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ART. VI.-THE INFANT CUSTODY BILL.
A Plain Letter to the Lord Chancellor on the Infant Custody
Bill. By Pearce Stevenson, Esq. London, 1839. This Bill will be brought forward again in a somewhat altered shape at the commencement of the approaching session, and we gladly avail ourselves of the occasion presented by the appearance of this able and eloquent pamphlet to explain the true object and history of the measure.
The law of England vests the right to the custody of all legitimate children of tender age, without regard to sex, in the father, to the entire exclusion of the mother, who cannot even see them without the father's consent. Notwithstanding the general impression amongst lawyers as to the settled character of this right, a sufficient number of cases have come before the courts to prove that it has been shockingly abused. In one (de Manneville's), a needy foreigner took away an infant daughter from the mother, because she refused to make a will in his favour, and the mother was left without redress. In a second (Skinner's), the effect of the decision was to leave a child of six years old in the custody of a girl kept by the father, who was in gaol for debt. In a third (M-Clellan’s), the mother applies upon the ground that the child, a girl of six, was suffering from a complaint of which two of her children had died," It might be better," says the judge, “ that the child should be with the mother, as the mother may be supposed to have earned the experience of what was best to be done, but we cannot make an order on that point.” In a fourth (Ball's), the wife had obtained a divorce in the Ecclesiastical Courts on the ground of the husband's adultery; she petitioned either to have the custody of her daughter (whom she offered to maintain) or to be allowed access to her at all convenient times; the specific question raised by counsel was this," whether a female child is to be deprived, by the brutal conduct of the father, of the company, advice, and protection of a mother, against whom no imputation can be raised ?" and the Vice Chancellor says, “I do not know I have any authority to interfere. If any could be found I would most gladly adopt it; for in a moral point of view I know of no act
VOL. XXI. NO, XLIII.
more harsh or cruel than depriving a mother of proper intercourse with her child.” Afifth (Smith's) was said by the Vice Chancellor to be precisely similar in facts to the last, except that the father's object was to compel the mother, by depriving her of her child, to give up some property settled to her own separate use, and the Lord Chancellor held that the Court had no jurisdiction. In a sixth (Greenhill's),1 the children were three in number, all daughters and under six years of age: the mother (a daughter of Colonel Macdonald of Exeter) was a woman on whom no shadow of reproach had ever been cast: the father was living with a mistress, from whom he positively refused to part; it was proposed that the wife and children should reside with her mother, who had always shown great affection for her son-in-law, had nursed him through a dangerous illness, and was willing to let him come and visit his children at her house as often as he pleased; and from the whole tenor of the father's proceedings it was clear that his main object was to deter the wife from instituting a suit for a divorce. The Vice Chancellor said he had no authority to interfere, and Mr. Justice Patteson made an order that Mrs. Greenhill should forthwith deliver up the three children to her husband. The order was subsequently confirmed by. the Court of King's Bench ;? but, prior to the final judgment, the mother fled the kingdom, taking her three children with her; a finale we earnestly recommend to the consideration of those who think the practice of abduction would be encouraged by the bill.
The opponents say that cases of abuse must be exceedingly rare, because, “out of the Law Reports of centuries, Serjeant Talfourd could only get evidence of six.”3 The bare fact of his bringing in the bill explains why he could not; and the wonder to us is that he was enabled to find so many; for cases are never inserted in Law Reports when the law is quite clear either way. For example, it being now quite clear that actions for seduction or crim. con. will lie, such actions
4 B. & Adol. 624, where all the other cases are cited. 2 Lord Denman intimated an opinion that the Court might interfere if a well founded apprehension of cruelty or contamination could be shown; but Mr. Justice Littledale seemed to doubt their power.
3 British and Foreign Review, No. xiii. p. 305.
would never be reported unless some incidental question should arise; and a foreigner, who tested our morality by the Reports, must be led to the conclusion that we are the most moral people upon earth. If, on the other hand, it be quite clear that there is no remedy, no evidence of the wrong will be found in them. For example, no action will lie for words, however gross, reflecting on female chastity beyond the bounds of the metropolis, unless special damage can be proved. If a bill were brought in to give a right of action for such words, would it be any answer to say that instances of injury from this species of slander must be rare, because out of the Law Reports of centuries the framer could get evidence of none? It is only, therefore, during the transition period from doubt to certainty, that cases are reported ; and considering the very slender degree of doubt that ever existed regarding the law in question, and the faint glimmering of hope consequently afforded to the sufferer, the number of cases that have found their way into the Reports raise a strong presumption that a fearful amount of well-founded complaint must have been suppressed. It appears from these that all shades of variance have been eagerly fastened on to renew the unequal contest, and that mothers were not brought to believe (perhaps hardly believe yet) that such could be in truth the effect and intention of the law, until their case had been presented under every shape best calculated to conciliate the favour of their judges, and evade the stubborn strength of the authorities,—where the right in question was notoriously exercised to cheat the wife of her property, and where the avowed object was to procure the husband complete impunity for guilt, -where the child's life depended on its remaining with the mother, and where its health, morals and happiness were risked by its being handed over to the custody of a low woman of the town.
The Reports, therefore, prove much, and disprove nothing; and those who rely on the paucity of cases, must be very
1“ Calling a married woman, or a single one, a ---, is not actionable, because fornication and adultery are subjects of spiritual, not temporal censures ; Ld. Rayn. 1004 ; except in the city of London, by reason of the custom there to cart S;1 Vin. s. 13” (Selwyn's Nisi Prius, p. 1273, n. last edition). . To understand this distinction, our lay readers should be informed that, to sustain this action without special damage, the words must impute some punishable offence.
ignorant of human nature, and have a very limited acquaintance with society. “I know many such cases,” said Mr. Leader in seconding the bill, " which at this moment present themselves to my memory. There can scarcely be a member of this House to whom some such case is not known;" and the author of a short impressive letter to the Bishop of Exeter refers to several striking examples in a manner which leaves no doubt of their authenticity:
“Is it not utterly monstrous, that in a country professing the faith which is first pure and then peaceable, there should be a law absolutely tending, as if framed on purpose, to encourage in the husband the vices that destroy household purity and peace? Is it not monstrous, that a man may marry a woman for her money, treat her like a dog, turn her out of doors on a pittance, bestow her own property on his profligate companions, withhold her young children from her, and bring up those children to despise and revile her, among associates that must end in making them as bad as himself? That he should be invited to do this, by every facility which the law can provide for wickedness; and that the repeal of such a law should be opposed by men who have the names of philanthropy and liberality for ever on their lips?
“Yet I think I might appeal to Mr. Warburton, who was so grateful to Sir Edward Sugden for his speech against Mr. Talfourd's bill, whether he has not himself known personally such grievances as I speak of. I think he may have seen, as I have, a wretched mother sitting beside her dying girl-watching the slow perishing of a sweet and highly gifted creature, whose young life had wasted under the father's harsh treatment--and he must have known, or heard at least, how that poor wife, herself a woman of considerable endowments and rare faultlessness of character, had endured the long tor
ure of fifteen years for the sake of this daughter-and how the father would not suffer his children to be Christians—how they never heard of religion, except by accident, never, I believe, entered a church; and the mother dared not speak of salvation to her dying child, and then I would fain ask Mr. Warburton if his own sister or daughter had been in the place of that unhappy lady, and the Bill respecting the Custody of Infants had come to shed a ray of hope upon her wretchedness, while there was yet a chance that care and a quiet home might save the young girl's life—if he had witnessed in that near relation, the joy and fear - the sickness of heart that cometh from hope deferred--the momentary exultation, and at last the bitter pang of disappointment; whether he would
then have felt so much gratitude to the man who procured the decision which condemned that poor young victim to the grave ? Lord Wynford once asked in the House of Peers, “ how a man could possibly educate his children if the wife were allowed to interfere ?" Can Lord Wynford think the interference of a mother quite objectionable when she desires to interfere, to teach her children Christianity ? and if she dared not to do it under her husband's roof, ought not a Christian legislature to have protected her in removing them to a place of safety for their bodies and souls ?
“But Lord Wynford might easily find other and living instances in abundance of the effects of this freedom of a bad man from interference. He may remember, perhaps, that some years ago a beautiful young woman, bearing a noble name, good and innocent, married a man who treated her brutally, and at last drove her from his house. He placed his little children under the charge of a person he called their governess, who immediately set about endeavouring to secure the father's large property to herself. One of the poor girls had the good fortune to sink early under ill-treat. ment; the other, whom nature had endowed with peculiar favour, became the object of especial persecution. The wicked mistress did all that could be done, to pervert the poor girl's character, and irritate her by indignities, and estrange her affections entirely from her harsh father, that she might represent her to him as an undutiful child. All good people avoided the house that had such an inmate; all mention of religion was prohibited, except when the father, a professed infidel, chose to scorn and blaspheme. And miraculous it truly was, that the young creature so surrounded by contamination should have grown up not only pure, but excellent. God's grace was over the forlorn girl, made motherless by the laws Lord Wynford admires; but heavy and bitter notwithstanding were the misfortunes they created for her; and heavy, if there is truth in God's word, will be the responsibility of those who might have prevented those misfortunes, and would not.
“ Nor is it only when the wife is sacrificed to the mistress that the absence of her control may do irreparable injury; there are other influences that may interfere between her and her husband. Your lordship probably knows a recent instance in which such an interference was created by the proselyting spirit of the Roman Catholic Church. Captain T., the Protestant heir to the Roman Catholic peerage, was separated from his young and exemplary wife; their daughter remained with her. Lord and Lady S., displeased that their title and large estates should descend to a Protestant family, wished this daughter to be brought up in their own religion ; and they pre