§ Order of the Day read for receiving the Report of Amendments.730
§ Moved, That the Report be now received.—(Lord Buckmtaster.)
§ LORD SHANDON
My Lords, after a consultation with some other Lords I think is right that I should take this opportunity to mention a matter which some of us forgot—I certainly did—when the Bill was in Committee. I mention it now solely that the noble and learned Lord who has charge of the Bill should be made aware of the views which have occurred to some of us, for consideration as to whether the matter should be dealt with. The Bill provides that in certain circumstances persons should be treated as legitimate. That is the case where the parents have married, although the child was born before marriage. With that proposition we are all in sympathy, and with the Bill we are all in sympathy.
But, unquestionably, some matters seem to have been omitted, and I shall refer to one of them now which will be obvious when it is mentioned. It was only suggested to me when, for the purpose of obtaining information, I happened to look at the French Code to see how the matter was dealt with there. There is a case, not, I should say, a very uncommon case, of a man having relations with a woman who does not confine herself to him. She has a child. That child may be his, or it may not be his. Afterwards the two may marry. Now prima facie it would be open to any such child, even after the death of the parent, to raise the question that he was the child of A. and B. who were subsequently married and that he was legitimated by reason of that marriage. A thing of that-kind would certainly lead to very considerable embarrassment, I should have thought, having regard to the fact that the Bill naturally leaves our law of evidence on the matter just as it was.
It is of course, in theory open to any person who disputes the parentage of a child to prove that the child was not the child of A. and B. But it is an extremely difficult thing to do, I should have thought, in the circumstances. That our neighbours on the other side of the Channel must have thought so, too, is shown by the fact that they passed at least four amending Statutes to the 731 original Code, the last of them dealing with this very question. From that I assume that it is not a mere theoretical case, but one which has actually arisen. Had it not escaped my attention when the Bill was in Committee, I should have proposed to deal with that question in some way ; but I must confess that there is a good deal of practical difficulty in dealing with it, unless we adopt the procedure which is followed in other countries, and I should not be in favour of that procedure.
It is quite simple and effective. With regard to the case which I have put, one section of the, Act of 1912 amending the French Code deals with it in this way : If a child is born of a woman who at the date of the birth was leading a notoriously immoral life, in that case prima facie the child was not to be recognised unless the parties had in some solemn way declared that it was their child and not the child of this woman and some other man. Whether it is feasible to deal with such a case in this particular Bill I do not for a moment express an opinion. It is easy to do it on the basis of the French system, but it is not easy to do it with our system ; and for this reason. In order that the legitimation should be effective under the Code, you must have a solemn act of some kind. You must either have something notorious—a declaration before the marriage, or a declaration at the marriage, or a declaration subsequent to the marriage. We have set our faces, and I certainly set my face, against these technical methods of doing things which are common and natural to other codes but are not common and natural to our procedure. We should leave the matter to be proved and any evidence which was material would be accepted.
I thought there was a subsection which would have dealt with the matter, and that was subsection (4) of Clause 1, which is as follows :—(4) The Registrar-General may on production of satisfactory evidence, authorise at any time the re-registration of the birth of a legitimated person, and such re-registration shall be effected in such manner and at such place as the Registrar-General may by regulations prescribe.Unfortunately, it does not deal with it, because it is not obligatory, and I do not know whether, in such a case as I have 732 put, it would be feasible at all to make it obligatory. I greatly doubt it. But there must be some solution of the matter, short of the drastic system of requiring an act of an unequivocal nature ; otherwise, I should have thought that difficulties of a very unpleasant character might arise. I have no intention now of moving an Amendment, and I should not like to delay the passage of the Bill here, but I think it is right I should mention something that seems to me, rightly or wrongly, to be a point that ought to be covered if it can be covered. I mention it so that the noble and learned Lord in charge of the Bill may consider it if he thinks it worth while, and raise it perhaps m another place.
§ LORD BUCKMASTER
My Lords, it is obvious that whatever point it is that the noble Lord desires to call to your Lordships' attention, that might better have been done on the Second Reading of the Bill on the Motion that the Bill should be committed, or by amendment in the Committee stage. That he recognises himself. He states that he does not propose to move any Amendment, and I am not certain whether his observations are directed against the Motion that the Report be now received or for any other purpose. I am not prepared to accept any postponement of the Report stage of the Bill, and I press the Motion that the Report be now received.
§ On Question, Motion agreed to.
§ Clause 1 :
§ Legitimation by subsequent marriage of parents.
§ 1.—(1) Where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in England or Wales, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, which last happens; and such person is in this Act referred to as a "legitimated person."
§ (2) 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.
§ (3) 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.
§ (4) The Registrar-General may, on production of satisfactory evidence, authorise 733 at any time the re-registration of the birth of a legitimated person, and such re-registration shall he effected in such manner and at such place as the Registrar-General may by regulations prescribe.
§ LORD GORELL had an Amendment on the Paper to insert in subsection (1), after "living," "or he have a child living." The noble Lord said : My Lords, this Amendment was one which I moved during the Committee stage when I gave your Lordships my reasons for moving it. The noble and learned Lord in charge of the Bill was kind enough to say that he would look into the matter between then and now, and on that understanding I withdrew my Amendment in Committee. He has been courteous enough to inform me that, having looked into it, he does not think there is any objection from his point of view to the inclusion of the Amendment and, therefore, I move it again. It is one that affects only a small number of people ; but I think it gives them rights which it is the purpose of the Bill to give to others, and I hope there will be no objection to its inclusion. The Amendment has been misprinted on the Paper. I think the word "if" has been omitted, and the words that I move in, after the word "living," are" or if he have a child living." I beg to move.
Page 1 line 11, after ("living") insert (" or if he have a child living ").—(Lord Gorell.)
§ LORD BUCKMASTER
My Lords, the noble Lord has stated quite accurately what transpired with regard to this Amendment. I think it is possible that, in certain events which may be rare, there might be people excluded from the benefit of the Bill if this Amendment is not inserted. If your Lordships have no objection to its insertion I have no desire to oppose it.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
My Lords, I have something to say about this Amendment, not so much from the point of view of those who would be excluded as from the point of view of those who would be included if the Amendment were accepted. Take this case, which I will give your Lordships. A. dies intestate in 1927, leaving no lineal descendant or ancestor, and no brother or sister, but leaving a cousin B. the son of an illegitimate brother of A.'s father. 734 B.'s father was born a century earlier, in 1827, His parents married in 1830 and he died in 1860. Under the Bill as amended, if B. could prove these facts he would succeed as next of kin of A. It seems to me that the Amendment would involve going into questions of remote history and not really to be required for the purpose of the Bill, which is to remove a stigma attaching to living persons and not to cure blemishes in pedigrees. I am prepared not to object to this Amendment, subject to the Government being free to put in at some later stage, if it is thought desirable, an alteration to meet the point which I have indicated.
I should be prepared to accept that, but I do not quite understand one observation of the noble and learned Viscount. He said, in regard to the rather difficult case that he mentioned, which I confess I was not entirely able to follow, that if the person referred to was able to substantiate those elaborate facts he would succeed as next of kin. Surely, the third subsection of this clause rules out all question of succession. It is purely a question of status. I should like the Amendment put in. I understand that if the experts later consider it unnecessary or dangerous, an alteration will be proposed, and I should raise no objection whatever to that.
THE EARL OF CRAWFORD
After what has been said by the noble and learned Viscount, we shall agree that this is an important matter, and I think it should be put right in this House and not left to a later stage. I therefore suggest that it should be put right on the Third Reading, if necessary.
§ THE LORD CHANCELLOR
My Lords, the Amendment is not mine. I had an objection to the words as I have stated. I am in your Lordships' hands in this matter, and have no views as to whether it should be done here or elsewhere. I do not think there is much danger in leaving the matter open. All I want to do is to protect myself, so to speak, and keep the matter open.
The words should not be as they are printed on the Paper, but should read "or if he have a child living." The word" if "has dropped out.
§ On Question, Amendment agreed to.735
§ LORD BUCKMASTER moved, in subsection (1), to leave out "which" [" which last happens "] and insert "whichever." The noble and learned Lord said : This Amendment can hardly be dignified as even a drafting Amendment. It is strictly a grammatical Amendment. I ask to substitute the word "whichever" for the word "which."
Page 1, line 13, leave out (" which ") and insert (" whichever ").—(Lord Buckmaster.)
§ On Question, Amendment agreed to.
THE EARL OF MALMESBURY moved, after subsection (2), to insert the following new subsection:—
(3) 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 surviving issue of that marriage before marrying the parent of the illegitimate person.
The noble Earl said : My Lords, when this Bill was in Committee of your Lordships' House I moved an Amendment of a somewhat similar character. The object of the Amendment is to provide for the case of a man who had lived with a woman by whom he had issue, had subsequently married another woman and had legitimate issue. In the event of his lawful wife dying, the man in question might then, after many years had elapsed, think it his duty, for the sake of making amends or for some other cause, to marry the woman with whom he had lived and by whom he had illegitimate issue previous to his regular marriage. In this case the legitimate offspring of the wife might suddenly find themselves compelled to share the father's fortune with bastard children, brought in years after their birth. I think your Lordships must, on reflection, surely agree that this is a most important Amendment, if the rights of the legitimate offspring are to be safeguarded.
§ This Bill is an extremely dangerous one, and I should be sorry to see it pass into law without its being amended in this respect at least. I am not concerned very much at the moment with the mistress, or the wife, or the illegitmate children. I am far more concerned about the rights of children born in lawful wedlock, and with the status of the family in general. This Bill seems to me to be one of those hysterical efforts which, if the noble and learned Lord will forgive me for saying 736 so, while it seeks to right a wrong in one direction, is in fact going to impose hardship in another.
§ I was much interested in what understood was said by the noble and learned Lord, Lord Shandon. Suppose, for example, a woman lived first with one man by whom she had issue, but that man then proceeded to make a regular marriage. His wife dies, and, after many years he marries his old love with whom he had formerly lived. Suppose the woman, in the meantime, had lived with one or two, or even more men at irregular intervals. Are we to suppose that any illegitimate children to which she might have given birth are to be legitimated by her subsequent marriage to the first man ? Is he to carry the burden of all her irregular connections ? This is a point upon which your Lordships ought to be quite clear. I believe the canon law recognised the legitimation of illegitimate children by subsequent marriage of the parents, but that was surely where the marriage took place fairly soon, and without the interposition of another marriage. How can it be said that if a man makes a regular marriage after living previously with another woman, he ever intended to marry his previous mistress? So far as he knew his lawful wife might survive him for many years. It seems to me that this Bill will only tend to belittle the status of the lawful issue by placing bastards almost upon an equal footing with legitimate children. I beg to move.
Page 1, line 17, at end insert the said new subsection.—(The Earl of Malmesbury.)
§ LORD PHILLIMORE
My Lords, I had an Amendment on the Paper in somewhat broader language, for the Committee stage, but unfortunately I had to be absent on public business, and was unable to be here when this Bill went through Committee. I now desire to support the somewhat restricted Amendment of the noble Earl. This matter, though probably not one of common occurrence, has given rise to an enormous amount of consideration and discussion among learned men. I am free to confess that my first impression was wrong, and that according to the more prevailing opinion of canon law and of jurists on the Continent the provision as it stands in the Bill would be right, but those writers are very 737 much divided between themselves as to the effect of it. If a child is to be legitimated in this way, is he to take precedence of the children born in lawful wedlock—he is older than they are—or is he to come after them ? A great jurist of the Low Countries said it was a very hard law but, in his opinion, the legitimised child ought to come in front of the children born in wedlock. This Bill, by subsection (3) of Clause 3, provides the other way. In a case which was discussed in Scotland the learned Judges did not come to any decided conclusion—it was not necessary for the purposes of the case—as to which was the true rule.
Let me take it either way. Could there be anything more monstrous than that the children of a legitimate marriage should find in after years that all the rights of the eldest child were prejudiced because their father married late in life a former mistress and put another child in front of him? I do not understand that the Bill intends to do this—see Clause 3, subsection (3). Then look at the contrary conclusion. The contrary conclusion makes the elder child younger than the younger. It is artificial, and, like all artificial proposals, is not likely in the end to stand. That is an objection, taking this matter from the point of view of seniority. Let me take it from the point of view of equality. There may be but one child of the marriage, but he expects and believes that he will, subject to his father's good pleasure, inherit his father's goods. He knows that under settlement he must inherit a great portion of his father's goods. Suddenly he finds that his father has married a former mistress who claims to have had two or three children by him so that his share of the whole will be broken down to a third or fourth.
This question was discussed many years ago, in 1840, in the Courts of Scotland. There are fifty pages of judgments by learned Judges in the book which I have in my hand, and every argument for and against can be found there. It is true that by a majority of seven to six in this particular case the Scottish Court took the view which the noble Lord is urging on your Lordships to-day. The minority was a remarkable one. It contained the two heads of the Scottish Courts, the Lord President and the Lord Justice Clerk, and several of the Judges were 738 anxious to state that the particular circumstances of the case possibly removed it from the general law. In this case it was a woman who married intermediately, and the claim was made to a cousin's inheritance on the father's side, and it was thought that it might make a difference if it was the father and not the mother who had married again. And there was another important point. There had been children of the marriage, but they had all died, and the legitimated illegitimate child was claiming the inheritance in the absence of all legitimate children. The point was made by some of the Judges that there were no children of the legitimate marriage to compete. I think we have gone sufficiently far when we take this Bill at the stage in which it would be if the noble Earl's Amendment was carried; that it is not desirable to give an opportunity to a capricious father to alter the status of his children by marriage, by contracting, late in life, a marriage with his former mistress.
§ LORD BUCKMASTER
My Lords, if it is true that your Lordships granted a Second Beading to this Bill during this Session, and in previous Parliaments, owing to a transitory fit of hysteria, then there is no doubt that it is desirable that you should revise your judgment, but this is the first time I have ever heard that there has ever been any misunderstanding or misgiving about the main principle which forms the structure of this measure. That principle is this—that an illegitimate child suffers wrong through no fault of its own and that, so far as possible, that wrong should be remedied. What are the wrongs that an illegitimate child suffers? The social disadvantage is one that may be impossible to remove by any Statute, but the real wrong that has been endured has been the exclusion from any share in the inheritance left by either of its parents, its inability either to take, or through intestacy to transmit, property of any kind. That being so it is now suggested that great difficulty will arise if you do not exclude from the operation of this Bill an illegitimate child born before one of its parents married another person.
I did not agree, as the most rev. Primate knows, with his Amendment, but 739 at least it had a definite principle behind it. What is the principle behind this? It is not suggested that this is going to disturb the happiness of married life, break up any of those conditions which every one is anxious in his own way to preserve. No. The idea, as I understand it, is that by omitting this Amendment you are going to place the legitimate offspring at a disadvantage as compared with the illegitimate. What are those disadvantages? They are two—the inheritance of estate and the transmission of title. It is expressly provided by the Bill that legitimation shall not affect the transmission of title, so that that can be entirely ignored. Now as to the transmission of property. The truth is that the noble and learned Lord's observations are directed to a state of affairs which will not exist when this Bill becomes law.
§ LORD BUCKMASTER
When this Bill becomes law the difference between inheriting real and personal estate will have vanished. There will no longer be any transmission to the eldest son ; they will all share equally. That is the main object of the Bill—that the illegitimate child shall share in the inheritance of his father. The noble and learned Lord says : How about settlement ? The Bill does not affect settlements and wills that are made before it comes into operation. Surely you may leave people who dispose of their property with the knowledge of this Bill to make such protection as they think right for the legitimate offspring of their marriage. The discussion of the learned people to whom the noble and learned Lord referred is a discussion in which I obviously could not take any part. I know nothing about it. But the reference he is making is to a state of things which will end on January 1, 1925, when the old division between the two forms of estate will go and real and personal property will descend as one. So much for that argument.
Now for what the noble Earl said. If the noble Earl had been at pains to read,
§ I think it is Clause 3 of the Bill, he never could have thought that there was any possibility of confusing the provisions owing to the fact that a woman lived with a variety of men, because all that is legitimated is the offspring of the people who marry, and if the woman pursues the devious and immoral course to which he refers and is subsequently married by one of her earlier paramours the irregularities will have no result so far as this Bill is concerned.
§ Now for the rest. Let me assume that a man has seduced a woman, and has left her with a child and gone away—it is not an uncommon case—has married while he was away, and then come back and found this girl with her child, and married her. I want to know why either a lapse of seven years or the fact that he had married in the interval, and either been divorced or lost his wife, should prevent him from doing that which I have repeated more than once an honest man would desire to do—namely, to do everything in his power to repair the wrong of which he has been guilty and to ensure, so far as possible, that the wrong should not be transmitted to innocent and unoffending offspring. I beg your Lordships, if you were sincere in accepting without qualification the principle of this Bill, not to agree to this Amendment, which is not based upon any such principle as that of the most rev. Primate, but is an attempt to whittle away in a number of cases the rights afforded by subsequent marriage which the children would otherwise enjoy.
The noble and learned Lord asked what is the principle of this Amendment. The principle, as I understand it, is the principle of monogamy. If this Amendment is not carried, you may, in certain cases, recognise for all practical purposes that a man has had a number of wives at the same time.
§ On question, Whether the proposed new subsection shall be here inserted ?
§ Their Lordships divided :—Contents, 31 : Not-Contents, 53.741
|Argyll, D.||Midleton, E.||FitzAlan of Derwent, V.|
|Morton, E.||Hood, V.|
|Bath, M.||Stanhope, E.|
|Banbury of Southam, L.|
|Malmesbury, E. [Teller.] Lord Buckmaster.||Falmouth, V.||Biddulph, L.|
|Carson, L.||Morris, L.||Shandon, L.|
|Cullen of Ashbourne, L.||Ormonde, L. (M. Ormonde.)||Sinclair, L.|
|Fairfax of Cameron, L.||Oxenfoord, L. (E. Stair.)||Sumner, L. [Teller.]|
|Foley, L.||Phillimore, L.||Treowen, L.|
|Hawke, L.||Raglan, L.||Wharton, L.|
|Lamington, L.||St. Levan, L.||Wigan, L. (E. Crawford.)|
|MacDonnell, L.||Saltoun, L.|
|Canterbury, L. Abp.||Bertie of Thame, V.||Erskine, L.|
|Chelmsford, V.||Gainford, L.|
|Hadaue, V. (L. Chancellor.)||Churchill, V.||Gorell, L. [Teller.]|
|Wimborne, V.||Kilmarnock, L. (E. Erroll.)|
|Curzon of Kedleston, M.||Bradford, L. lip.||Monteagle, L. (M. Sligo.)|
|Muir Mackenzie, L.|
|Beauchamp, E.||Aberconway, L.||Muskerry, L.|
|Bradford, E.||Arnold, L.||O'Hagan, L.|
|Buxton, E.||Atkinson, L.||Olivier, L.|
|Chiehester, E.||Balfour of Burleigh, L.||Ponsonby, L. (E. Besshorough.)|
|Dartmouth, E.||Buckmaster, L. [Teller.]|
|De La Warr, E.||Byron, L.||Ranfurly, L. (E. Manfully.)|
|Eldon, E.||Clwyd, L.||Shuttleworth, L.|
|Kimberley, E.||Danesfort, L.||South borough, L.|
|Liverpool, E.||Darling, L.||Southwark, L.|
|Lucan, E.||Desborough, L.||Stuart of Wortley, L.|
|Russell, E.||Desart, L. (E. Desart.)||Thomson, L.|
|Searbrough, E.||Dunedin, L.||Wargrave, L.|
|Strange, E. (Atholl D.)||Emmott, L.||Wavortree, L.|
Resolved in the negative, and Amendment disagreed to accordingly.