD BUCKMASTER
So far as I am concerned, if the noble Lord can persuade your Lordships to accept the Amendment, I raise no objection. I am bound to say that I thought it would be a difficult task, but if he can succeed in it I wish him well.
§ THE LORD CHANCELLOR
I foresee that this Amendment, if accepted, would involve complications which I do not like to face. As was pointed out by the noble and learned Viscount opposite (Viscount Cave) dignities are limited by Letters Patent, and in various manners they express a legal line of succession. To make an alteration of this kind would be the cause of great complication, and I trust your Lordships will not accept this Amendment.
§ On Question. Amendment negatived.
§ Clause 6 agreed to.
§ Remaining clauses agreed to.