§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Legitimation by subsequent marriage of parents.
§ 1.—(1) Subject to the provisions of this section, where the parents of an illegitimate person marry or have married one another, whether before or after the commencement 744 of the 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, whichever last happens.
§ (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) In this Act the expression "legitimated person" means a person legitimated under this section.
§ LORD RAGLAN moved, after subsection (1), to insert the following new subsection:—"No person, whether living or dead, shall be deemed to have been legitimated by virtue of this Act until his birth has been re-registered as hereinafter provided." The noble Lord said: The Bill as it now stands provides for two operations, legitimation by Clause I and re-registration by Clause 2. These operations, apparently, have no connection whatever with one another. Legitimation has full legal effect whereas re-registration appears to have none. The less important operation which is re-registration requires evidence, while the more important operation, legitimation, apparently requires no evidence whatever. It is provided in Clause 2 (4) that the failure of the parents to furnish information in respect of any person legitimated by the Bill shall not affect the legitimation of that person, or affect the right of one parent or of any other person to apply for re-registration under this section. The effect of the two clauses as they stand seems to me to be that if a man marries a woman who has illegitimate children, those illegitimate children become his legitimated children, whether they are his children in fact or not. He may be able to prevent their re-registration, but he cannot prevent their legitimation. The object of this Amendment is to bring those two clauses into line and to put a legitimated person in the same position as the ordinary legitimate person, in that the latter is not recognised as being the son of his father unless he is registered as such. There is no reason why the same rule should not apply to a legitimated person. I beg to move.745
Page 1, line 14, at end insert the said new subsection.—(Lord Raglan.)
§ THE EARL OF MIDLETON
Before the Lord Chancellor replies, I should like to say a few words in support of this Amendment. We stand in considerable difficulty this afternoon in regard to this Bill, for the reason which I gave your Lordships on Tuesday last. Unfortunately, the Bill was taken out of the Paper for Tuesday only the night before, with the result that two noble Lords who took a most active part in the discussion of this measure last year—Lord Sumner and Lord Phillimore and who particularly desired to offer arguments on this point, are unable to be present to-day.
§ THE EARL OF MIDLETON
I say that he is unable to be present to-day. Lord Sumner was here yesterday, but he is indisposed and unable to be present this afternoon.
§ THE EARL OF MIDLETON
I have a letter from Lord Sumner regretting his inability to be present because he has been stopped by his doctor in the last few hours. I only mention that because the Lord Chancellor does not appear to accept what is the fact—namely, that we who fought the matter last year and obtained a large majority of your Lordships in favour of a clause on this point, are denied on this occasion the high legal support which we had then.
The Lord Chancellor, in introducing this measure, stated that he was most unwilling to allow the child to suffer if the parents, either from caprice or forgetfulness or for some other reason, should not register parentage within a certain time after marriage, and he said that the Bill would put the penalty on the parents. I think the Amendment as drafted would commend itself to those who took a decided line last year in opposition and had the support of your Lordships. The Bill as drawn in no respect carries out what was the intention of the House last year. It is perfectly easy to say that an illegitimate child has 746 the right to be legitimated by any subsequent marriage of the parents, with the one exception made by the Bill. My contention is that the legitimate heirs have a right to be protected also, and that society has a right to be protected.
If you leave if to the parents to decide whether they choose to register a child or not, you put all other persons in a difficulty. The parents may decide—after all, it is not a particularly honourable record which they wish to preserve—to have their marriage perfectly quietly in some place where they are not well known, and the facts may never be known to the legitimate heirs at all. What does the noble and learned Viscount say? He says: Let them bear the penalty. What is the penalty? The penalty is £10. It is possible if the registrar can discover these individuals, who may not remain in the place they were married for an hour after the ceremony, that he may pursue them and mulct them in the sum of £10. But these children may appear years afterwards and obtain thousands of pounds and, what is more, put the legitimate heir to the expense of hundreds or thousands of pounds in resisting their demand to be considered legitimate. Actually, the noble and learned Viscount's Bill goes on to say that if both parents neglect to do it one parent may do it. In other words, the woman may saddle her deceased husband with the parentage of a number of children with whom he had nothing whatever to do. That is really an outrage that cannot, I believe, be the intention of the Government.
I object also on another ground. It is a temptation to the woman. She probably has equal maternal love for all her children. If she has three children and only one of them has any claim, she has this temptation. Her husband, whom she regards as a wealthy man, is dead and her children will be sharing something which his intestacy will give them. Still more, there is a strong temptation to crime. There is no reason whatever why the wife, who is probably the last person who sees the husband, should not destroy the will in order to create an intestacy by which the progeny she is going to set up would be set up at the expense of the legitimate heirs. That is not at all an extreme view. I hope your Lordships will favourably consider the Amendment which has been 747 moved by Lord Raglan. Unless we are able to arrive at a successful conclusion on that Amendment I would ask you to give consideration to the subsequent Amendment, drawn up by a high legal authority, which deals with this question of intestacy.
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
No one regrets more than I do that my noble and learned friend Lord Stunner is not able to be here to-day, especially as I feel quite sure I could have convinced him that this Amendment was one that ought not to be supported. This Amendment raises a point which is also raised later on by a number of Amendments and upon which I have no doubt your Lordships will come to a decision on this Amendment. The point is this: Is legitimation under the Act to depend on birth and marriage, or is it to depend on registration? The policy of the Bill is this—and it is the rule of the civil law, the rule of the canon law and the rule in Scotland to-day—that if two unmarried persons have a child and afterwards marry that child is, by the marriage itself, legitimated. That is the old rule. The Church which pressed this rule of legitimation by subsequent marriage at the Council of Merton had its own explanation, that the marriage consecrated, it was said, the previous union. But that is the historical origin of the rule. About the nature of the rule there is no doubt whatever, and no difficulty I think has arisen in Scotland about it.
What my noble friends want to do is to say that the subsequent marriage of these two people shall not legitimate the child unless they think fit to register the child as their child; in other words, it makes legitimation dependent on the will of the natural parents of the child. Noble Lords will form their own conclusion, but I do not think that is fair. Two unmarried people may have had a child and may marry, and may want to conceal the fact, or they may dislike the child and make up their minds not to register its birth, or they may be careless people and not take the trouble to register its birth. If the Amendment passes, in any of those cases the child remains illegitimate, has not the benefit of the Bill, and suffers perhaps throughout its life. I do not think that is fair. I do not think it-ought to be in the option of the parents 748 of these children whether they will make them legitimate or not. Of course, if the House differs from me upon that, they will say so, but for my part I hold this a vital part of the Bill as it stands.
I think there is some misapprehension as to the effect of registration. The legitimacy of a child born in wedlock does not depend on registration. Even if there is no registration, that child is the legitimate child of its parents, and why should the case be different of these children with whom we are now dealing? Registration is imposed as a duty upon the parents, not for the purpose of legitimating their children, but for the purposes of health, of statistics, and to form some record which the child may use when it comes of age and desires to prove its birth. It is for that purpose that the duty of registration is imposed and not as a condition of legitimacy. Nor, indeed, is it evidence of legitimacy. It is here, I think, that the noble Earl behind me is so much mistaken. The mere fact of registration will not prove the legitimacy. False registration may take place in respect of illegitimate children as well as of children born in wedlock. False claims may be made, and are constantly made, by persons to be legitimate children of persons who are dead, and they have to get proof and their claims very often break down when put to the test of proof. So here a false claim of parentage before marriage may be made in the same way, but, if made, it has to be proved, and it is sometimes more difficult to prove that kind of claim than a claim to parentage as the child of persons who are actually married.
I venture to think the noble Lord, on reflection, will not press this Amendment. I have thought a great deal about this. I would like very much, if I could, to find some means of protecting children born in wedlock from claims by other persons having the benefit of this Bill. I have thought a great deal about it and I am just as keen as the noble Lord behind me, but I see no way of doing it so as to satisfy the points which he has made. This Bill is framed absolutely upon the law of Scotland, subject to some additions which are for the protection of persons interested, but all these difficulties which are imagined have not occurred in Scotland. This has been the law there for centuries and we have not had any 749 more trouble in Scotland in cases of this kind than we have had in England in cases of claims to legitimate birth. I come back to the point at which I started. I do not think it is fair to make legitimation in case of subsequent marriage, depend upon the good or ill will, or upon the caprice, of the parents of the child. I think that here, as in Scotland and as in all countries in which this law applies, the fact of subsequent marriage ought to be enough, by itself, to make the children legitimate under the Bill. I hope the House will hesitate long before they accept this Amendment.
§ LORD BUCKMASTER
Your Lordships passed the Second Heading of this Bill, if I remember rightly, without Division. Why? Because you were satisfied that the present law worked grave injustice upon illegitimate children whose parents subsequently married, and this Bill was passed with the prime object of removing that injustice. If this Amendment be accepted you will restore it in another form, because you then will make the legitimacy of the child dependent, not upon the conditions which by the Act of Parliament you have declared are the conditions that establish legitimacy, but by the act of people over whom the child who is to be legitimated can have no possible control. I know noble Lords ask why, if the parents will not take the trouble to register the child, should it have the benefit of the Bill. My answer is this. Why should the child be robbed of the benefit of the Bill because of the negligence or carelessness of people who will not discharge their duty towards the child?
That really is the fundamental question, and when the noble Earl who spoke before the noble and learned Viscount the Lord Chancellor, suggests a long dismal trail of wrong and crime that may result if this Amendment is rejected, I find myself quite unable to follow him. There are many inducements to-day for people to destroy wills, but it is the rarest thing in the world for that to be done, and the idea that a woman who has not taken the trouble to register her child as legitimate would destroy a will entitling other people to the property is, to my mind, something that is quite outside the ordinary bounds of human experience.
750 Those people who support this Amendment overlook the very important fact to which the Lord Chancellor referred, but which he did not, in my opinion, emphasise enough. It is this. One of the advantages that legitimation confers on a child is the right to inherit property or take it under a will. That is one of the main values of the Bill. If the child is registered he is able to prove his legitimation in the usual way, but not, as the Lord Chancellor pointed out, by the mere production of a certificate. That proves nothing. Your Lordships cannot prove birth by producing your certificates in a court of law. The certificate per se is not evidence of your birth. You have to prove that it is; the certificate of the person who produces it and identification is therefore required as well.
The legitimation of a child in the absence of registration can only be established in one way and that is by proving it to the Courts. The Courts are most jealous on the question of proofs. It is one of the most, difficult things in the world to establish, and you may be quite certain that the Courts would exercise a far more severe scrutiny on the claim of a child than would a registrar. A child that is not registered will suffer a disability; it will be; subject to a strict, rigid and severe proof. Surely that is enough. You want to take away with one hand benefits you give with another. I have always thought that if legislation is going to be passed for the purpose of remedying a wrong you should remedy it with both hands, and not give with one hand and take back with the other. That is the effect of the Amendment, and I sincerely hope your Lordships will not accept it.
§ LORD PARMOOR
I should like to say one word on this Amendment. I entirely confirm the opinion expressed by the Lord Chancellor. He stated quite clearly what the canon law is. Legitimation there depends on the subsequent marriage of the parents. The occasion he referred to happened, I think, at Northampton, and the opposition to the legitimation of children born before the parents were married was raised on that occasion by the temporal Peers and not by the spiritual Peers. It was on that occasion that the temporal Peers used the phrase Nolumus leges Angliæ mutari, because they were afraid that the title to their estates might be in perll. I think the 751 Lord Chancellor is wholly right. That is the whole principle underlying this Bill. The noble Earl and Lord Raglan have entirely exaggerated the meaning and intention of registration. I agree with the noble and learned Lord, Lord Buckmaster, that to consider a matter of this kind before a registrar, instead of having it proved if it is called in question and ascertained in the legal manner, would be a disadvantage so far as illegitimate children are concerned. I think you create a difficulty which is not just cither to the legitimate or illegitimate children. I entirely agree with the view of the Lord Chancellor.
§ LORD SHANDON
It is with great diffidence that I disagree in the slightest degree with the views which have been put forward by the Lord Chancellor and Lord Buckmaster. My reason for supporting the Amendment is a very simple one. It may be wrong; but I think it did commend itself to your Lordships on a former occasion. Notwithstanding the very high authority of the noble and learned Lords who have opposed the Amendment, I still retain my old opinion; and it is this.
I do not deny—it would be absurd to suggest the contrary—that the rule of canon law depended solely upon the fact of the marriage for the purpose of legitimating children. But at the time when these rules grew up society was in a very different and more primitive condition than it is now. People did not migrate from one district to another as freely as they do to-day. They generally lived, married, and died within the radius of a few miles around the town or village in which they were born. If illegitimate children were born then, in ninety-nine eases out of one hundred, in those days, there was no doubt as to the fact that the illegitimate children were the offspring of a man and woman living in that small community. There was no system of registration in those days. It was not needed for any purpose. It was not needed for the purpose of births, marriages, deaths, or legitimation.
In proposing to put in force a rule, which is a departure from the well established rule in England, we must remember this. It cannot be denied that legitimate children are deserving of such protection as the law can give them. 752 They should be protected against claims which will result in imposing people who may be strangers in blood upon them by means of false declarations. They are entitled to protection. I think the Lord Chancellor would, if he could find means, be most glad to incorporate it in the Bill. There are two conditions of things. There is one in which we wish to legitimate the offspring of these irregular associations when the parents marry. On the other hand, we must protect, so far as we can, the legitimate children. Where legitimation is allowed on the Continent in these circumstances it is necessary to have some record by the parents that these children are their children. I admit that it is very hard to find a solution, but if we cannot find any solution except that of registration, that, after all, is the method adopted in Continental countries, it is the method which certainly seems to me to be the best in modern conditions, changing populations and matters of that kind, and for that practical reason I shall certainly support Lord Raglan's Amendment.
§ LORD DARLING
There can be no doubt, I think, that the position taken up by the Lord Chancellor does explain the difference between the legitimation by marriage and the producing of certain consequences by registration of the birth of the child. There can be no doubt that it is marriage which legitimates the child, but, if I quite understood the Lord Chancellor, I am sorry that I cannot agree with him when he says that the registration of the child by the parents is not evidence of the legitimacy of the child.
§ THE LORD CHANCELLOR
May I interrupt my noble friend for one moment? I did not say that it was not evidence: I said that it was not proof. And it only becomes evidence, I think, after the death of the parents.
§ LORD DARLING
That is what I thought the Lord Chancellor must have meant, and if I did not catch his words exactly I apologise to him. I was going to say that it is evidence. It is not conclusive evidence, but, if there were a legitimacy case in the Courts, then the fact that the parent had registered the child as his or her legitimate child would be part of the evidence. It would not of itself prove the case, but what one fact in a case ever does prove it? You have 753 to give many facts in evidence in order to win a case, and you do not always win it then.
I do not know that I should trouble very much about this particular Amendment, because I think that a more important Amendment stands in the name of the noble Earl, Lord Midleton, lower down upon the Paper, an Amendment which has to do with the passing of property to a person who is born out of wedlock and is legitimated under this measure. As Lord Parmoor said of the, Barons, who apparently all spoke Latin, the reason why they were unwilling to change the laws of England was that they feared that if they changed them it might affect the holding of their properties and the devolution of their properties to their legitimate children. They were entitled to that view and it does not seem to me that it was an unworthy motive. It is a very worthy motive in a man that actuates him to make such provision, and the Barons of England, to my mind, were perfectly right to raise such a claim, because it would affect property which was theirs and which would devolve upon their successors.
I do not care so much about this Amendment as about the other Amendment which the noble Earl will move presently, and I do not know that I should have troubled your Lordships upon this Amendment if I had not been emboldened by the arguments of the noble and learned Lord opposite, Lord Shandon. We heard against the Amendment the Lord Chancellor and the noble and learned Lord who has been Lord Chancellor quite lately, and I do not know that I should have interfered or entered into combat with two such eminent legal authorities had not the noble Lord from Ireland risen. I then said to myself:Look here upon this picture, and on this.The counterfeit presentment of two—cases.What the noble Lord who was Lord Chancellor in Ireland said seemed to me of the greatest weight and should command our approval. He gave real reasons why this Amendment should not be rejected. I do not know how far the House will agree with him, but I think he has also greatly supported the case for the Amendment which the noble Earl, Lord Midleton, will move presently.
754 The noble Lord, Lord Buckmaster, contemplates with an enthusiasm which I can barely understand the putting of these illegitimate children into what seems to me to be a privileged position. There are people who have had a large number of bastards, and I can imagine his reading the history of Augustus the Strong, King of Poland, with delight, for that King had three hundred and fifty-four, according to Mr. Carlyle, whose authority is good enough for me. The noble Lord, Lord Buckmaster, said, as he has said before, on the Second Reading of this Bill: When we are giving things to the illegitimate child do not let us be niggardly; give with both hands. I do not mind his giving with both hands if he is giving what people ought to have, but what I do object to is his taking away the legitimate patrimony of a person who is entitled to it with one hand and giving it with the other to the person who was never intended by his own father and mother to have any of it. Consequently, I should support this Amendment, although, to my mind, it is not nearly so important as the next one which the noble Earl will move.
§ THE EARL OF MIDLETON
I hope your Lordships will pardon me if I rise for one moment only to answer two remarks which fell from the noble and learned Lord in front of me. He asked two questions which I think answered themselves. He asked why the case should be different as between the illegitimate child and the legitimate child. There are, perhaps, obvious reasons for that, but I ask him in return: Why should the illegitimate child fare better than a legitimate child? The noble and learned Lord puts it that the proof is the same in both cases. Can that be true in the case of a legitimate child? Nothing is easier to prove than the fact whether the parents have or have not been married, unless they have been married at some obscure place. But how on earth are the legitimate heirs many years afterwards to disprove the statement of the mother if she claims that these children were born of a certain parent? How are they to disprove the concubinage at that particular period? You are giving to the illegitimate heirs an advantage over those who are in a legitimate position.
755 One other point. The noble and learned Lord asked why legitimation should depend upon the will of the parent, and suggested that this was not fair. Why do these people marry at all? They marry surely in order to regularise the status of the mother and in order to legitimate the children. But when it comes to asking them to take the most ordinary step, and one which is forced upon the parents of legitimate children—namely, that of registering their children, which is conclusive evidence—the noble and learned Lord says that you are asking too much, and he asks why should legitimation depend upon the parents being unselfish enough to take that step. I do not know what course Lord Raglan will take, but I trust that this will not be treated simply as a legal question, but as a matter of common sense.
I understood the noble Viscount, the Lord Chancellor, to say that if parents failed to re-register a child that child would remain a bastard for the rest of his life. Surely that is not so, for subsection (4) of Clause 2 lays it down that re-registration can be applied for by any other person, and Clause 3 provides that a person claiming that he or his parents, or any remoter ancestor, was legitimated by virtue of this Act, may present a petition to the Courts for a declaration of legitimacy. Therefore I do not see how there can be any great hardship such as the Lord Chancellor suggests.
§ THE LORD CHANCELLOR
I am very unwilling to rise again, but really it is a pity that such arguments should not be answered. The noble Earl said I suggested
§ that it would be too great a hardship upon the parents to require them to register. I said nothing of the kind. We do ask them to register, and, so far as possible, compel them to do so. All I have said is that if they do not choose to register, then it is hard to put the disability upon the child. With regard to what Lord Raglan has said, I will ask him to think for a moment, and, if the parents do not choose to register, to see how difficult it is for the child, perhaps twenty years afterwards, to bring before the registrar evidence sufficient to induce him to register. We have required the registrar before registering to demand such evidence, and I do not see how a child whose parents have neglected to register will ever succeed by himself. I am very reluctant to insist upon the point, but I really think I must do so. If the noble Lord presses and carries his Amendment, then I shall have to consider what steps must be taken.
§ LORD BUCKMASTER
I think the noble Lord wholly misunderstands Clause 3 if he says that it gives an alternative relief. Clause 3 says this:—A person claiming that he or his parent or any remoter ancestor was legitimated by virtue of this Act may, whether domiciled in England or elsewhere and whether a natural-born British subject or not, present a petition under the Legitimacy Declaration Act, 1858.But if this Amendment is passed he will not be legitimated by virtue of this Act, and any petition under Clause 3 would not be of the least use to him.
§ On Question, Whether the new subsection shall be there inserted, Their Lordships divided:—Contents, 29; Not-Contents. 65.757
|Argyll, D.||Falkland, V.||Decies, L.|
|Wellington, D.||FitzAlan of Derwent, V.||Forester, L.|
|Hood, V.||Hindlip, L.|
|Bristol, M.||Newton, L.|
|Dufferin and Ava, M.||Avebury, L.||Oranmore and Browne, L.|
|Banbury of Southam, L. [Teller.]||Ormonde, L. (M. Ormonde.)|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Plunket, L.|
|Biddullph, L.||Raglan, L. [Teller.]|
|Haddington, E.||Carson, L.||Shandon, L.|
|Malmesbury, E.||Cochrane of Cults, L.||Stewart of Garlies, L. (E. Galloway.)|
|Midleton, E.||Cottesloe, L.|
|Darling, L.||Stuart of Wortley, L.|
|Cave. V. (L. Chancellor.)||Lansdowne, M.||Beauchamp, E.|
|Lincolnshire, M. (L. Great Chamberlain.)||Caithness, E.|
|Salisbury, M. (L. Privy Seal.)||Clarendon, E. [Teller]|
|Bath, M.||Queensbury, M.||Eldon, E.|
|Lovelace, E.||Balfour of Burleigh, L.||Monteagle, L. (M. Sligo.)|
|Onslow, E.||Bledisloe, L.||Muir Mackenzie, L.|
|Russell, E.||Buckmaster, L.||Olivier, L.|
|Sandwich, E.||Clwyd, L.||Oriel, L. (V. Massereene.)|
|Stanhope, E.||Cullen of Ashbourne, L.||Oxenfoord, L. (E. Stair.)|
|Danesfort, L.||Parmoor, L.|
|Allendale, V.||Desborough, L.||Plumer, L.|
|Bertie of Thame, V.||Dynevor, L.||Ponsonby, L. (E. Bessborough.)|
|Haldane, V.||Dormer, L.|
|Hutchinson, V. (E. Donoughmore.)||Dunmore, L. (E. Dunmore.)||St. Levan, L.|
|Elphinstone, L.||Sempill, L.|
|Peel, V.||Emmott, L.||Shuttleworth, L.|
|Younger of Leckie, V.||Gage, L. (V. Guge.) [Teller.]||Sinclair, L.|
|Glenarthur, L.||Somers, L.|
|Chelmsford, L. Bp.||Gorell, L.||Southwark, L.|
|Southwark, L. Bp.||Harris, L.||Strachie, L.|
|Hunsdon of Hunsdon, L.||Sudley, L. (E. Arran.)|
|Aberconway, L||Lambourne, L.||Templemore, L.|
|Arnold, L.||Merrivale, L.||Thomson, L.|
|Atkinson, L.||Mildmay of Flete, L.||Wyfold, L.|
On Question, Amendment agreed to.
§ LORD OLIVIER moved to add to subsection (2) the words: "and has later issue of that marriage." The noble Lord said: I rise with a sense of great personal disadvantage because I am moving an Amendment that practically seeks to upset, with one exception, the principle of a clause which has twice been accepted, by your Lordships' House, on the last occasion on the Motion of the Lord Chancellor and on the previous occasion on the Motion of the most rev. Primate, and I am a man who is much impressed by authority and both the noble and learned Viscount and the most rev. Primate are men for whose deep humanity I have the greatest respect and appreciation. If I now set myself against the view which they argued on those occasions, I can assure them that it is not because I do not recognise that the considerations which they put forward are in themselves very weighty and moving, but because it did not appear to me that they were relevant to the case which they were arguing.
§ What I am proposing to do with this Amendment is practically to say that (he subsequent marriage of two persons who have had a child while one of them was married to another person shall legitimate the offspring born of that union except where there has been subsequent issue of the actual marriage. What I have in mind is that if there has been a temporary breach of the marriage contract but that contract is definitely and distinctly renewed by subsequent off-spring it is certainly a very hard thing 758 to argue that you can have an alternate status of marriage existing between the parties. I fought the Bill in the form in which it was introduced last year by the noble and learned Lord, Lord Buck-master—that is to say, that the fact that the child was horn while one of its parents was married—an adulterous union—should not of itself prevent the legitimation of that child. That was argued against by the Lord Chancellor and also by the most rev. Primate and the Bishop of Southwark, and the Lord Chancellor used an argument which I think we may now trust is finally disposed of.
§ The noble and learned Viscount argued that it might conduce to an immoral union between a married man and the girl whom he desired to corrupt if he could say to her: "Oh! it will not matter whether we have a child or not because we will afterwards get married and legitimate that child." I think that, having regard? to a case in which the noble and learned Viscount sat for a considerable time not very long ago he will recognise that under the present conditions of society that is hardly a cogent argument. People who are prepared to go so cold-bloodedly into the question of whether they would have children or not are quite prepared to avoid having children if they think it would be inconvenient.
§ LORD OLIVIER
I beg the noble and learned Viscount's pardon. But he will see the intention of my argument which is this: that I cannot conceive of any 759 human beings who are drifting into adultery dealing with the question of their union on these terms, and if they do I think it is very much better that they should enter into a union in good faith and with the intention of accepting, all the consequences of any kind of conjugal union. But the argument that it would conduce to immorality was frankly abandoned later by the Bishop of Southwark and I think it was also abandoned by the most rev. Primate, who said he did not desire to argue the clause on those grounds. Consequently I do hope that we have heard the last of that kind of argument against the clauses of this Bill.
But it was further argued that the fact that a child had been born illegitimately, of an adulterous union, would cause pressure to be put on the wife or the husband who had remained faithful to induce them to divorce their partner so that that child should be legitimated, and that that would cause hardship. That is an argument which I think is irrelevant in ordinary circumstances. With regard to matrimonial conditions, we have two schools of thought. One of them is the school which has a very simple view indeed, the view of the Catholic Christian Church that any kind of commerce between the sexes otherwise than under the sanction of marriage is a deadly sin, and concurrently with that, that a conjugal union once contracted and sanctioned is firm and cannot in any circumstances be dissolved. But the school represented by the noble and learned Lord, Lord Buckmaster and by those who wish to reform the Divorce Laws, desire that that the institution of marriage should merely record the spiritual meaning and intention of marriage as conceived by the Christian ideal.
I am instancing the latest reform of the Marriage Law which gave the wife of a husband who had been unfaithful the right to divorce him on the ground of infidelity alone, which had been given only to the husband before. It is the recognised right to divorce. But that addition to the recognised right of divorce which gave, the wife the right to divorce her husband, was really a concession to the strong feeling of women that adultery unfaithfulness, is in itself an act of dissolution of marriage, that the marriage is 760 dissolved and broken when one of the partners has become unfaithful, that it was the same with regard to one partner as with the other, and that the law should recognise that the marriage had been broken and formally dissolved. If, therefore, the marriage has been broken by infidelity and one partner has found another partner then, if the guilty partner remains contumacious and refuses to return to co-habitation, to conjugal union, it is only reasonable that after he or she has been divorced or the other partner has died, the adulterous couple should be able to legitimate their children, because they had entered into a real bona fide conjugal union.
But I feel the force of this consideration which underlies my Amendment—that if, after a marriage has been broken, it has been repaired and the erring partner has returned to his or her original consort and has resumed cohabitation and conjugal union and there has been a reconstitution of the family and further issue, then it would be an unjustifiable and a very difficult thing, I should say, to contend that the previous offspring could be regarded as legitimate, because that would be tantamount to arguing that a man could have two wives, or alternate wives at different times. Therefore, my Amendment practically amounts to this—that where there has been obviously no intention of marriage, but an intention and desire to re-establish the broken union and to resuscitate it, it would not be fair, possibly, and there is a difficulty in agreeing that the child of an adulterous union should be legitimated. But in any other case I really cannot see that there is anything to be said for the clause as it stands, because the argument used by the most rev. Primate and the noble and learned Viscount that it was a hardship to the virtuous partner to be placed in a position where pressure may be used to induce him or her to divorce the erring partner, is not really, as it seems to me, relevant to the argument upon which this Bill is founded.
The principle upon which this Bill is founded is that two persons who have had an illegitimate child and who desire to marry and legitimate that child shall have the right to do so, and that the child shall have the right to be so legitimated. Those considerations can stand by themselves. They are good and 761 are admitted in the principle of this Bill, The exception taken to them is that because one of two persons whose union has been temporarily broken is liable to be put under somewhat distressing pressure to allow the union to be declared legally broken, therefore out of consideration for the rights of other persons the rights of the child must be set aside. It is illegal, no doubt, that the partner who has remained faithful shall be exposed to that distressing dilemma: but it is a dilemma which is to be got over purely by arguments directed to their own feelings and the feelings of the erring partner. It is not a position which can be properly affected by referring to the outside considerations of this question of legitimation.
Although the case put by the most rev. Primate and the noble Lord is, no doubt, a distressing one, it is not one which is really relevant to the principle of the Bill and, consequently, as regards the general clause, I am against it, but as regards the particular cases I have given, where the union has been resumed and evidence has been given by the resumption of that union that there has been condonation and that the marriage union has not been broken and a new marriage union formed—in that case this exception should be made. I beg to move.
Page 1, line 17, at end insert ("and has Inter issue of that marriage").—(Lord Olivier.)
§ THE LORD CHANCELLOR
I am afraid I could not possibly advise the House to accept this Amendment, It is true, as the noble Lord has said, that the Amendment runs counter to a decision which your Lordships have twice taken—namely, to confine this Rill to the issue of persons who were unmarried and not to extend it to the issue of an adulterous union. I hope I shall not be asked to argue that general point again to-day, but my own feeling is just the same as it always was and I do not think the principle I have laid down is directly attacked by any of the Amendments. But even assuming your Lordships to be doubtful about and, indeed, to be opposed to the subsection, I do not think your Lordships will accept this Amendment. Its operation is so capricious that I cannot think the House will agree to it.
762 Just let me put two simple cases to which this Amendment would apply. A married woman has a child by her paramour and afterwards survives her husband and marries the paramour. This Amendment would have the effect that, if after the birth of the child of herself and her paramour she continued to live with her paramour, that child would on her subsequent marriage be legitimated: but if, after the birth of this adulterine issue, she goes back to her husband and has children by him, then the child of herself and her paramour is not legitimate—a result so capricious and absurd that I cannot really think that the noble Lord fully intends it.
Let me put the other case. A married man has two establishments. He has a wife and a mistress. He has children by both, possibly born about the same time. He afterwards survives his wife and marries his mistress. Under this Amendment the status of the child of the mistress would depend upon whether it was born before or after the child of the wife. If it happened that the child of the mistress was born first and the child of the wife later, then the child of the mistress would not come under the Act. If it happened that the child of the wife was born first and that of the mistress afterwards, then that later child would come under the Act. I do not think the House can possibly contemplate such a result, I hope, whatever you may think on the general question, your Lordships will not accept this particular Amendment.
§ LORD BUCKMASTER
As your Lordships know, I have to the best of my power opposed the principle that is found in the subsection, but your Lordships have unequivocally decided against the view which I still strongly hold. I thoroughly appreciate the support of those views that the noble Lord, Lord Olivier, has given this afternoon, but I will ask him to consider whether it is worth while asking the House once more to repeat the decision which they have given without any hesitation and which I have been compelled more than once, with great reluctance, to accept. Unless there is some chance of reversing the result of the past, I see no reason for submitting this matter to a decision again.
§ LORD OLIVIER
I should like to say with regard to what fell from the noble 763 and learned Viscount, as to the case of the woman who had a child and who reverted to her husband and had further children, that that is not in my opinion, an anomaly. In that case the woman has gone back. She has said: "I repent of my relapse. I did not intend, and I do not intend, to contract a marriage or to found a family with my paramour. I go back to my husband and I recognise that my only legitimate children are those of my husband and myself, of our marriage." I do not regard it as a paradox or an anomaly. I regard it as a precise instance of truth. I was asking that where a marriage has not actually been permitted to be broken, where there has been repentance and where the marriage state has been resumed, there you could not ask that the legitimation of the outside family should take place. I accept, however, the advice of the noble and learned Lord, Lord Buckmaster, and in the circumstances ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ LORD RAGLAN moved to leave out sub-Section (3). The noble Lord said: I move the omission of this subsection because it-does not appear to have any effect. If it has any effect I should like to know what it is.
Page 1, lines 18 to 21, leave out subsection (3).—(Lord Raglan.)
§ THE LORD CHANCELLOR
This subsection has an effect. The first clause of the Bill deals with status and status only, and not with property. Property is dealt with by the later clauses to which we are coming. The only effect of the subsection is to confine Clause I to status and not to make it extend to other matters.
§ Amendment, by leave, withdrawn.
§ Clause I agreed to.
§ Clause 2:
§ Re-registration of birth of legitimated persons.
§ (2) It shall be the duty of the parents of a legitimated person, or, if one of the parents is dead, of the surviving parent, within the time hereinafter specified, to furnish to the Registrar-General information with a view to obtaining the re-registration 764 of the birth of that person: that is to say:—
- (a) If the marriage took place before the commencement of this Act. within two months of such commencement;
- (b) If the marriage takes place after the commencement of this Act, within one month after the date of the marriage.
§ (4) The failure of the parents or either of them to furnish information as required by this section in respect of any person legitimated by virtue of this Act shall not affect the legitimation of that person, or affect the light of one parent or of any other person to apply for re-registration under this section.
§ THE LORD CHANCELLOR moved, in paragraph (a) of subsection (2), to leave out "two" and insert "six." The noble and learned Viscount said: It was suggested during the Second Reading of the Bill that the period of two months, which was allowed by subsection (2) (a) of Clause 2 for registration after the commencement of this Act, was too short and that people in that short period might not become aware of their rights. Therefore I propose to substitute six months for two months. As regards the next Amendment, I am not sure that I ought to move it unless your Lordships think right that I should do so. People who marry after the Act comes into operation ought perhaps to register their child as soon as possible after the marriage. However, I will leave that until we come to the Amendment dealing with it. I move the first Amendment.
Page 2, line 11, leave out ("two") and insert ("six").—(The Lord Chancellor.)
§ LORD BUCKMASTER
May I suggest to the noble and learned Viscount that he should move the next Amendment also? After all, three months is not a long time.
§ THE LORD CHANCELLOR moved, on paragraph (b) of subsection (2), to leave out "one" and insert "three." The noble and learned Viscount said: I did not intend to move this had I not been pressed to do so.
Page 2, line 14, leave out ("one") and insert ("three").—(The Lord Chancellor.)
§ THE EARL OF MIDLETON moved to omit from subsection (4) "or affecting the right of one parent or of any other person to apply for re-registration under this section." The noble Earl said: This Amendment raises the question which we discussed just now; therefore I do not propose to trouble your Lordships with more than a few words upon it. The object of the registration is to furnish some proof. If the registration is by both parents undoubtedly that object is attained, but if the registration is by one parent alone, the mother, there is undoubtedly a danger that from maternal solicitude there may be false registration. Registration will form a considerable part of the evidence that will have to be given to a Court subsequently, and for that reason I hope the learned Lord Chancellor will see his way to meet to some extent the very genuine fears that are felt upon this point. I cannot see why you should have three procedures. You have one procedure of registration afforded by this Bill. If that is not adopted you have the right of a child, although unregistered, to prove its legitimacy—an exceedingly difficult thing. Why have another procedure? I beg to move.
Page 2, line 32, leave out from ("person") to the end of subsection (4).—(The Earl of Midleton.)
§ THE LORD CHANCELLOR
I feel it very difficult to deal with this Amendment otherwise than I dealt with that which the House has just rejected. If failure to register does not affect legitimation—and we have passed those words—why should it affect the right to apply for registration? Registration is not an essential of legitimation. It is for the convenience of everybody that the facts should be set down in proper order, and I really do not see why registration should not be obtained even at a late period if it has not been made in time. I can only assure the noble Earl that I have considered, and I will consider again, what he has said to us and see whether I can suggest anything which would in any way meet his views, but I cannot accept his Amendment.
§ Amendment, by leave, withdrawn.
§ THE EARL OF MIDLETON moved to add to subsection (4) "but such legiti- 766 mation shall not entitle any such person to share in any intestate estate as one of the next-of-kin" The noble Earl said: This raises the point touched upon by the noble Lords, Lord Shandon and Lord Darling, who expressed their strong opinion upon it. Your Lordships, therefore, will forgive me if I say only very briefly what seems to me to be the danger. Failing registration, and failing any action on the part of the parents, to lay down what children may be legitimated seems to me to be absolutely wrong according to common sense and extremely dangerous in law. To lay down that, after a long period of years, those who legitimately have regarded themselves as their father's heirs should have the task of disproving a set of assertions which are supported by the word of one of the chief actors and in reference to matters into which they could not possibly search, is imposing an impossible task. It seems to me so inequitable that I urge your Lordships to reconsider the decision you reached a few moments ago and in the more limited scope of this Amendment give me your support.
Line 34, at end insert the said words.—(The. Earl of Midleton.)
§ LORD BUCKMASTER
I find it a little difficult to understand the meaning of this Amendment after what has taken place. The object of legitimation is not merely to give the legitimated person a civil status, but to enable him to share in a disposition by will with those children who are legitimate. The noble Earl has, for some reason or another, selected the question of intestacy, and his Amendment proposes that subsequent legitimation "shall not entitle any such person to share in any intestate estate as one of the next-of-kin." Why he has done that he has not told us. Why does he not say that he shall not share under any disposition by will? Why has he limited it to the next-of-kin? It seems to me an Amendment that has no logical foundation at: all and is in direct conflict with the logical consequences of the provision your Lordships have just passed.
§ LORD DARLING
The noble and learned Lord has done less than justice to the argument of the noble Earl. It seems to the noble Earl that intestacy might well be selected, and is selected by 767 him for this reason. Ex hypothesi you have hero a person who is a bastard. His parents marry, but they do not take the trouble of informing the world by registering the legitimation. They do not take any means to inform the world that he really is their legitimate offspring. His father or his mother, in making a will, may put him in and leave him whatever they like, but they do not take the trouble to do that. What is the view of any sensible person with regard to it? Is it not that they do not desire to acknowledge him by even putting his name down in the registry office and that they do not desire him to share in the property? If he does share—and this is the real point—it will diminish the portions of the other children, and will certainly diminish the share of the next-of-kin. The noble Earl says that if the child's own parents are so indifferent to him as all this, why should the noble and learned Lord opposite adopt him. I think this Amendment is deserving of support, and if the noble Earl goes to a Division I shall certainly support him.
§ VISCOUNT HALDANE
I am a little astonished at the argument to which we have just listened. This is a Bill which proposes to enact a principle, a principle which is in force in nearly every civilised country in Europe except our own—the principle of legitimation by subsequent marriage. The House assented to that principle on the Second Reading, and it has just assented to it on several clauses which have been discussed. Here we are dealing, not with the principle at all but with a subsection which refers to legislation only, and we have already decided that the status of the child is not determined by registration but by the subsequent marriage. Here is an Amendment which suddenly, in the middle of a clause dealing with registration, puts in a provision that the legitimated child, because of the subsequent marriage, is not to be entitled to share in any intestate estate as one of the next-of-kin. Whether you share as the next-of-kin depends on whether your parents have been married or whether you are legitimated in some form. The Bill proposes to make people legitimate, and thereupon they get the ordinary title that belongs to their status as part of the next-of-kin. Why should the noble Earl say that if parents do not take trouble the children are to suffer? We are not concerned with the 768 parents but with the children, and the whole purpose of the Bill is to get some justice for the children. This is a wrong Amendment and I am wholly unable to support it.
§ THE LORD CHANCELLOR
I do not want to take any question of form, but to begin with, this Amendment is plainly in the wrong place. The clause which deals with succession to intestacy is Clause 4, and what the noble Earl should do is to vote against that clause. But I really do not understand the meaning of the Amendment. It says "such legitimation shall not entitle any such person to share in any intestate estate." What is the meaning of "such legitimation"? Does it mean any legitimation under this Bill? I do not know. Does it mean only the legitimation of a person whose parents have not furnished information as required by the Bill? One would like to know what it means before voting upon it. I do not understand why it has been confined to next-of-kin.
But I do not want to dwell on these formal difficulties. We are really arguing the old point. If your Lordships are agreed that subsequent marriage shall result in legitimation I do not see how you can reject Clause 4, which says that a legitimated person shall, as respects intestacies occurring after the 31st day of December, 1925—as it will be—be entitled to take any interest in real or personal property in like manner as if he had been born legitimate. If a parent wants to cut a child out he can do so under his will. If he does not and makes a will leaving his children to inherit it is not unnatural to assume that he would like his inheritance to go to all his children, to those who were born in wedlock and also to those who have become legitimated by marriage.
§ THE EARL OF MIDLETON
I am sorry to have to put your Lordships to the trouble of a Division. This Amendment was drawn by my noble and learned friend Lord Sumner to meet those specific cases where parents did not take the trouble to acknowledge a child and make a will. For that reason I must ask your Lordships to divide.
§ On Question, Whether the said words shall be there inserted?
§ Their Lordships divided: Contents, 19; Not-Contents, 65.769
|Canterbury, L. Abp.||Falkland, V.||Carson, L.|
|FitzAlan of Derwent, V.||Cottesloe, L.|
|Argyll, D.||Hood, V.||Darling, L.|
|Bath, M.||Avebury, L.||Harris, L.|
|Banbury of Southam, L. [Teller.]||Raglan, L.|
|Malmesbury, E.||Shandon, L.|
|Midleton, E. [Teller.]||Biddulph, L.||Stewart of Garlies, L (E Galloway.)|
|Cave, V. (L. Chancellor.)||Haldane, V.||Hemphill, L.|
|Hutchinson, V. (E. Donoughmore.)||Hunsdon of Hunsdon, L.|
|Salisbury, M. (L. Privy Seal.)||Mildmay of Flete, L.|
|Peel, V.||Monk Bretton, L.|
|Wellington, D.||Younger of Leckie, V.||Monteagle, L. (M. Sligo)|
|Muir Mackenzie, L.|
|Lansdowne, M.||Southwark, L. Bp.||Northbourne, L.|
|Lincolnshire, M. (L. Great Chamberlain.)||Olivier, L.|
|Aberconway, L.||Oriel, L. (V. Massereene.)|
|Queensbury, M.||Arnold, L.||Oxenfoord, L. (E. Stair.)|
|Atkinson, L.||Parmoor, L.|
|Beauchamp, E.||Balfour of Burleigh, L.||Plumer, L.|
|Bradford, E.||Bledisloe, L.||Ponsonby, L. (E. Bessborough.)|
|Caithness, E.||Buckmaster, L.|
|Clarendon, E. [Teller.]||Clwyd, L.||St. Levan, L.|
|Eldon, E.||Cullen of Ashbourne, L.||Sempill, L.|
|Lovelace, E.||Danesfort, L.||Shuttleworth, L.|
|Lucan, E. [Teller.]||Desborough, L.||Sinclair, L.|
|Onslow, E.||Dynevor, L.||Somers, L.|
|Sandwich, E.||Dunmore, L. (E. Dunmore.)||Southwark, L.|
|Stanhope, E.||Elphinstone, L.||Stanmore, L.|
|Emmott, L.||Strachie, L.|
|Allendale, V.||Gage, L. (V. Gage.)||Templemore, L.|
|Bertie of Thame, V.||Glenarthur, L.||Terrington, L.|
|Burnham, V.||Gorell, L.||Thomson, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 2, as amended, agreed to.
§ Clause 3:
§ Declarations of legitimacy of legitimated persons.
§ 3. A person claiming that he or his parent or any remoter ancestor was legitimated by virtue of this Act may, whether domiciled in England or elsewhere and whether a natural-born British subject or not, present a petition under the Legitimacy Declaration Act, 1858, and that Act, subject to such necessary modifications as may be prescribed by rules of court, shall apply accordingly.
§ LORD RAGLAN moved to leave out "or any remoter ancestor." The noble Lord said: The chief object of this Bill is to remove the stigma on illegitimate persons. It is ridiculous to suggest that a person suffers from any stigma because his grandparents were illegitimate. And the only thing is that in certain cases people might be able to take property not claimed by their parents or grandparents. Now the words "or any remoter ancestor" in Clause 3 are no doubt put in to balance 770 the words "or more remote issue" in Clause 6, but if your Lordships look at the two clauses you will see that they do not correspond. Clause 6 is of general application, whereas Clause 3 only applies to persons whose identity has hitherto been unrecognised. I thank persons whose identity has not been recognised for three generations had better be left in obscurity. I beg to move.
Page 3, lines 1 and 2, leave out ("or any remoter ancestor").—(Lord Raglan.)
§ THE LORD CHANCELLOR
Really the noble Lord does not fully understand the meaning of this clause. It deals with this case: Supposing a person legitimated under this Act has a legitimate grandchild, which may happen next year or may be the case when the Act passes, and supposing that legitimated person dies, the grandchild would in the ordinary course succeed to the property, and this gives the right to the grandchild to assert the legitimacy of his grandparent This case may arise the day after the Act takes effect and this clause only deals with 771 applications to the Courts. Why should not any person who claims that his grandfather or grandmother had become legitimate under this Act have the right to apply to the Court for a declaration to that effect? I see no reason whatever for confining it to the case where the status of the father only is in issue. I do not see why it should not apply to every generation.
The noble Viscount himself said that it is almost impossible for a child to prove the legitimacy of a person who died many years ago, and I think it applies to this case.
§ On Question, Amendment negatived.
§ Clause 3 agreed to.
§ Clause 4:
§ 4.—(1) A legitimated person shall, as respects intestacies occurring after the thirty-first day of December, nineteen hundred and twenty-four, be entitled to take any interest in real or personal property in like manner as if he had been born legitimate.
§ (2) This section does not affect the descent of an estate tail or other entailed interest in real or personal property.
§ THE LORD CHANCELLOR
I beg to move the substitution of "nineteen hundred and twenty-five" for "nineteen hundred and twenty-four."
Page 3, line 11. leave out ("twenty-four") and insert ("twenty-five").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ LORD RAGLAN moved, at the end of the clause, to insert "whether created before or after the commencement of this Act." The noble Lord said: This Amendment is only intended to make the clause more clear.
Page 3, line 16, at end insert ("whether created before or after the commencement of this Act").—(Lord Raglan.)
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5:
§ Future wills, settlements and other dispositions.
§ (5) This section shall take effect subject to any contrary intention expressed in the disposition.772
§ LORD RAGLAN moved, in subsection (5), after "expressed," to insert "or implied." The noble Lord said: It seems to me that in some cases the clause as it now stands might lead to the frustration of the clearly implied wish of the testator, and I therefore move.
Page 4, line 14, after ("expressed") insert ("or implied")—(Lord Raglan.)
§ THE LORD CHANCELLOR
I am rather afraid of inserting the words "or implied," and I prefer the clause as it stands, but I will consider between now and the Report Stage whether I can suggest some recognised form of words which will satisfy the noble Lord.
§ VISCOUNT HALDANE
I hope the Lord Chancellor will consider very carefully. We have trouble enough, sitting in this House judicially, in deciding the meaning of the word "expressed," and to put in the words "or implied" is to open up a sea of trouble for us.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Clauses 6 and 7 agreed to.
§ Clause 8:
§ 8.—(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.
§ LORD GORELL moved to leave out subsection (1). The noble Lord said: The purpose of my Amendment on the Paper has at any rate the merit of being perfectly simple. The subsection which I desire to strike out is curious in several respects. It is perfectly straightforward. It excludes from the operation of this Act the holding of any title or dignity of honour. The purpose of my Amendment is to leave out that subsection and to give more practical effect to what I understand to be the principle of the Bill—namely, that where parents have married subsequently to the birth of the child that child is legitimated. The definition of legitimation has been often given, and perhaps never more clearly than by the noble and learned Viscount on the Woolsack, in reply to the first 773 Amendment on the Paper to-night. This subsection cuts right across the principle of the Bill. It removes for certain purposes those who, for the rest of the purposes, are declared to be legitimate. In fact, it is totally contrary to the spirit of the Bill as set forth in Clause 4 (1), where, again, the words of the noble and learned Viscount, in reply to Lord Midleton's last Amendment apply absolutely, word for word, in opposition to the principle of this subsection.
§ I ought to say that a year ago I did make the same Motion to omit this subsection, but I cannot think that because of that I am asking your Lordships to traverse again old ground. Last year there was practically no discussion. The noble and learned Viscount, the Lord Chancellor, merely stated that the omission of this subsection would give rise to difficulty. He did not go on to explain how the difficulty would come about. The Bill at that time was not sponsored by the Government. It was a Private Bill sponsored by the noble and learned Lord, Lord Buckmaster, who, when I moved the omission of the subsection, said he was wholly in favour of the principle, but his attitude was one of benevolent neutrality, because, knowing the pitfalls that beset Private Members' Bills, he was not willing to do anything to make the passage of his Bill more difficult. The position is now different. This Bill is sponsored by the Government. There is scarcely a doubt chat it will pass into law, and there is no need to fear that an Amendment will make it more difficult to carry the Bill. I therefore venture seriously to ask your Lordships, on what is probably the last occasion, to consider the effect of this subsection.
§ There is one further difference. During the time which has intervened between last year and now I have spoken to a number of your Lordships, and others, as to the effect of this subsection, and with hardly an exception I have found that no one is willing to defend this subsection. Some have only said that they felt very uneasy about its inclusion while others have gone so far as to term it absolutely ridiculous. I would ask you to consider what exactly the effect of the inclusion of this subsection is. It puts a distinction between those who are titled and those who are not titled, and it would 774 have this effect. Supposing there were two people, each of whom had a son and then married the woman by whom he had that son. One of them in later years prospers and becomes a knight; he dies, and his son is legitimated for all purposes. The other is even more successful, as these things go, and becomes a baronet. Then he dies, aid his son is in a very curious position. By many of the clauses of this Bill he is legitimated. By this subsection he is not legitimated for the purpose of succeeding his father; he is a hybrid, neither legitimate nor illegitimate.
§ We have heard on other Amendments this afternoon the noble and learned Viscount, the Lord Chancellor, suggesting that legitimation should not depend upon the will of the father, but here it is a case where it would depend on whether the father had, subsequently, say, to the birth of his child, become a baronet or a member of your Lordships' House. That seems to me to be totally contrary to the principle on which this Bill is founded. On other matters we have been told that difficulties of proof arise, but here there could be no difficulty of proof. Before the legitimated son could in any way succeed his father he would have to bring full proof of the marriage of his parents subsequent to his birth.
§ In fact, only ore answer has ever been given as to the reason why this subsection should have been inserted—namely, that otherwise there would be difficulty over the matter of patents. The words in the patents, as your Lordships are aware, are, "issue lawfully begotten, or to be begotten." But the whole purpose of this Bill is to assume that those who are the children of parents subsequently married are lawfully begotten. It is a legal fiction. And the law already overrides a difficulty of the same kind. For example, supposing that a baronet or a member of your Lordships' House were to have a son one day after marriage. That son would be declared to be lawfully begotten. The whole world would know that he had not been, that he must have been begotten seven or eight months at least before the marriage of his parents, but the legal fiction would hold that he was lawfully begotten. Why should a distinction over this matter be introduced between one who, say, is begotten seven or eight months before the 775 marriage, and one who is begotten ten months or a year before? There can be no question as to any interference with the true descent of the blood, because, under Clause I (2), it is clear that the legitimated son would be of identically the same blood as the second son born after the marriage of the parents.
§ I do not wish to press this matter unduly, but I have made inquiries, and I gather that no real difficulty would be created by the omission of the subsection, and that even if there were, even if ambiguity might arise if this subsection were struck out, surely it is not consonant with the dignity of Parliament to say that we must leave this subsection in because if we take it out there would be difficulty. It would be perfectly easy to devise words which could be introduced on the Report stage which would meet the difficulties, and I for one would, of course, raise no possible objection to any form of words to meet any ambiguity that might be considered by legal minds to have arisen on the excision of this subsection, provided that those words were consonant with the whole principle of the Bill, and that they make this Bill apply to all, whether they be members of your Lordships' House, or baronets, or not.
§ I cannot conceive how it can be a defensible position to pass a Bill applying in its entirety to knights, squires, and artisans, but with a definite excision for this purpose of members of your Lordships' House or of baronets. It is far from my wish to press any personal feeling of mine on your Lordships, and unless I receive support I shall not go further than I have done in calling your Lordships' attention to it, but I have been given to understand that a number of your Lordships are uneasy on this matter. The subsection is clearly based on class distinction and on nothing else, and I hope there may be others who will rise to protest against its inclusion.
Page 4, lines 39 to 42, leave out subsection (1).—(Lord Gorell.)
§ VISCOUNT HALDANE
Before the noble and learned Viscount opposite answers, I hope he will give close consideration to the question which arises here. The Amendment of my noble friend behind me is confined to subsection (1). Subsection (1) does no less than this: it drives a hole into the 776 principle of the Bill. If the Bill passes with this subsection in it then it will be said all over the country: "Oh, you are legitimated if your parents married subsequent to your birth, excepting in the House of Lords." I do not think that a desirable state of things to create. We do not wish to claim in this House exceptional privileges and exceptional status.
Why should not the descent of a dignity stand on the same footing as the descent of an estate? There is no difference in law between them. A dignity is an incorporeal hereditament, and descends in the same way. It seems to me that my noble friend is right in saying that you cannot present what subsection (1) proposes in any other light than in that of a hole driven into the principle of the Bill. It does not necessarily follow that the noble and learned Viscount would wish to answer upon this point at once. He may wash to see that guarding words are put in so as to save the disturbance of anything in a writ of title. I express the hope, therefore, that the Lord Chancellor will give careful consideration to this. It may put your Lordships' House in an invidious position in the country.
LORD ORANMORE AND BROWNE
I have listened to what has been said by the two noble Lords, suggesting that this makes a distinction between members of your Lordships' House and others, but, as I read the Bill, there is another exception. Clause 4 (2) applies to property. The whole clause runs as follows:—(1) A legitimated person shall, as respects intestacies occurring after the thirty-first day of December, nineteen hundred and twenty-four, be entitled to take any interest in real or personal property in like manner as if he had been born legitimate.(2) This section does not affect the descent of an estate tail or other entailed interest in real or personal propertyI am not a lawyer, but it seems to me that this excepts also from the provisions of this Bill estates that are entailed, and that a legitimated person would not succeed. If I am right therefore it is not only a case which affects legitimated persons who might succeed to Peerages or baronetcies, but also those who might succeed to an estate tail.
§ VISCOUNT HALDANE
An estate tail descends by the form of the instrument. It gives its origin to an ancient Statute, 777 the Statute De Donis on which my noble friend opposite, I think, is laying somewhat violent hands, with my full approval. But it does descend according to the terms of the instrument, and therefore it is not a question of inheritance.
The noble Viscount is a member of the Socialist Party. As I understand, it is one of the tenets of the Socialist Party that they are averse to people holding hereditary titles. It is rather surprising, therefore, to find the noble Lord supporting a proposal which will certainly add to the number of people holding such titles.
§ THE LORD CHANCELLOR
It is a remarkable thing that in every one of these Bills which have hitherto come to this House, not only the one moved some time ago by my noble and learned friend Lord Buckmaster but the Bill which came up to us from the House of Commons, these words are found, and this is the first time I remember that it has been proposed—unless it was done by the noble Lord last year—to omit the words. My noble friend Lord Oranmore and Browne is, of course, right. It is not the only exception from the Bill. There is the estate tail to which he refers. There is another exception in Clause 5 and there are others to which I need not refer, but I think they all rest upon the same principle as this.
It is a principle to which my noble and learned friend opposite, Lord Haldane, has just referred. It is that we do not propose to disturb the effect of any instrument. As he says, the exception of the estate tail is founded upon that principle. I was not responsible, by the way, for attacking the Statute De Donis. That was done by my noble friend, and again by the noble Lord opposite; but I accept the result. Still, that is the meaning of that exception—that you respect the form of the gift of the estate tail. As I read it, this exception rests upon the same principle. As the noble Lord, Lord Gorell, has truly said, all these titles are conferred upon a person and the heirs male of his body lawfully begotten. That is the established and consecrated form, and unless you are to alter the descent under that form this provision, or something of the same kind, must be retained in the Bill. I am bound to say that even if this subsection were out I am not 778 satisfied that the effect would not be the same, because I do not find in the earlier clauses anything which would alter the descent of a dignity or title of honour. Still, I always think it is better if these matters are clear, and I hope that the House will adhere to the decision at which it arrived on the last occasion to keep this clause in the Bill.
The Lord Chancellor has not answered one question that I raised—namely, whether the whole purpose of legitimation was not to declare a person lawfully begotten. Of course, if it is not, then much of the purpose of the Bill seems to me to be gone; but if it is, I cannot see how it cannot be held to affect this subsection. In many other parts of the Bill it is true there is an express intention that it should not interfere with any Act now in operation. But by Clause 8 it is so for all time, even, for example, as affecting patents to be created in the future.
§ THE LORD CHANCELLOR
I am sorry that I did not answer the noble Lord on that point. It is said that there is one thing an Act of Parliament cannot do; that is, to make a man into a woman. There is one other thing which it cannot do; that is, to turn a person not lawfully begotten into a person lawfully begotten.
§ On Question, Amendment negatived.
§ Clause 8 agreed to.
§ Clauses 9 and 10 agreed to.
§ Clause 11:
§ Right of illegitimate child and mother of illegitimate child to succeed on intestacy of the other.
§ 11.—(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 if surviving shall be entitled to take any interest therein to which he would have been entitled if he had been born legitimate.
§ THE LORD CHANCELLOR moved, in subsection (1), to leave out "if surviving" and insert "or, if he is dead, his issue," and after the first "he" to insert "or such issue." The noble and learned Viscount said: I think this is really an omission in the Bill. The effect of Clause 11 is that when the mother of an 779 illegitimate child dies intestate the child shall or may become entitled, in default of any will, to her property or some share of it. It may happen that the child is dead and has left issue, and I think that ease ought to he provided for in the same way as for legitimate next-of-kin. The words proposed provide for that contingency.
§ Amendments moved—
§ Page 6, line 7, leave out ("if surviving") and insert ("or, if he is dead, his issue")
§ Page 6, line 8, after ("he") insert ("or such issue").—(The Lord Chancellor)
§ On Question, Amendments agreed to.
§ Clause 11, as amended, agreed to.
§ Remaining clause agreed to.