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BY
has interfered, and does interfere with the
father's right of custody, though hitherto only in cases where
property has been concerned; and the question is simply whether there shall be an interference for the sake of the
mother, as well as for the sake of pounds; shillings, and pence; and, if so, then in what way such interference can be
rendered practicable or advantageous.
exceedingly vague; for, although it be ruled that this right shall extend to the hour of an infant's birth, and
accordingly a decision to that effect was given in the case of De Manneville, where the babe was torn from the nursing
mother's breast; yet it appears by another
decision, (Rex v. Smith,) that if the child be of or about the age of 14, and
unwilling to return to his father, the law, proceeding once more on the principle of
non-intervention, refuses to force his return, and leaves him in the custody he may have chosen for
himself.* It also appears, that where property is at stake, or where heresy
in religious, or even political opinions, seems to justify public interference on behalf of the State, (whose born and
natural subject that infant, as well as its father, is assumed to be,) not only the right of custody may be interfered
with, but it may be totally annulled: the legislature may claim from the father the infant member of a
society governed by common laws, and acknowledging one common faith, to be educated in accordance with that faith, and in
obedience to those laws; and may supply the father's place by a guardian, or guardians, of its own appointing.
the most gross and open infidelity on the part of the husband, is understood to bar his power to take his children from
his wife, (although the wife be perfectly irreproachable in all respects;) if, I repeat, we add this strange and
appalling fact, we shall have an exact explanation of the degree in which, and the circumstances under which, the
father's "divine prescriptive right" is admitted by the English legislature. Yet this is the confused
and anomalous state of things which the opponents of Serjeant Talfourd's Bill uphold; this is the position of the
father's right which appears to them so faultless and perfect, that it would be sacrilege and folly to alter it,
even in the degree of alteration sought, namely, that where the wife is blameless, the legislature shall protect her
claim to access to her infant children.
absence of claim to general protection. To say that a wife should be
otherwise than dutiful and obedient to her husband, or that she should
in any way be independent of him, would be absurd: as Johnson said of a woman's independence of public
opinion, "If it were possible it would not be just; and if it were just it would not be possible." But there
is a very wide difference between being subject to authority and subject to oppression. Take any analogous instance of
inferiority of position; not a servant, for servants are by far the most independent members of the community at large;
but take a soldier, a sailor, or an apprentice; the situation of captain of a ship, colonel of a regiment, master of a
parish apprentice, being perhaps the nearest approach to despotic power known in England. In all these instances (for the
wisest and best reasons), authority is stretched to its utmost limits; but oppression is forbid
and guarded against. The sailor on the high seas, the soldier serving at home or abroad, the forlorn and friendless
apprentice, all know that the strong arm and vigilant eye of the law exist for them, as much as for those
who are set over them. Nothing but a defect of evidence--nothing but the secrecy which rarely attends crime, can in
these instances prevent acts of injustice, cruelty and oppression, from being followed by punishment. Is it so with the
authority of the father over the mother of his children? Does the clear evidence of its being a case of cruelty secure
her redress! No. But this injustice is not the result of any inferiority of social
position, implying, of necessity, as in other cases of inferiority, a certain non-interference with the authority
exerted over her; it results, on the contrary, from an anomaly in the law; from a peculiar defect of protection in this
single instance, which has not its parallel in any other feature of the social system; and which habit and prejudice
alone could teach us to mock with the name of justice.
asserted and maintained; and this is precisely the sort of balance of justice which is wanting in the matter
of Infant Custody.
within itself, but a sin that may give rise to every species of detestable
consequence; the spurious child who is the son of her lover may cheat the son of her husband of his patrimony, or deprive
others of the property who should have rightfully succeeded to it; and the grossest partialities, the bitterest enmities,
may spring up in a family where doubt has been infused like a slow poison to corrupt the best affections of
the human heart. These are the causes which make the social punishment more bitter for unfaithful wives than for
unfaithful
husbands, and there is no question but that even to women themselves this inequality of punishment appears, if not
justifiable, at least explicable on these grounds.
he may bring upon others;" but to remember only the end for which he was retained; she is
condemned to remain perfectly neuter; perfectly helpless; excluded, by the principles of our jurisprudence, from all
possibility of defence; dependant for the opinion which may be formed of her conduct, on the few scattered
circumstances in her favour which may belong to the argument on the opposite side; and of which the advocate of her
husband's adversary makes just so much use as may serve his client, who of course, according to the
foregoing rule, is his only object. No wonder that friends who have expected in a trial of this sort to see
some woman's innocence made "clear as noonday," are disappointed by the inexplicable withholding of
facts which would have established that innocence beyond a doubt; or astonished at the want of counter-accusation
against one whom perhaps they know
to have been the worst of husbands. No wonder that, as Lord Brougham stated to the House of Lords, "the consequence
not unfrequently is, that the character of the woman is sworn away," and that instances have been known in which,
by collusion between the husband and a pretended paramour, the fair fame of the wife has been destroyed.
*
ing, there may not be very many cases of great injustice and suffering in these other instances, which the law cannot or
does not touch; but I assert that it is not intended or admitted that women shall be without
remedy in these cases: on the contrary, there is an attempt at protection; and there is
no attempt at protection in such cases as would come under the Infant Custody Bill.
children at any moment, and for any cause; it never was publicly known or understood, that infidelity and brutality on
the part of the husband, and blamelessness on the part of the wife, made no difference in the decisions of courts of
justice: it never was publicly known or understood, that in this free country, a man could take his innocent
legitimate child from his wife, and give it to the woman with whom he was living, and that the English law, the law which
boasts "a remedy for every wrong,"--the law of the country which piques itself on the protection of the
oppressed--gave that mother no redress, but left her child in the custody of its father's mistress.
* Women have hitherto imagined (naturally enough), that if they could prove
they had been faithful wives and careful mothers; if they could prove that the fault of separation was not theirs; if
they could prove that it was merely from vengeance, from interest, or to gratify the caprice of some unhallowed object of
attachment, that their children were taken away, the strong arm of the law would interfere to protect them. This was
believed in error and in ignorance; but that it was believed, is sufficient reply to those who talk of the
law as it exists having been a check against separations. The very last case which was decided,
* was, under this
belief, carried by the appealing mother from Judge's Chambers to the Court of King's Bench, and from the
Court of King's Bench to the Court of Chancery, still imagining that somewhere the power to protect
must exist. She knew nothing of the supposed "check" which was to be held in
terrorem over her, to
compel her to submit to the coarse infidelities of her husband, or to part for ever from her infant children; she knew
nothing of the operation of the law which aided the oppressor to tyrannise, punishing the innocent and letting the guilty
go free. Simply imagining that her own blamelessness and affection for her children, (to whom she had been
acting a mother's holy part, while their father was living with a wanton,) would suffice to establish her claim to
protection, she appealed to the English law; and appealed in vain.
clients. The doubt appears to have been where the protecting power existed, not whether it had any existence
at all: and if we may judge by the record of published cases, this doubt seems to have obtained with judges and
barristers, as well as with mothers and wives. Lord Wynford, (one of the bitterest opponents of Serjeant Talfourd's
Bill,) when as Chief Justice Best, he decided the case of Skinner v. Skinner, referred to the
Court of Chancery as
having a power superior to the Court of King's Bench, and affirmed that the Lord Chancellor might, accordingly,
under certain circumstances, control the right of a father to the custody of his child, leaving the doubt merely as to
what circumstances would justify such control. This appears to have been the general opinion; and we are to
presume that when women, after failing in their appeal to the one court, were encouraged to proceed with a fresh suit in
the other, it was with the honest expectation, on the part of their legal advisers, that there was at least a
possibility of eventual success. That these expectations were frustrated, in no way touches the present
portion of my argument, which merely goes to prove that a general error of belief existed as to the power of the courts
(one or other of them) to protect separated mothers; that women did not know or admit that the possession of their
children, or intercourse with them, depended solely on their husband's caprice; that lawyers did not know or admit
such to be the case, without exception of
circumstances; and that consequently the "check" so loudly cried up by the opponents of the Bill never could
have existed, and never did exist.
woman can fill; so far from "'scaping calumny," she shall endure so much of it, that it would seem as
if all other women proved the degree and strength of their own virtue by the bitterness with which they assailed and
doubted hers. It is this which has been the great "check" to separations--and long may even
the injustice of society, the malice of some women, the real principle of others, and the timidity of all in
matters of reputation, exist to so beneficial an effect. There is no doubt or dispute as to the propriety, nay, the
necessity, of discouraging and discountenancing separations between man and wife; but there is no need to discourage them
by false arguments in support of oppression and injustice.
fate. But it is possible that she may not have deserved it; it is possible (as recorded cases
prove) that she may have been the victim of some lawless attachment formed by her husband, and of every species of
brutality and ill-usage, ending in desertion. Shall such a woman have no redress, because it is also true, in
other cases, that generous and excellent men have found their honest attachment repaid by perfidy, and have been
compelled to put their wives away?
remaining, like a coiled snake, basking in the warmth and protection afforded her by the shelter of her husband's
roof, and the confidence of his trust, and happy in being able by that means to hush the world's slanders into a
whisper so low that few dare echo it; a whisper so low that the husband from whom she is not "separated"
shall never hear it There are checks of all sorts against separation: the woman who tries it, only lengthens a
chain she can not break, and condemns herself to endure alone and in partial disgrace, the evils of a lot
whose unhappiness was before cheered by the esteem of friends and the welcome of society. But to declare that
henceforward it shall be understood to include a bitterer suffering; that a woman shall not dare under any, the most
grievous circumstances, to part from her husband, except on penalty of losing her children; to say that even her
involuntary separation from him in cases of his desertion for the sake of a mistress shall be equally visited on
her by the loss of her children, is not to create a chance of making women better, but to afford a certainty
of making men worse. The checks upon women are very great: eternal disgrace for infidelity, partial
disgrace for that which may not even be their choice, namely, the separation from their husbands. But where are the
checks upon men? Who visits upon them the grossest inconstancy?--is it not rather a jest in
society! There is one check possible, and it would be found precisely in such a Measure of Protection as is now
under consideration; precisely in such a degree of power as I trust to see ere long established in your Lordship's
court. So far from being a check the less against separations, it would create one check more,
and that on the side where hitherto there has been no check at all.
ments, would be so great as almost to amount to an impossibility: secondly, because the decision would be useless,
on account of the determined resistance which would be made by the father to any legal interference with his right of
custody, and which would lead to men rather submitting to be sent to prison for contempt of court than permitting their
separated wives to have access to their children. This is another very favourite argument with the opponents of the Bill;
and yet there is a very simple and decided answer to it; namely, that such control has already been exerted
on other accounts; that litigation has taken place on the subject; and that neither the decisions, nor the
carrying those decisions into effect, were found to be impracticable. Why should it be more difficult to interfere with
the children of Mr. Smith or Mr. Tomkins, than with the children of Mr. Wellesley and Mr. Shelley?
* Why is the wrath and resistance of these hypothetical fathers to be so
much more terrible than in the real cases on record in our courts of law? It would at all times be a weak and poor
argument against establishing a law, to say that it will be difficult to carry it into operation; and would apply with
nearly equal force to most laws; daily difficulties must and do arise in carrying the
greater part of them into effect. But the law-giver has a sacred
duty to perform towards the community, and if a law be just and necessary, he has no choice but to establish
it; his office is merely to provide such securities for its enforcement as the imperfection of human means will permit.
We have no reason to expect greater difficulty for the future, than has been found in the past; in the few cases
recorded, the fathers have not submitted to be imprisoned for contempt rather than obey; and the court has
not doubted its ability to decide, though the decisions were made of course on the same species of evidence
as would be given under this Bill, namely, the testimony of the family and friends of the parties at war.
solitary instances, or, in other words, that the majority of men have already (guided by principles of natural justice)
agreed to act as if women had some claim to access; or, that there are a multitude of grievous cases
of injustice which would be brought forward by the operation of the Bill. Serjeant Talfourd was taunted in the
House of Commons with only producing half a dozen cases in all, to shew the necessity of a change in the law. If the
taunt be founded on truth, then the evils described so graphically will not ensue: by the decision of a few
solitary cases our prisons will not be crammed with prisoners for contempt; the whole order of society will
not be subverted; the result will not be "frightful to contemplate." "In nineteen out of
twenty cases," say the objectors, "access is already allowed." Why, then, the twentieth case is all
that threatens danger; the small minority who have refused to consider with the great majority that a mother should be
allowed to see her child, alone come under the provisions of the Bill: and do not let us forget that this small
minority, in our recorded cases, was composed of men, base, ferocious, and unjust; men, who to force a testamentary
disposition, to gratify a mistress, or to poison the arrows of their vengeance against a helpless woman, claimed, like
Shylock, the pound of flesh next the heart of their victim. It was not a minority of justly incensed
husbands refusing an undeserved boon to offending wives; it was a minority of fierce men--adulterers--men whom
the great laws of society could not touch, whom the opinions of the majority
could not influence; but who were, nevertheless, a pest to that society, an object of detestation and horror to that
majority, and proper objects for such control as the Bill of Custody would give.
voluntarily expose it to public censure, but will rather, through the mediation of friends, make an arrangement with his
wife respecting their mutual offspring. And here I cannot help expressing my astonishment at the tone adopted by some of
those who desire to prevent the measure being carried. Any one would suppose, from the manner and substance of their
arguments, that the Bill ran thus:--"And be it enacted that from henceforth all wives separated from
their husbands shall, on application to a judge, obtain an order of access to their children, in case the husband shall
be opposed to such access; whatever may be the motive of his opposition." In lieu of this, what does
the Bill, in fact, propose? A power of appeal, by tedious forms of law, on the part of such women as are likely to
be able to prove their separation from their children to be a gross injustice. Will women who know that separation
to be a just infliction, venture on such an appeal? Can it be believed that a woman will volunteer affording her husband
an opportunity of proving her misconduct (which may still remain unknown), by forcing him into the retaliation consequent
on such an appeal? Is it probable--is it natural, to expect that a woman who is conscious that had fair justice been
done, she might have been divorced, will so far presume on her partial escape, as to expose herself to a fresh ordeal of
scrutiny and accusation? Are the cases on record during these past years, when women believed they had the
power of appeal, cases where even a doubt or slur lay on the woman's character? Were
they not all, on the contrary, cases of absolute and terrible injustice and cruelty inflicted on innocent
wives and devoted mothers? Does not the fact of their being so, afford a strong presumption that, among separated women,
none appealed who did not feel secure in their own blamelessness, and confident--too confident of
justice being done them? Does it not also afford a like presumption that future appeals would only be made on the same
grounds, since no greater power of appeal can hereafter be given, than women have imagined
they already possessed? I think the past, in such a case, may be taken as a fair sample of the future. No party, however
bitterly they might feel
towards another, would engage in a tedious and expensive struggle, knowing the probable result to be failure
and disgrace. The bad man will not try it, against an injured wife, when he learns there is a controlling power to
be exercised; the bad woman will not try it, against a justly severe husband, only to incur additional
mortification and shame. And there are others, besides the husband and wife, over whom the knowledge of the existence of
the law would exercise a most salutary influence. I allude to the family relations on both sides. It is well known that
feuds frequently arise between mothers-in-law and their son's wives, sisters-ln-law and
their brother's brides; and this for obvious reasons, though it may at first sight appear strange and unnatural.
The son and brother goes out into the world, and selects a wife to please himself; he brings this stranger
(who is, and ex-
pects to be, all in all to him,) into the bosom of his own family: persons utterly dissimilar, perhaps, in every
thought and feeling, educated in opposite opinions and prejudices, are thus suddenly forced into companionship and
intimacy; a natural and affectionate jealousy of the husband, son, and brother, who is the common link between them,
diminishes the small portion of indulgence which, under such circumstances, each might be willing to accord to the other;
they become mutually disagreeable; the bride wonders how her "beloved Henry" could have sprung up among such
odious people; the family marvel at his rashness in marrying so unamiable a person. All this dissatisfaction is increased
if the bride be a wit, a beauty, a fortune, (though that is generally the safest quality she can possess),
or in any way entitled to give herself a few of those pretty airs so common in a bridegroom's "idol."
Before time, and the good sense of some one of the parties concerned, has smoothed matters down, the bride has probably
complained to her family of the treatment she receives from her new relatives; and the husband, on his part,
has become aware that his wife is by no means viewed by his connections with the same partial eyes as his own. The
general effect is to draw the husband rather from his own family into his wife's for a time, partly because a woman
being more bound to her own home than a man, she still seeks and prefers the society of her own relations;
and partly became he is averse to see one whom he admires and tenderly loves, unwel-
come, where he especially intended and expected her to be preferred. All this does very well till (if ever) a serious
quarrel takes place between the husband and wife. In that quarrel the two families instantly enrol themselves with a
bitterness of animosity which no one who has not witnessed it would believe, and which frequently far outdoes the
feelings of resentment burning in the hearts of the two "principals:" the husband is taunted into
frenzy; the wife is encouraged to defiance; the smallest concession on his part is treated by his family as folly,
weakness, dishonourable submission. The wife finds she has to struggle not against one angry man, but
against a regiment of angry men and women, to whom perhaps the only real offence of her life has been "that having
eyes he chose her," and that she, (being young and pretty, and he much in love,) exercised at one time more
influence over him than father, mother, brother, or sister, "For, for this cause shall a man leave father and
mother, and cleave unto his wife."
own anger by the petty torture of their assistance. Scorn and bitterness mingle with her indignation and previous sense
of injustice; his mind receives the re-action of these sentiments, and the busy whispers, or open accusations of
the members of his family, put the finishing stroke to the quarrel. Nothing can follow but "war to the
knife;" the wife may, and probably does, struggle against this increasing influence, but in vain: the husband
may, now and then, feel some relentings, but equally in vain; husband and wife are parted; he is once more
the son and brother, and she the stranger, whose presence was so little desired. Trivial
circumstances may add to the anxiety of the husband's relatives to produce this end; sometimes a residence with him
would be advantageous; sometimes a fortune is to be shared; sometimes it is the direct interest of family connections to
obtain possession of, and influence over, the heir to the family estates. Every thing adds to the wife's misery,
and to her exasperation: if as in the last case, there are children, and those children are wrested from her to be
placed with the husband's relatives, of course the exasperation is increased tenfold. If, as does frequently
happen, the family exert themselves to prevent even communication between her and her children, it is increased a
hundred-fold. Individual examples are thought to be unfair, are thought to be tedious; and a woman's story
of suffering is never
above half known, for the very fact of the publicity of her
wrongs is counted to her for disgrace; but could even a portion of the
anecdotes of strange and
morbid spite, of deliberate persecution, aye, even of personal violence on the part of husband's relations to a
wife at war with him, be publicly known and related, it would be admitted, that the additional "check" is
required, not for the wife (who, as in one of the recorded cases, may be married at seventeen, deserted for
a mistress at five-and-twenty, and then told that though her marriage is indissoluble, the
offspring of that marriage are no longer her's,) but for the husband, whose bad passions are fanned to fury by
those who surround him; and for those whose desire and whose interest it is, to keep alive the flame. The most material
benefit that could be rendered by the Bill would be the check given, by the possibility of an
exposure of the real motives of these "assistants" in a quarrel, and the hazard of exposing
themselves in vain, as far as injury to the woman was concerned. Husband's relations would be
infinitely more loth to interfere, and more slow of advising extreme measures, if the fearful impunity with which all
tyranny may now be exercised, were done away with; and thus, by non-interference on their part, or perhaps an
interference for good instead of evil; an interference, (for the husband's credit's sake,) to obtain a more
decent termination of the quarrel; a still further reduction of the number of instances in which appeals might be made,
would be the result of that knowledge of the existence of a Power of Control alluded to by your
Lordship.
FORCED ACCESS WOULD LEAD TO THE ABDUCTION OF THE CHILDREN
should this power of permission exist only for the mothers whose children are possessed of property enough to make them
wards of chancery?
temptations which lead to it? by increasing the protection afforded in cases of injustice? by making it possible to
obtain by fair and equitable means what hitherto could only be achieved by stratagem or violence? by creating a power of
control which would henceforth make it unnecessary, as well as rash and imprudent, for mothers to resort to
such methods for securing intercourse with their children? I believe the exact contrary of what is thus boldly asserted.
I believe that not only the temptation to abduct the infant would be in a great measure obviated by such a measure; but
that the just authority of the husband could by these means be still exerted ever a separated wife. As it would be her
interest, if she really cared for her children, to watch her conduct, on the proof of the blamelessness of which her
claim to access was to depend; so it would be her interest to make any personal sacrifice, to comply with any expressed
desire on the part of the father of those children. What was the state of facts in a case already referred to--the
case of Mrs. Greenhill? As long as that young wife imagined her appeal could be favorably answered in the courts; as long
as she believed her access to, or remaining with her children, was a thing subject to legal control, and conditional on
circumstances, she made every offer which anxiety could suggest: she expressed herself willing to obey any
injunctions, to submit to any restrictions, to live in any part of England her husband might prescribe, or to remain with
her own
mother, at whose house he should visit the children as often as he pleased. It was not until in Judge's Chambers,
in the Court of King's Bench, and in the Court of Chancery, the claim of the innocent party had been rejected, and
the right of the guilty party confirmed: it was not until her husband had obtained a writ of attachment, or
sentence of imprisonment for contempt of court against her; that bewildered by the palpable injustice of
those decisions, and instigated by the energy of despair, she fled from England, taking her children with her. Can any
one doubt that had the power of control existed, as it was supposed to exist, the abduction would not have taken place?
Can any one, who is not blinded by obstinacy and prejudice, refuse to believe that the probable results of a
more favorable and just decision, under such a power of control, would have been the avoidance of a great public scandal;
the submission of the separated mother to a partial authority on the part of the father of her children; the residence of
those children among their natural relatives in their own country; and perhaps (for such connections as the one formed by
Mr. Greenhill are not very lasting), the eventual reconciliation of husband and wife, and a mutual guardianship of their
mutual offspring. Was not, in short, the abduction of those children caused by the want of that very power
which it is urged will give rise to abductions? and is it not equally unfair and absurd to persist in inventing results
for imagi-
nary cases, which the results in real instances exactly contradict?
could, with equal facility and safety, make arrangements for the same liberty, under the new power of protection, if once
established.
to swear, that a certain sum of money is owing to him which never was due, in order to cause the supposed debtor to be
cast into prison. It is possible that the heirs of an eccentric man shall falsely
swear, and get his servants to swear, that he is insane; and invent instances of his insanity. All these
things are possible; and in rare instances it is to be feared that all these things have been done; (though not even in
those rare instances always with success:) but because they are possible, are men to desist from
appeals to legal tribunals? or are those who are really injured to be prevented from appealing, lest their case be
founded on falsehood? Is the distribution of human justice to be at an end, because the judges are not like the
all-seeing God, ("to whom all hearts be open,") but are obliged to make the best use they can of
imperfect means towards the discovery of truth, and establishing of rights? How palpably absurd would it
seem if a man were to argue, that as he knew for a certainty that a thief had been acquitted, (either by a
flaw in the indictment, a defect of legal proof, or the false swearing of his companions,) he was of opinion that it
would be better, safer, and more according to justice, that all persons accused of theft should be hung without trial, to
avoid the future possibility of one who was guilty escaping that punishment? Yet this is precisely the same argument, in
a different form, which is gravely listened to and considered, when it is affirmed that it would be better that
all women should suffer without re-
dress, than run the chance of a bad woman obtaining access by perjury. The expectation of this great and difficult sin
being committed, is not borne out by experience of the past; the recorded cases of appeal having been those of women
against whom their husbands advanced no shadow of accusation, and where consequently there was no necessity or chance of
false swearing, the wives being precisely what they represented themselves to be; viz.
innocent and unjustly oppressed. And as I have already shewn, the experience of the past is a better
guide for the future, than lawyers will allow, because, though adverse decisions were given at intervals, all women
still believed they had power to appeal, and continued in ignorance of the grounds on which those decisions were
made.
same means, neither more nor less, which are used to discover and decide the truth in other cases, are at the option of
the Judge who is called upon to award or withhold on certain grounds a mother's right of access to her
children.
home, under the watchful notice of her own household, and witnesses may be found to prove her guilty (if she
be guilty) under the very roof that shelters her; the misconduct of the husband may be perfectly free
from observation, and impossible to obtain evidence of; a woman cannot dog or trace her husband's footsteps when he
leaves his home, nor can she (even did the torments of jealously tempt her to such baseness) send menials to watch the
haunts of pleasure where she presumes he may be; or obtain proof (without the greatest difficulty) from those who
surround the partner of his guilt. The wife of a truly honorable and anxious husband can hardly have a lover, but sooner
or later the husband shall be made aware of her crime, and put in possession of proofs which will avail as legal
evidence; but the husband himself may keep a mistress, or indulge in coarser inconstancy, and the wife (though morally
certain of the fact) be yet utterly unable to produce witnesses to prove it. In cases of cruelty, the
chances are still less in favour of the woman obtaining the divorce sought by her; for the law, to guard against the
reception of frivolous and vexatious complaints, requires very strong evidence of the husband's cruelty, and that
it should be cruelty such as may be supposed "to endanger life or limb;" which (as few men offer personal
violence to their wives in the presence of by-standers, and her own single evidence is of no avail,)
generally fails of absolute proof. Add to this the absurd law of condonation, which takes
away from the woman who has forgiven acts of cruelty and returned home, the power of complaining of them afterwards; and
there is scarcely a chance of such divorce left; for I suppose nine women in ten, struggling against their resentment or
terror of a violent husband for the sake of their children and reputation, do, at the entreaty of the husband, or by the
advice of friends, return to their homes after complaints of cruelty, and so condone the past. On these
accounts it would be very hard and very unfair to confine relief to those who had been enabled, by concurrent
circumstances, to obtain a legal verdict against their husbands.
camel; to be so outrageously shocked at the sinful female parent seeing her child at chance intervals and to
be perfectly contented that the sinful male parent should live with it, have authority over it, and never
part from its society! Verily, it is even justice, which provides that the weak party who has erred,
shall forfeit every claim of nature, and be held to contaminate her child even by looks and words; and the strong party
who has erred, shall have precisely the same enjoyment of rights and privileges as before! Vice, in the shape of the
miserable and degraded mother, is viewed with stern and merciless abhorrence; but vice, in the shape of the
husband's mistress, is contemplated with indulgence, and made welcome to such share of the young child's
society as the father may allow, which, as we have seen in at least one instance, was the entire
charge of his wife's infant.
innocent offspring has been transferred to the home of a wanton. Let them set this proved and recorded
certainty against the imaginary and invented chance, and I think even the loudest among the
class of objectors will scarcely persist in affirming that the opportunity afforded for perjury (in this, as in all
other legal evidence,) should be deemed a valid ground of opposition to the Infant's Custody Bill. The
outcry on this point is of the same nature as that which was raised upon the possibility of fathers who might resist the
law being imprisoned for contempt. It was thought frightful and atrocious that a father should undergo such
a sentence; but the fact that the mother at present is the person liable to imprisonment for refusing to
give up her children, was quietly passed over, as if it did not signify what injustice she endured. A
petition was then before the House of Commons from Mrs. Greenhill, whose husband obtained against her a writ
of attachment, or sentence of imprisonment, for refusing to give up her three female infants after the discovery of his
illicit connection; and a sentence of the same nature had been passed on another woman the day the Greenhill case was
decided.
ciliation would not be a whit the more probable be cause the woman was denied legal redress.
interfere--I care not what truth there may be in her complaints of my conduct; all I say is, that either she shall
return, or she shall never again see or hear of her children." Can the return under such circumstances
be deemed a "reconciliation," or even a voluntary and spontaneous act?
be the same thing as living with them. Sir Edward Sugden, in his masterly, though somewhat lawyer-like speech, in
opposition to the Bill, admitted that "he believed men had very little notion of the intensity of a woman's
affection for her children;" and certainly they could not shew more ignorance of its intensity than in the argument
before us; making it appear one and the same thing, whether a mother obtained leave to visit her offspring so many times
a year, or dwelt with them all the year round. A man would be very much astonished if he were told of a young wife to
whom he was deeply and devotedly attached, who was devotedly attached to him, and who could receive from no other human
being the same degree of mingled love and protection as from himself; that it must be just the same to him whether he
obtained permission to see her a dozen times a year, or took her home to his house; and therefore, under
certain conditions of difficulty, it was more than probable he would not press his right to take her home. Yet this is
the argument on which the lessened probability of reconciliation is founded: a man cannot love his wife better than
a mother loves her child; not though he felt for her every sentiment of esteem, respect, tenderness, and admiration,
which ever combined to give root to strong attachment. Neither man nor woman will be easily contented with a small
portion of the society of those they love; witness the rashness, the risks, the mad follies committed, and the dangers
run, in
illicit connections, where less apparent intimacy and frequency of communication might save both parties from suspicion.
The human heart is too fervent, there is too much craving in its love, to bear patiently this meting and measuring out of
hours; and for this reason, though a woman might thankfully and readily accept as a boon such intercourse with her
children as the intervention of the law could give, the temptation and possibility of a return to the home which was
theirs would remain as strong as ever; nay, I do not think I speak in ignorance of feminine feeling, when I
say it would be stronger than ever; for an irrevocable parting may have a power like that of death,
gradually to cause the object of regret to fade into a vague and painful dream; but the love whose memory is constantly
refreshed by partial hope and partial communication, will yearn for something more; and the woman must be of a very stern
character, or a very cold nature, who, seeing her children occasionally, would not consider within herself what obstacles
existed to her return, and what was their weight; or whose thoughts, while in her infants' presence, did not
occasionally wander back to the days when those children (now a source of bitter warfare,) were the bond of mutual
interest and affection between her and her husband--a bond which God has willed shall remain unbroken and perpetual,
amid all the strife of hearts, and the ruin of destinies, which the sin of man or the sin of woman may entail. So
thinking, and so feeling, (as it is natural to suppose
she would think and feel,) can any one believe that where reconciliation was possible it would not take
place? and where circumstances made it impossible, can any one think it just that a man
should have a right to angle for his wife's return, (under any, the most revolting circumstances,) by
the power of retaining and dividing her from her children?
that she will endeavour to justify herself to her children at the expense of her husband; but what necessity is there of
any justification, unless it is presupposed, on the other hand, that the husband takes advantage of his more full
communion with his infants to abuse and set them against his wife? And, even were this the conduct pursued by the father,
it does not follow that the mother would either need justification in their eyes, or that she would be at once so base
and so foolish as to endeavour to cause hatred to spring up in their hearts towards the father on whom they depend and to
whom they owe obedience. It would be impossible to explain to children of a tender age the circumstances of
a family quarrel; no woman would be mad enough to attempt it, knowing that the only effect must be to shake and unsettle
their minds on the great principle of parental duty, without giving her any advantage in their affections, which an
hour's persuasion and reasoning from their other parent might not equally undo. Besides, it is not only probable,
but natural, that in some cases a woman may heartily and sincerely desire that her children may love their father,
although she be separated from him. A woman of a proud and jealous disposition may part from her husband for
his inconstancy, but his inconstancy will not appear to her a bar to his children's affection. Many women, who have
separated rashly and passionately, or who have been "put away" by their husbands, would in their secret
hearts be glad of an
opportunity to return; and these women are far more likely to endeavour to impress their children with such notions as
they may wish repeated to the husband, than to say any thing in his disparagement. As to the mother's
"justification," she is very unlikely, as I have said, to need one; there is so strong an instinct of
affection implanted by God in the young child's heart, towards the being who has watched over his helpless infancy,
that the difficulty is to be found, not in justifying a mother in his eyes, or preserving a due share of
fondness for her; but, on the contrary, in any ways degrading or bringing him to dislike or forget her. You may teach a
child that his mother is an object of contempt or hatred to those around him; he will feel and know it as it were by
instinct, for children are most accurate observers. You may teach him to hush his little voice to a whisper when he
utters her forbidden name, or never to pronounce it; for this is only an effort of his half-matured reason to show
submission and compliance to those in authority over him; but Nature's great instinct will remain nevertheless
strong and unchangeable except in rare instances. He will love and honor his mother; he will sometimes wonder at her
absence, and sometimes pine for her return; he will comprehend that she is the subject of vehement displeasure, without
comprehending that she has deserved it; he will perceive that there is "a quarrel; but nothing
wherefore."
argument that the mother's visits and influence will disturb and set aside the principles of education implanted by
the father: and that is, that as the father's custody is seldom or ever real, as the child,
though nominally in its father's possession, and under his authority, is almost always of necessity confided to a
third party, (and all the recorded instances shew this to have been done,) the mother's visits, in fact, would not
interfere a bit more with the child's education, than the visits of the father. But as this matter of nominal
and fictitious custody, on the part of the father, is elsewhere alluded to in my letter, I shall not here dwell
upon it; conceiving that enough has been said relative to an objection whose only force consists in assuming, that the
court in which the power of protection may be vested will grant access to women grossly, basely, and revengefully
disposed; slanderers of their husbands, and selfishly careless of the real interests and improvement of their
children.
the framer and originator of the measure introduced last session.
which the writer of the Exposure also gave to Mrs. Norton, for reasons which will presently appear. The
"Review" of these different subjects, was published in the British and Foreign Quarterly; said to be edited
by one of the sons of Mr. C. Kemble (a name which it is new to find even in remote connection with vulgarity, bad taste,
and want of common generosity and gentlemanlike feeling). However, in this particular journal, the
rechaufée of the overlooked pamphlet was sent forth to the world, and, under
pretence of arguing the general merits of such a Measure of Protection as was proposed, falsehood and slander, expressed
in the most vehement and unmeasured terms, were poured forth upon the individuals chosen as subjects of attack. Those
individuals were Mrs. Norton and Serjeant Talfourd: Mrs. Norton, on the supposition that she had been the means of
calling the learned Serjeant's attention to the state of the law relating to Infant Custody; and Serjeant Talfourd,
on the supposition that his Bill was brought forward chiefly with reference to that lady's particular case; in
support of which suppositions the author drew a very ingenious little sketch of invented and combined circumstances,
which he denominated "The Secret History of this Bill."
vent any reasonable man from being gulled into a belief of the subjoined statements; that Mrs. Norton's own letter
in contradiction, however well written, was ill-judged, inasmuch as it called attention to what otherwise would
never have received any attention at all: namely, the article alluded to. To these gratifying assurances I heartily
wish I could have said "amen;" but experience has convinced me that there is no falsehood so foolish, no
scandal so gross, no assertion so improbable, that it will not make its way into the world at large, and receive a
credulous and confiding welcome. Whether it be that human nature, conscious of its own weakness, inclines always to an
easy belief in errors, or whether it be "that passion for hunting something," observed upon by one of the
most popular writers of our day, and which leads us to indulge eagerly in a sort of moral hunting down of a given object;
it is certain that so far from a false and injurious report requiring no contradiction, a man shall hardly
find that method of contradiction which shall be strong enough to counteract its effects. Let any disinterested spectator
watch the difference of feeling with which an evil report and its disproof (however positively and clearly it may be
disproved) are received. The one is heard with avidity, with boundless and unenquiring credulity, and with something
which, if it is not actually thankfulness for having been made aware of so much harm of a fellow creature,
is very near akin to that feeling. The contradiction is received sullenly, sus-
piciously; occasionally with no slight degree of irritation, as though you were robbing a man of something precious that
belonged to him, by taking away his belief in a scandalous rumour. A thousand questions are asked with a view to shake
the testimony of the disprover; the most ingenious and insidious cross-examinations are entered into, such as
would do credit to any lawyer at the bar, in the hopes of shewing that the said disprover is mistaken; and at length,
just as he imagines no further doubt can exist of an unfavourable nature, the believer bows his head with an unsatisfied
nod, and murmurs that "nevertheless he had it on good authority;" as though to assert his right
still to consider "that there must be something in it."--No; it is as vain to imagine
contradiction unnecessary, as to hope that it can ever be more than partially successful; for, (to return to our borrowed
simile,) we might as well attempt to whistle back a pack of hounds, as to check a certain portion of that busy crowd
called "the world," in full cry after a slander. But there are just men among us,
as well as the unjust: and to their patience I appeal, if it be thought that I lay too much stress on
the opposition of an intemperate and anonymous publication. The mischief a man does, is not always proportioned to his
talent: the sting of the scorpion may wound, as well as the stroke of the sword: and as the habitual
prejudices of men are easily startled by that which is made to appear an infringement on their proper rights and
privileges; as, consequently
an argument which affects to uphold those rights, and defend those privileges, is likely to be received with indulgence;
and much absurdity, much exaggeration, much violence, excused for the sake of the principle on which it is supposed to be
conducted; I have thought it as well to expose the nature and falsehood of the article referred to, after answering the
real objections made to the general question. It is already a sufficiently lamentable reflection how large a portion of
our weekly press, (edited too, by gentlemen whose abilities would do credit to better employment,) seek
popularity by catering for the vitiated and unintellectual taste of scandal-mongers. But if this infection is to
spread to our Reviews and Quarterly Journals; if, in lieu of temperate and grave criticism, we are to be presented with
pages of spiteful and untrue gossip; if a man is to be allowed to spend three months in putting together in cold blood
all that he can invent, and all that he can falsify, respecting individuals; and then print the confused mass as a
"Notice" of a legislative question, or "Review" of a political brochure; if the celebrity of
literary or professional men, and the characters of women are to be attacked, not only for the hebdomadal entertainment
of those who are not capable of reading or understanding graver and worthier matter; but for the misleading of such
persons as may, and do, expressly seek for serious information on a subject of public interest, (which subject is
therefore made the ostensible title to entrap them into a perusal of
private slanders;) if all this is to be done, and done with impunity, the new literary fashion will make
"Reviews" as unprofitable to the readers as discreditable to the writers.
man of foreign extraction, named Anichini, who was committed to prison by Mr. Baron Gurney for disobeying the order made
by him for delivering her daughter to her husband; but the order being referred to Mr. Baron Parke, at the earnest
entreaty of all the Judges of the Exchequer, was never publicly discussed; and to that case, therefore, (in common with
many others, which, however well known to the learned Serjeant, were not on record in the law reports,) no public
allusion was made, on the discussion of the Bill.
name she went by, and styled himself "Mr. Graham." Mrs. Greenhill, overwhelmed with sorrow and
indignation, returned to the protection of her own family, and commenced proceedings against her husband for divorce in
the Ecclesiastical Courts.
was presented praying the PROTECTION OF THE COURT, and that a proper guardian might be
appointed.
her out in his cab; that he left his wife at Weymouth, to go and live with Mrs. Graham at Portsmouth; and that he took
her with him in his yacht, &c.: in short, that as to the act of adultery it was neither attempted to be
concealed or denied; but, on the contrary, he had admitted it to his wife's uncle and other relatives, and
expressed his determination to persist in the intimacy he had formed.
shewn him great affection, especially in nursing him through the cholera, when every one else, from fear or prudence,
withdrew from the house), was willing to receive his wife and children; to give them a permanent home with her; and
was also willing that the father should come and visit his children, at her house, as often as he pleased. That
Mrs. G. was fondly and devotedly attached to her little girls, and had never been separated from them; and that the
father had always been in the habit of leaving them under her sole custody and control during his absence from home; and
though it was affirmed, on the one hand, that Mr. Greenhill was a fond and attentive father, yet it was sworn in
contradiction, that one of the little children being brought into the room with several strangers, asked Mrs.
Greenhill's uncle, "if he was papa," from which it was argued, that they had
not been in the frequent habit of seeing him, since his connection with Mrs. Graham. Finally, it was sworn,
that Mrs. Greenhill had always fulfilled, to the utmost, her duties as a wife and mother; and that there was no possible
ground for depriving her of her three little girls, but, on the contrary, every reason why she should be permitted the
care of them; and that her health, already very delicate, had suffered so much from the terror, agony, and sorrow, which
she had lately endured, that it was expected she would sink under the blow (if inflicted) of that forcible
separation.
the mother's separate claim not being acknowledged by the Court.
tately and left the kingdom, taking with her her three little girls.
case is, not whether the rights of the father are paramount, but whether the law is entirely regardless of the natural
claim of the mother."
to be with the father. In the year 1804 there was a recorded case of disputed custody, between a separated couple of the
name of de Manneville, where the husband entered by force and stratagem the house of his wife's mother, (whither
she had withdrawn from his brutality and violence,) and seizing her infant, (then at the breast,) carried it off in an
open carriage in inclement weather. His motive was to force his wife to give up some property she possessed separately.
She appealed to the protection of the courts, but they decided against her.
When she did find her child, she was not allowed to see her except in the presence of the person who had her in charge.
This lady appealed also, and offered to maintain and educate her daughter without assistance from the father; but the
court decided against her.
taken from the printed legal decisions, it was impossible they should be otherwise than the same: and
that the most ingenious person, copying from "East's Reports," and "Dowling's Practical
Cases," could scarcely introduce variety into that very monotonous task.
sympathies as his fellow men, he must have felt to be iniquitous and absurd. He was not an unknown or obscure lawyer, who
might have found the effort to draw public attention to a subject connected with his professional practice, replete with
difficulty: he had a name and a place among the proudest of the land: among the members of the legislative
assembly of Great Britain; a place, not hereditary, but won by the gift of talent; that gift which, when combined with
opportunity, a man is as much bound to use in the service of his
fellow-creatures, as the rich are bound to give alms.
Commons in April 1837; it was read a second time that session, but on the 20th June the death of the King taking place,
the learned Serjeant being consequently obliged to leave town to canvass the electors of Reading, and the consideration
of all but measures of the most immediate and pressing public importance being by common consent suspended during the
brief and hurried remainder of the session--the third reading was put off till the ensuing spring, when the Bill was
passed in the House of Commons by a majority of four to one.
They dreaded lest the hearts and minds of all unprejudiced men would be brought by this case to feel and understand the
full importance of a subject hitherto shrouded from the public eye; and which, they trusted, might after an unsuccessful
struggle be once more consigned to obscurity. It was necessary to bring forward some more disputable case,--some
case whose details were less known, and where they could therefore assume more, and admit less. They were assisted in
this by the restless eagerness and open interest shewn in the success of the measure by Mrs. Norton, of whose affairs all
that the public knew was that she had been slandered in the coarsest manner in an open Court of Justice; and who being
herself of a family greatly distinguished, and accused with a nobleman of high rank and official importance, had been the
object of much public curiosity, much public censure, eager partizanship, and bitter personality. Here was a case where
party feeling and private opinion might be supposed to be divided; where prejudices might be roused, and doubtful
judgment appealed to. This was what the objectors wanted; on this they seized with delight. Although in Mrs.
Greenhill's case there had been pleadings in Judge's chambers, in the Court of King's Bench, and in the
Court of Chancery; and in Mrs. Norton's there had been no pleadings at all; although Serjeant Talfourd was directly
employed in the one case, and only partially cognizant of the facts relating to the other; it was settled at once what
motive should
be ascribed to make the new measure at least partly unpopular; and the warning cry was
raised,--"Pause! do not pass the Bill; it is brought forward by Serjeant Ta
1996-04-21
Perry Willett,
general editor.
A PLAIN LETTER TO THE LORD CHANCELLOR ON
THE INFANT CUSTODY BILL.
"IN his youth he had been an advocate, and
it is recorded of him as a remarkable fact, that he would never defend an unjust cause."
Life of Francis, Dictator of Paraguay.
PEARCE STEVENSON, ESQ.
LONDON:
JAMES RIDGWAY, PICCADILLY.
1839.
A LETTER TO THE LORD CHANCELLOR.
MY LORD,
While the recess still affords comparative leisure for the consideration
of such questions as may be brought forward during the approaching Session of Parliament, permit me respectfully to
solicit your attention to a brief notice of the objections which have been made to the passing of the Infant's
Custody Bill--a measure which, from its being introduced with the hope of remedying a defect of power
in the courts under your Lordship's immediate jurisdiction, as well as from the fact of your acting as Parens
Patriæ for the Sovereign of these realms, would seem entitled to your especial consideration.
From the strong position at first taken by the opponents of this
measure, namely, that the legislature had no power to interfere with
"the divine prescriptive right" of fathers over their children,
they have been fairly beaten. It is proved that the law
Page 2
So far from doubting the power of the legislature to decide on this, many opposed the plan introduced last session,
because they considered it a half measure; one which did not go far enough: and even Lord Brougham,
(whose great talents and restless energies were employed, for the hour, in opposing Serjeant Talfourd's Bill,)
after arguing that women endured no greater injustice in this respect than in many others which he enumerated, observed
that it might be matter of consideration whether such a provision should not be enacted as would give power, when the
husband was parted from the wife on account of cruelty or adultery, to transfer the custody of the children
entirely from the father to the mother; or such other person as under the circumstances it might seem proper to
name; thus admitting to the fullest extent the power of the legislature to interfere; even while giving his most
strenuous opposition to the particular plan of interference at that time proposed.
Indeed, the degree of admission on the part of the legislature, of the "divine prescriptive right" of a
father to the custody of his children, appears to be
Page 3
___________________* The King v. Penelope Smith, (2 Str. 982,) where a boy,
between
13 and 14, was brought up by a writ of habeas corpus, sued out by his father, to take him
from an aunt who kept him: the Court set the child at liberty, to go where he thought fit. See also the King
v. Sir F. Blake Delaval and others, (3 Burr. 1434,) where application was made for a writ of
habeas corpus to bring up Ann Catley, a girl 18 years of age.
Page 4
To what, then, does even the present admission by law of "the father's right," so hotly raved about
by the opponents of the Bill, amount? Simply to this, that while the child is of such tender years that the custody of
the father must, from the nature of
circumstances, be purely nominal; while he is obliged to provide it with a nurse, or some other substitute for its
banished mother; in short, during that period of its life which God and nature point out as only fit for female care and
tenderness--the right of the male parent shall be strictly enforced and supported; so strictly, indeed,
that the mother who attempts to retain a child against her husband's will is liable to imprisonment
for her contumacy. But, if the child who is the subject of dispute, have attained an age when if a girl, one
rash step may plunge it into irretrievable ruin, and when if a boy, female guidance is generally of no earthly service,
and a father's authority becomes especially requisite, then the undisputed right of custody ceases to
have the protection of the legislature, and the father who, while his child was an infant at the breast, could have
imprisoned its own mother for rebellion against his claim, may find himself totally unable to withdraw his more mature
offspring from the custody of a distant relation.
If we add to this plain statement the fact that, although property and religious opinions form grounds of
interference, private misconduct does not; and that no degree of tyranny or brutality, nor
Page 5
It has been asserted, as I have before mentioned, by Lord Brougham and others, that the admitted hardships and
injustice to women in this instance, is not greater than in others; and that all such instances arise out of
their general position as inferior members of the social and political body. With every respect for the authority of the
Noble Lord who heads this class of objectors, I must deny either that the particular acts of oppression aimed at by the
Infant's Custody Bill, are the necessary results of an inferior position; or that women
do suffer equally in any other instance from want of legal proration. An inferior position, that is, a
position subject to individual authority, does not imply the
Page 6
Page 7
Lord Brougham mentioned, as an equally unjust result of the general position of women, the fact that a good
wife's property might be at the disposal of a bad husband: that even her laborious earnings might be
squandered by him on selfish and guilty pleasures, and that there is nothing in the law to prevent the
husband spending his wife's money on his kept mistress, or in any other way that pleases him. This is true, but
there is nevertheless a balance of justice in the laws respecting property, for a man cannot leave his wife to beggary
and starvation, however much disposed to do so: he is compelled to provide for her; he is made answerable for her
debts; and, so far from following in this instance any principle of non-intervention, the legislature takes upon
itself, in cases where the wrong is clearly on the woman's side, to assign a living to the wife, frequently, if not
generally, to the amount of one-third of the husband's income. Although, therefore, her inferior position as
a social member, implies that she shall not be considered as possessed of separate property apart from her
husband's control, her equal claim to legislative protection is clearly
Page 8
Again, Lord Brougham argued that, as adultery was by the law of God as great a crime in man as in woman, and
reprobated in both by the law of the land, it was a gross injustice that it should not be equally punished; which was so
far from being the case, that the woman had the utmost difficulty in obtaining a divorce from an unfaithful husband, and
then it was not such a divorce as would enable her to marry again; while the husband could, on the contrary, after a
verdict in his favour from the ecclesiastical court, obtain, almost as a matter of course, a divorce which
would enable him to form new ties. Now, there is certainly much injustice apparent in this; but there is nothing which
revolts the feelings and the understanding, as there is in the law affecting a mother's claim. The sin of adultery
is the same in man and woman; but on the part of the woman that sin may be productive of greater social evils, and
therefore it satisfies our ideas of natural justice that she should receive a heavier punishment. To say nothing of the
implied destruction of purity, modesty, of all the sweet and tender qualifies which are expected from a woman and not
from a man, the woman who is an unfaithful wife may impose on her husband, and her husband's family, children who
have as little right to his inheritance as to his affection. There is no limit to the effect of her
treachery: it is not like the man's, a single sin dying
Page 9
The greatest instance of injustice, among those enumerated by Lord
Brougham, is the fact, that where an action for damages is brought by the husband against the supposed lover of his wife,
she can make no defence; that she is not an acknowledged party to the suit, although hers is
the character at immediate issue; although in fact she is the person prosecuted; although the sole object of
the suit is to prove her guilty. While the advocate engaged by her husband is employing all the ingenuity of rhetoric
against her; assuming her guilt, and working upon the feelings of the jury by a description of the husband's
distress, (one representation being perhaps about as true as the other;) while he is considering himself
bound, according to Lord Brougham's printed words, "in the spirit of duty to
his client," not to regard "the animosity, the sufferings, the torments, or the
destruction
Page 10
___________________* By the Scotch law, this injustice is obviated; the first process
being against the woman, and the second against her supposed
paramour. By this arrangement, (which exactly reverses the English practice,) the wife is afforded a fair opportunity of
defence; and the temptation afforded by the hope of vengeance, or heavy damages easily obtained, is done away with. By
the Scotch law also, a woman can obtain a divorce which enable her to marry again; though in England she
cannot.
Page 11
But even this injustice, gross as it is that a woman should be virtually tried and virtually condemned, while she is
in fact deprived of the power of rebutting the slanders brought against her, even this injustice will not be
held by women to equal that which they endure with respect to their children. A woman may bear cheerfully the poverty
which anomalies in the laws of property may entail upon her; and she may struggle patiently through such an unjust ordeal
of shame as Lord Brougham described; but against the inflicted and unmerited loss of her children she cannot
bear up; that she has not deserved that blow, only adds to its bitterness: it is the master feeling of
her life; the strong root of all the affections of her heart; and, in spite of the enumeration of every real or fancied
grievance incidental to her position, she will still hold that injustice to stand foremost, distinct, and
paramount above them all. She is not left to the exercise of despotic power on the part of her husband as
regards property, for the law compels him to provide for her; she is not left to his despotic power in the matter of
personal violence and cruelty, for she can obtain a divorce, though it be only a divorce
â mensâ et thoro. It is in the single point of her children that
she is entirely without remedy: it is in the single point of her children that her innocence or her
ill-usage avail nothing: how then can this be rated with instances in which it is expressly
understood that she will be protected
if she can prove herself blameless and ill-used! I do not say that, in spite of this understand-
Page 12
The principal objections which have been urged against establishing such a power of protection as would enable
separated mothers to appeal successfully to courts of law, are as follows:--
I. That it would encourage and increase separations between married
couples, by removing the great check which the knowledge of the loss of her children at present imposes on the wife.
II. That it would be impossible to carry such a measure into execution from the difficulty the courts would have in
deciding domestic quarrels, and the determined resistance which would be made by fathers to legal interference in such
matters.
III. That the result of access (if it could be enforced against the will of the father,) would probably, if not
certainly, be the abduction of the children, whom the mother would thus have an opportunity of carrying away.
IV. That as the decisions would be grounded on affidavits made by the suffering party, it would afford a temptation to
perjury; and that a woman who was guilty, though not convicted of misconduct, might obtain
access by these affidavits.
Page 13
V. That it will render reconciliations less probable.
VI. That it will disturb the education of the children under the father's exclusive care.
There are other, more technical objections, such as the number of judges who were to have this power of
decision; which Lord Lyndhurst met, by stating it to be his intention to confine the power to the three Equity Judges.
These I shall pass over in silence, as being objections merely to the form of the measure of protection; and
proceed to review in order those which are against the spirit of such a measure.
I. The first objection, namely, that ALLOWING ACCESS WILL ENCOURAGE SEPARATIONS, by
removing the check which the knowledge of the loss of her children has hitherto imposed on the wife, is easily and
decisively answered. That check cannot be said to be removed which never existed; and it is certain that so
far from women in general being aware, that by separating themselves from their husbands they also eternally separated
themselves from their children; the general impression was (not only among women, but among two-thirds of those
who are now called to legislate upon this question), that until seven years of age the mother could claim
the sole custody of her infant, and that after that age circumstances would regulate her intercourse with it. Till the
painful disclosures consequent on the discussion of this Bill, were made; it never was publicly known or understood that
the father had a right to deprive his wife of her infant
Page 14
___________________* Vide the case of Skinner v. Skinner, (9 Moore. 78,)
which will be hereafter more fully referred to in these pages.
___________________* Greenhill v. Greenhill, where the husband was proved
to be living with a woman of the town, and the wife irreproachable. This case will also be referred to hereafter.
Page 15
The same degree of very natural ignorance has been shewn in a multitude of other cases; proving the same impression
(that the law would protect them,) to exist in the minds of most women conscious of their own innocence; nor can it be
affirmed that even to members of the legal profession it appeared clear that this "check to separations"
existed unconditionally; since whatever encouragement gentlemen of the long robe may be supposed to give to
litigation, it will hardly be asserted that they brought forward and argued these several cases in the different courts,
without believing that the particular circumstances adduced might obtain a decision in favour of their
Page 16
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Whether that species of divorce commonly called "separation by
mutual consent" should be permitted or countenanced by the English law, is another question; but being permitted,
the "checks" (and they are many) which combine to make such a divorce undesirable, remain precisely as they
did before the question of Infant Custody was ever touched upon or explained.
Those checks are already all on the woman's side; and the principal among them was, is, and always
will be, the loss of reputation which this step entails; for it is certain, that let the husband be ever so much to
blame, an implied doubt as to the circumstances, and the contrasting accounts of parties mutually opposed, leave a slur
on the woman's character from which she never stands thoroughly clear. Her acquaintance among her own sex, with the
exception of a few of the more noble-hearted, draw off from her; for it is as much the nature of women as of deer,
to turn upon the wounded one of their herd. Her enemies avenge past offences, under pretence of her doubtful
position: every one who has a stone, which waited only the hour of helplessness to be flung, casts it with
impunity; and let her struggle as she may against temptation; let her endeavour as she will to propitiate the more
indulgent of her self-constituted judges; let her do her best, in a situation at once the most helpless and the
most responsible a
Page 18
And before that portion of the subject be closed, which relates to the supposed checks against separation, it may be
proper to remark, first, that it does not follow, because a separation takes place, that it was voluntary on
the woman's part; and, secondly, that where it is voluntary, it does not follow that she is in fault.
Where it is not voluntary; where the husband, to use a Scriptural phrase, "puts her away," the
wife certainly may have deserved it; in all probability she has deserved it. I am not
declaiming against a class, or supposing that because the man is the stronger party he is necessarily a tyrant; I do
believe that men (and in women also) the general rule is for good, and the exception for evil; and therefore I admit,
that in this sort of compulsory parting, the strong presumption is, that the woman has deserved her
Page 19
On the other hand, where the separation is voluntary on the part of the woman, perhaps determined by her
in defiance of her husband's desire that she should remain under his roof, though it is possible also in
this case that the woman may be unworthy, it is less probable. Women guilty of misconduct are not, generally
speaking, the most eager or willing to part from their husbands. There is nothing so cowardly or so cautious as vice. It
is the woman who is or imagines herself aggrieved; who is stung by the frenzy of jealousy, or bowed under the violence of
tyranny, who comes to that rashest of all rash conclusions, "I will bear this no longer;" who insists on a
separation, and quits her husband's house.
It is the woman who is conscious of her own innocence; who fancies she will obtain the sympathy of others because she
has suffered, and that she will still preserve the respect of "the world;" who leaves the ark of her home for
the waste of its waters. A good woman may take this step and think herself justified, just as a bad woman may dread
taking it, and prefer
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I have taken this objection somewhat at length, because it is the most plausible that has been brought forward; it was
one also mainly relied on by Sir Edward Sagden, whose opinion justly carries much weight with it; but who reasoned in
this instance as a lawyer, from his own knowledge of the law, without considering that the check he presumed
to exist depended not on the state of the law, but on the woman's knowledge of the state
of the law; that women in general are, from their confined education in these respects, especially ignorant of the laws
under which they live; and that he would not probably have found, before the public discussion of this subject, one
woman in a hundred who did not believe particular circumstances would enable the Court of Chancery to decide her
claim to the custody of her infant children.
II. The next great objection urged is, that granting the justice and expediency of such control and power of
protection; granting that Serjeant Talfourd's Bill, or a similar measure, were passed, IT
WOULD BE FOUND IMPRACTICABLE IN ITS OPERATION for several reasons; first, because the difficulty of deciding in
domestic quarrels, and between conflicting state-
Page 22
___________________* See also less celebrated cases of interference. Whitfield
v. Hales (12 Vesey. 492,) where the Lord Chancellor appointed a guardian for the infants
in lieu of their own father; the case of Blisset (Lofft. 748) where the like was done, on
the ground that the father's power is subordinate to the authority of the state; and many others.
Page 23
Nothing can shew more strongly the degree to which prejudice warps and perverts the judgment of the most intelligent
minds, than the very contrasting arguments of the objectors to this Bill. No sooner has one objector shewn, in the most
eloquent and forcible language, that the result of the Bill will be that our "prisons will be crammed" with
fathers lying in contempt, than another starts up, and with indignant vehemence declaims against the folly of altering a
law merely to meet "one or two solitary instances of oppression." The first objector adds, that the mother
will never obtain access: the second takes the access for granted, and the abduction of the children as the certain
consequence. Both arguing against the Bill, but on different grounds, uphold, even in their very opposition, one of these
two opinions: either that the cases of oppression are rare and
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But whether the instances of injustice which this Bill is intended to remedy be few or many, one
thing is very certain, namely, that after the passing of this measure the number of those instances will be diminished.
It was suggested in your Lordship's brief notice of the Bill, when introduced to the House of Lords by Lord
Lyndhurst, that if the husband were to feel there was a Power of Control residing somewhere, he would
probably not compel the wife to have recourse to an application for its exercise in her behalf. In that sentence lies the
secret of more than half the benefit which such a measure would confer upon society. The knowledge of the existence
of the law would do more than the exercise of the law itself. A man who feels that nothing opposes between his
angry will and the object of his anger, will act rashly, suddenly, and probably with great injustice; for it is a
grievous temptation to the best of men to have such an uncurbed power: but the man who knows that he is responsible
for the manner and measure of his vengeance, will pause; he will consider within himself whether his wrongs will be
judged by those to whom he is responsible, as he judges them; and this very effort to place himself as it
were in the mind of another, will produce a more dispassionate view of the subject. Again; a man who knows
his conduct to be base, tyrannical, and unjust, will not
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Now, that influence is weakened, and the case is altered; the arrears of many years have to be paid up; old
heart-burnings and jealousies are to find vent; the opportunity of humbling and tormenting is not to be lost.
Bewildered by an enmity which she considers causeless or disproportioned to her offence, the wife becomes doubly
exasperated against her husband for thus abandoning her to the united efforts of those friendly foes. She considers there
is a species of cowardice in thus backing his
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III. The third objection made, is, that THIS EN-
Page 32
As usual, the answer to the objection is to be found in the very speech of the objector: for, in contradicting
Lord Lyndhurst as to the exactness of his statement respecting the power exerted by the Courts of Chancery, Lord Brougham
explained that, when the court had that guardianship of children and there was profligacy on the part of the father,
"the Judge would take care that the mother should have sufficient opportunities of seeing
them." So then, it appears the fear of abduction does not exist in certain instances; that the Court of
Chancery, when it has the wardenship of infants, takes care that the mother shall have sufficient
opportunities of seeing them. What should hinder the same precautions which are adopted by the court in these instances
(if indeed any precautions are thought necessary) from being adopted also in these imaginary cases of appeal? How comes
it that the court can safely allow the wives of ill-conducted husbands to see their children under one set of
circumstances, and not under another? Why
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Nor is it otherwise than a libel upon women, and a libel upon common sense, to assert that mothers will be
more likely to abduct their children when they are permitted to see and hold communication with them than
when they are excluded from such intercourse. The temptation to abduct the children, lies with the woman who is driven to
desperation by her inability to see or gain intelligence of them; who is writhing under the infliction of a compulsory
separation from them, which the law cannot relieve; who knows she has but that one alternative. Obvious and
most serious reflections must oppose the temptation in all cases; for few women have any separate property on which they
could maintain their children, or secure them on after independence; consequently they must be
reluctant to injure the future prospects of the infant: nor can a woman, in her conscience, view such a step in any
better light than as a retaliation of wrong for wrong. It consists with my personal knowledge, that in one case where the
abduction of the children would have been attended with every facility, the mother was withheld from attempting it by
these considerations, and I have no doubt the same feelings would influence many women
against such a step, even with a consciousness of the present state of the law. Why then should it be supposed that the
chances of abduction would be increased by lessening the
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Moreover, there is no sort of reason why security should not be given, on the part of the woman, that no attempt
should be made to remove the children from the custody in which they might be placed. It is the custom in the higher
ranks of society, when separation takes place, for relatives to become securities against the husband's future
liability for the wife's debts, after a proper provision has been assigned her; and it is to be presumed that some
sort of control is exerted on the part of these relatives, and that the wife considers herself bound in honor to them,
not to incur debts for which they have thus become answerable: why should not some plan of this sort be adopted
also with regard to the children, and the wife be bound by her securities in the same way? We have no right to assume
that this check would be insufficient to prevent a mother from abducting her child: the Bill is intended to benefit
virtuous wives suffering under unjust exclusion, and such women are not to be expected to shew such an utter dereliction
of moral principle, as to make it impossible to bind them in this respect. One of the questions of the court might be,
"What security can you give, that access, if permitted, will not be abused by an attempt to carry off the
children?" Though, as I have before said, if the court can now make the mother's access to
children in its wardenship safe and easy, it is natural to suppose that it
Page 37
IV. But, say the objectors, we do not admit that virtuous and ill-used wives alone will claim and obtain
access: on the contrary, we believe that this Bill will create "DIRECT TEMPTATION AND
OPPORTUNITIES FOR PERJURY;" the necessary affidavits will be perfectly frightful, and that by means of such
affidavits women of the worst conduct, but who have not been publicly convicted of sin, will be enabled to appeal, and
perhaps to succeed in their appeal, for access to their children.
This objection is, at first sight, the most difficult of all to get over; because no one can absolutely contradict
it: no one can deny but that perjury may occur; that there is a possibility of its occurring; and a
bare possibility of its succeeding. But why is this argument applied only to the legal appeal of a separated mother,
when, if it has any force, it equally applies to all legal appeals; to every case that can be brought before
a legal tribunal? It is possible that the concurrent testimony of several perjured witnesses may establish a
forged will; it is possible that several persons might falsely swear to an alibi in a case of burglary, and
so acquit the housebreaker; it is possible, (as Lord
Brougham observed,) that a woman's character may be falsely sworn away by collusion between her husband and
supposed paramour; it is possible that a man shall swear, and get others
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Successful perjury is by no means a common thing, especially where it is necessary to bribe other persons also to
perjure themselves; there is generally some discrepancy or contradiction in statements made with the cowardice or
desperation of vice, which betrays the party engaged in such an attempt; or some key-stone of evidence is
forgotten, for want of which the whole edifice of falsehood crumbles into ruin. But, successful or unsuccessful, there is
no greater chance of perjury in the cases which would come under the Infant Custody Bill than in any other
disputed legal matter (unless, indeed, we are called upon to believe that utter recklessness, irreligion, and false
swearing, abound more among educated women than any other class of her Majesty's subjects). Consequently the
Page 40
It has, I know, been the opinion of some, that the most simple and efficient guard against the possibility of an
unworthy woman obtaining, by dint of perjury, the boon intended for the innocent, would be to confine the relief proposed
by the new measure of protection, to such women as have been able to obtain a verdict of divorce against their husbands
for adultery or cruelty in the Ecclesiastical Courts; and certainly it would be well if such women were entitled as a
matter of course to that relief which in other cases should be a matter of consideration. But
to bar all separated wives from relief who have not obtained this divorce â mensâ et
thoro, would be to deny justice to the great majority of women in that position. Among the five recorded cases
quoted by Serjeant Talfourd, as proofs of the gross hardship and injustice of the law, there was only one
woman who had divorced her husband; the rest were separated "by mutual consent," as it is termed, or had been
deserted. The difficulties which are presumed, and asserted to exist, when the husband desires to give legal proof of the
infidelity of the wife, are obviously increased a
hundred-fold, when it is the wife who desires to give legal proof of the infidelity of the husband;
for whereas the misconduct of the wife is acted in her own
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And here I cannot help remarking, that the virtuous horror and indignation expressed at the bare possibility of an
unworthy and ill conducted woman obtaining access to her children, forms rather a curious contrast to the
eager bitterness with which the general right is upheld, which gives a worthless and ill-conducted
man the entire custody of his children. The idea that a sinful mother should be
allowed to look upon, speak to, or caress the children of an injured husband, was monstrous, was incredible, and called
forth eloquent and proud rebukes on the occasion of the discussion of the Bill: but the idea that a sinful
father should in any way be interfered with, or prevented from disposing of his children as best suited his
vengeance or his caprice, was quite incomprehensible to the defenders of his "right." Truly this
is straining at a gnat and swallowing a
Page 43
Let those who sounded this false flourish of trumpets as an alarum or warning of what might be, (by
chance, and through successful perjury,) contrived under the altered law; consider what is and has been done in the open
face of day, under the law as it now stands. Let them set against the hazard of some bad woman
obtaining access, the established certainty, that bad fathers have wrested their children from blameless
wives, to force a disposition of property in their own favour, or to gratify a brutal spirit of vengeance; that to a
blameless mother, her diseased and dying child has been refused; that from a blameless mothers care her
Page 44
The two last objections--namely, that the relief afforded by such a measure of protection
WILL RENDER RECONCILIATION LESS PROBABLE; and that the enforcement of access would
interfere with the guidance and education of the children--may be dealt with more briefly.
Page 45
The assertion that it would render reconciliations less probable, is an assertion and nothing more. It is in fact
affirming, that a woman is more likely to be soothed into a gentler state of feeling by extreme ill usage, than by
obtaining partial justice; that while her husband grinds her to the dust, and inflicts upon her the heaviest of human
sorrows, (to wit, the loss of her children,) she is more likely to wish to return to him than when he shews compelled
mercy. Granting that this were so; granting that in some cases, by inflicting a certain degree of extreme misery on a
woman, she would be brought to yield and return, (as by the application of the rack in former days, a prisoner might be
brought to yield and confess,) how does that further the prospect of a reconciliation unless the husband
also shared in the wish that she should return? What motive would there be in some of the cases contemplated
by the Infant Custody Bill, to induce him to share in that wish? As the law stands, he has the power, first, to take a
mistress; secondly, to put his wife away; and, thirdly, to claim and take possession of his children. Having arranged all
this as best suits him, without interference or obstacle, where is the argument that should make him reverse
his plans and take back the wife of whom he has got rid? He suffers neither sorrow nor inconvenience from
the state of things; on the contrary, he is in every point following out his own inclination; why should he
yield? This is one class of separated husbands, with whom recon-
Page 46
The other class would be those husbands who more closely followed the argument of the objectors; and actually
considered the custody of their children as a means and instrument in their hands; as an inducement to the
wife to return to her home, however unhappy; as a pledge, the forfeiture of which can be held in
terrorem over her to prevent her resisting any violence or any insult. With women of a weak and timid
disposition, or of an irresolute and passionate spirit, joined with strong affections, this might succeed; and if by
reconciliation be meant simply the return of a woman to her husband's house, there is no doubt it might be effected
in many instances; though in others, where the woman shewed more fortitude and nobleness, and at the same time more
steady resistance of wrong, this permission by law to rack the heart instead of the body, would be found
utterly to fail of its purpose. But the question is, on what principle the legislature should give a man this power to
torment; this power to say to his wife "You shall bear blows, you shall bear inconstancy, you shall give up
property, you shall endure insult, and yet you shall continue to live under my roof, or else I
will take your children, and you shall never see them more?" Or, on what principle, if his victim leaves him, he is
to say with hard and insolent triumph, "She shall return to her home, or weep her heart out; I make no
promise--I admit no man's right to
Page 47
That reconciliations do occasionally take place between separated couples, and that many more would take place were it
not for false shame or false pride on the part of one or other of the separated parties, and the eternal interference of
friends and relations, is very true. But it is greatly to be doubted that any of these are such cases as would come under
the Infant Custody Bill; or, if they were, that reconciliation would be less probable, because one of the preliminary
steps towards cessation of hostilities was already taken, in the partial admission of the mother to her child's
society. This objection is founded on the notion that if a woman could see her children without returning to
her husband, it would not be worth her while to return; but this is an argument based on very false notions
of the degree and strength of a mother's love. To be allowed to see a little child occasionally, and be satisfied
that it was apparently doing well, might satisfy a father, because, at the best he does little more in his
own home: but no woman who could be with her children, would be content merely to see
them: the permission to visit them might be an indulgence and relief in comparison of being utterly excluded, but
it never could be held to
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VI. The last objection, (and also, I think, the one that has least shadow of justice,) is, that the enforcement of
access would SO DISTURB THE EDUCATION OF THE CHILDREN under the husband's
superintendence, that it would be impossible for him to carry it on properly. This is at once assuming that the
permission of access will be abused; that it will be obtained by an unworthy woman; that the mother will not have any
true affection for her children, but only hatred of her husband. In short, it is begging the whole question, and
considering the relief intended for virtuous wives with profligate husbands, as an indulgence invented for profligate and
ill-conducted wives with just husbands; it is considering the relief
intended to be granted at the discretion of the court, after a careful review of the whole circumstances of the case, as
a relief rashly, blindly, and stupidly allowed, without any reference to such discretion.
For how otherwise, except by thus begging the question, can it in any way be expected that the visits of
the mother should be injurious? It is urged
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There is another very strong plea in answer to this
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I have, as far as lies in my power, pointed out what I conceive to be the unsoundness and injustice of all the
principal objections urged against the spirit of the Infant Custody Bill; leaving its technicalities to be dealt with by
others; and I shall now entreat your Lordship's further attention to a few brief observations on a very singular
attempt at opposition to the Bill; founded neither on a fair remonstrance against its probable results, nor a fair
enquiry into its defects as a practical measure; but simply on grounds of abuse of certain individuals, and more
especially of
Page 54
While the Bill was in progress, and before it had been brought up to the House of Lords, a pamphlet in opposition to
it, containing about an equal portion of invective and argument, was sent round to the members of that assembly. It was
entitled "An Exposure" of the immoral tendency of the Bill; and the author modestly wound up with a sentence
expressing his hope that the House of Lords would reject the measure in spite of its having been passed by
large majorities in the Lower House; as, by seeing his pamphlet carefully forwarded to all the Peers, he had left them
"no excuse" for deciding as foolishly as the Commons.
Apparently however, even the author himself entertained very strong doubts as to the Peers availing themselves of the
advantage over the Commons, afforded them by the possession of his pamphlet; for he afterwards published it
(with the addition of a great deal more invective and personal abuse) in a periodical journal; where it lost the title of
the "Exposure," and, like a snake in summer, casting its old skin for a new one, assumed the respectable garb
of "A Review" of the speeches of Mr. Serjeant Talfourd; of a pamphlet in favour of the Bill,
privately printed and circulated, and attributed to the Hon. Mrs. Norton;*
and lastly of an article in the Metropolitan,
___________________* This lady published a letter, (in contradiction and disproof of the slanders
connected with her name by the Reviewer,) which appeared at the time in most of the Morning Papers.
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When I first mentioned my intention of commenting on this professed "Review,"--I was earnestly
assured that it was quite unnecessary: that the spiteful vehemence, gross personality, and childish folly of the
greater part of the argument, would of itself pre-
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With respect to the attempt made in the British and Foreign Quarterly, to set this fashion of personalities, I hope to
shew that the attack upon individuals, there, has not been very successful; and waiving in this instance the precedence
to which ladies are considered to be entitled, in order to disprove at once the imputation conveyed against Serjeant
Talfourd, I beg leave, in answer to this anonymous author's "Secret History of the Bill," to give the
Real History and Origin of that measure, in which there is as little shuffling or mystery as the plainest and most honest
man could desire.
In the year immediately preceding that session of Parliament, during which Serjeant Talfourd made a successful attempt
in the House of Commons to revise and alter the law of Infant Custody, he had himself been employed as counsel in two
cases of dispute respecting the "father's right." In both these cases he was counsel for the
husband; in both, the circumstances were of extreme hardship as respected the mother; in both, Serjeant
Talfourd's explanation and support of the present state of the law (as admitting of no consideration
of the mother) was successful; and the husband obtained a writ of attachment or sentence of imprisonment against his
wife. One of these cases was that of a lady married to a gentle-
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The other case in which Serjeant Talfourd was employed (as counsel for the husband), was that of Mrs. Greenhill, who
afterwards presented a petition to the House of Commons, and the report of whose painful history may be briefly copied
here.
In the year 1829, Miss Macdonald (daughter of Colonel Macdonald, of Exeter; grand-daughter, I believe, to Sir
W. and Lady Chambers; and niece to Mr. Chambers the magistrate;) was married to B.C. Greenhill, Esq., of Knowle Park.
Three infant daughters were born of this marriage; and Mrs. Greenhill, in the autumn of 1835, was residing with these
children at Weymouth, when she received intelligence that her husband (who was at that time absent in his yacht) was
unfaithful to her; that he had for more than a year cohabited with a female of the name of Graham, passing her off where
he was not known, as his wife, and allowing her sometimes to assume his name; while at others he adopted the
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On Mr. Greenhill being informed of the discovery that had been made, and the plans his wife had in consequence
adopted, he became anxious to prevent the proceedings in the Ecclesiastical Courts, and accordingly sent his attorney to
obtain an interview with Mrs. Greenhill, and induce her, if possible, to relinquish the proceedings. The outraged wife,
however, expressed her resolution to adhere to the measures adopted in unison with the opinions of her own family; and,
finding that she would not consent to forego the suit, her husband changed his tone, and his solicitor was instructed to
write and make her aware of the insult and injury which would be added to the wrong she had already
suffered, in the event of her persisting to go into the Ecclesiastical Court; which was accordingly done: and she
was ordered instantly to resign her children.
Mrs. Greenhill did not, however, obey this command; and the next step taken by her husband was to move for a writ of
habeas corpus, compelling her to produce the three children on the 28th October, at the
house of Mr. Justice Patteson. As soon as the writ was issued, and before its return, the mother instituted a suit in
Chancery, for the purpose of making the children wards of that Court; and a petition
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On the night of the 28th October, in obedience to the writ of habeas corpus, Mrs.
Greenhill having arrived with her children from Exeter, appeared with them at Mr. Justice Patteson's. Some argument
by counsel on each side took place before his Lordship, who ultimately allowed the matter to stand over till the evening
of Thursday, the 5th November, the children meanwhile remaining with the mother, and their presence being dispensed with
by the consent of all parties.
On the morning of Thursday, the 5th November, the petition in Chancery was heard by the Vice-Chancellor, and
six affidavits were read before him, the substance of which was as follows:--
That Mr. Greenhill had, as already stated, carried on an adulterous connection with Mrs. Graham, for more than a
twelvemonth; and that he positively refused to part with her (although he affirmed, that he had expressed
his regret and contrition to his wife, and made overtures of reconciliation); that on being told by his wife that she had
heard he had taken a house for three years for this woman, he replied, "it was no business of hers if
he had taken it for ten years;" that he allowed Mrs. Graham to take his wife's name, and call herself
"Mrs. Greenhill;" and at other times he called himself "Mr. Graham;" and that he
desired the servant, who also occasionally waited on his wife, to wait on this woman, and drive
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That Mrs. Greenhill firmly believed, that her children, if taken from her, would be prevented from seeing
her, and delivered over to her husband's mother, Mrs. Mary Tyler Greenhill; that the said Mrs.
Mary Tyler Greenhill had not only abused and quarrelled with her daughter-in-law, and refused to see her
grandchildren, but that she had been at law for years with her own son; and that so bitter was their
estrangement, that Mr. Greenhill had said to a friend who advised him to be reconciled to his mother, that such
reconciliation was impossible; and that they were, in fact, only drawn together by the anger of Mr.
Greenhill against his wife, and since the quarrel between the parties. That for these, and other reasons, neither
Mrs. M. Tyler Greenhill, nor Mr. Greenhill himself, were fit persons to have the custody of these infant children, and
that their mother was a fit and proper person, and neither her husband, nor any other person, alleged
anything to the contrary, nor had there been at any time a shadow of imputation against her. That Mrs.
Greenhill's own mother, Mrs. Macdonald (who had always been on good terms with her son-in-law, and
had
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All this having been sworn, the Vice-Chancellor gave an adverse decision, and dismissed the petition;
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Similar affidavits were read again the same evening, before Mr. Justice Patteson, who was attended by counsel on each
side. His Lordship took time to consider these affidavits; and said that before he decided, he would consult the other
judges.
On the 10th November, his decision also was given against the mother's claim, and he signed an
order that Mrs. Greenhill should forthwith deliver up to Mr. Greenhill his three infant children.
On the 12th, that order was made a rule of Court, and served personally by Mr. Greenhill on his wife, of
whom he, at the same time, demanded the children. Mrs. Greenhill gave only a written reply, couched as
follows:--
"Mrs. Greenhill is desirous of paying the utmost respect to the Court; but as she feels that the health and
comfort of her three infants (under the age of six years), will be destroyed by their removal from her care, she prefers
sacrificing herself, if it be called for, rather than so sacrifice her children; being well
assured, that their removal is with the ultimate intention of excluding her from all communication with them."
Mr. Greenhill's next step was to make affidavit of the service of the rule, and of his wife's refusal to
part with her infants, in order to obtain a writ of attachment against her; i.e.--to cause her to be
imprisoned for contempt of Court.
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Mrs. Greenhill, on her part, obtained a rule nisi in the Court of King's Bench,
calling on her husband to shew cause why Mr. Justice Patteson's order should not be set aside, and the children
remain with their mother.
A short delay was granted to Mrs. Greenhill to shew cause why an
attachment should not issue against her; and the same delay was allowed to Mr. Greenhill to shew cause why Mr. Justice
Patteson's order should not be discharged.
The matter was argued on the 24th November--Mr. Serjeant Talfourd appearing for Mr. Greenhill. At the conclusion
of the learned Serjeant's address, Lord Denman observed that it would be better that some arrangement should take
place, so that both parties
should have access to the children; and to effect that object a further delay was given. On the following day, Mr.
Serjeant Wilde, Mr. Serjeant Talfourd, Mr. Greenhill and his attorney, and Mrs. Mary Tyler Greenhill, met for the purpose
suggested by Lord Denman; but owing, as affirmed, to the obstinacy and perverseness of this lady (who seemed determined
to prevent her son from coming to any reasonable terms), no arrangement was entered into.
On the 30th instant, Mr. Greenhill declared, through his attorney, that no further steps would be taken for such
arrangement; and demanded to see the children. Mrs. Greenhill becoming alarmed lest they should be seized from her,
withdrew precipi-
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In January the matter was again argued (Mrs. Greenhill being still abroad), and the rule obtained by her, to set aside
Justice Patteson's order, was discharged; or, in other words, the last attempt made by this unhappy and unoffending
woman legally to retain possession of her infant children failed; the decision of the judges being given against the
mother's claim.
In the course of the arguments advanced by the counsel on either side, at the different periods of this cause, the
following observations were made in support of Mrs. Greenhill's case:--
"The children are all females, and infants of tender years, and whom it appears most
UNNATURAL to tear from a mother who is devotedly attached to them, against whom not a
shadow of imputation rests, and who her husband does not hesitate to admit is in every respect a fit and proper person to
have the management of them. Illegitimate children under the age of nurture (which has been held to be seven years),
cannot by law be taken from the mother; and it seems most unnatural and unjust that legitimate children should be in a
worse position."
"Mrs. G. does not dispute her husband's right to the custody of the children. She has offered to take them
to any part of England Mr. G. shall prescribe, and to obey his injunctions, provided she be not wholly separated from
them. The question in this
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"The mother does not even insist that the children shall be in the
same house with her, but only that she shall have access to them. The real question is,
WHETHER THE RIGHT OF THE FATHER AMOUNTS TO THE EXCLUSION OF THE
MOTHER."--"Where the father applies, as in the present case, not for the purpose of really
asserting his own right, but merely for the purpose of excluding the mother from having access to her children, this
court will (in the exercise of its discretion) refuse to permit so harsh and cruel a proceeding: and pause before
it makes an order to deprive children of so tender an age of the care and superintendence of the mother. The court
may be quiescent, and is not bound to act. If this rule is made absolute, Mrs. Greenhill will have no means of
superintending the education of her infant daughters, nor will she be able even to see them."
Such were the arguments advanced by the advocates of this young
wife and mother, and such were the arguments Serjeant Talfourd had to rebut; supported as they were, by the eloquence of
two gentlemen of the highest reputation at the bar, Serjeant Wilde and Sir William Follett. The clear and palpable
injustice of the case it would have been impossible to deny, nor was it disputed or touched upon; but the learned
Serjeant argued, that former decisions shewed the legal right under all circumstances
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In the year 1824 there is recorded a second case of disputed custody between a separated couple of the name of
Skinner; in which (the parties being separated, from the cruelty and brutality of the husband,) the wife's child
was actually taken from her, and given into the custody of the woman with whom the husband cohabited: the husband
being then imprisoned for debt in Horsemonger Lane Jail. This mother also appealed, and in spite of the
gross circumstances of the case, the courts decided against her.
In the year 1827 there is recorded a third case of disputed custody, between a separated couple of the name of Ball;
in which the wife had obtained a divorce â mensâ et thoro on account of her
husband's bad conduct. Her young daughter (who had continued with the mother,) was seized by the father one day
that she went to visit him, and was sent where the mother could not for some time discover her.
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In the year 1830 there is recorded a fourth case. of disputed custody, between a separated couple of the name of
M'Clellan. The child was at school, and became afflicted with scrofula, by which disease the mother had already
lost two other children. She persuaded the governess, from motives of compassion, to allow her to take home her child and
nurse it. The father procured a writ of habeas corpus to take the child out of the
mother's custody, and send it back to school. The cause was argued, and a very feeling speech was made by Mr.
Justice Patteson on the peculiar circumstances under which the mother resisted; but the court decided against her.
Serjeant Talfourd, in opposing Mrs. Greenhill's claim, went through all these recorded cases, which he
afterwards noticed in the parliamentary discussions on the Infant's Custody Bill. The introduction of them in his
speech was much insisted upon by the writer in the British and Foreign Quarterly, as proving the "
remarkable coincidence" between the instances of hardship quoted in Mrs. Norton's
pamphlet, and those mentioned by the learned Serjeant: the writer never perceiving, in his mingled irritation and
stupidity, that of course if the instances were
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These cases, then, were familiar to Serjeant Talfourd, and relied on by him in the successful support of a
client's legal right, in the autumn of 1835; when, unless the gift of prophecy had been added to his various
talents, he could not possibly have foreseen that the same species of dispute would arise between Mr. and Mrs. Norton, as
was then being argued between Mr. and Mrs. Greenhill. Doubtless it is an ungrateful and painful task for any man to be
compelled as an advocate to uphold and defend a legal right which he perceives to be grossly oppressive and injurious in
its consequences: nor can it be wondered at, that his successful pleading in a case like the one we have narrated,
should have given rise to a very different feeling from the professional satisfaction which may be supposed to attend
successful pleading in general.
He had obtained a decision adverse to the mother, not because she had in any way deserved that heavy sorrow; not with
any reference to real and natural justice; but simply because PRECEDENT (the lawyer's
God,) was against the admission of her claim. He had been compelled to support that as an advocate, which as a man,
possessed of the same generous
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Serjeant Talfourd did avail himself of his opportunities.
He called the attention of Parliament to the defective state of the
law; he brought under the notice of other men, the facts and instances of its abuse so painfully forced on his own
consideration; he besought them to vote with him for its alteration, that when hereafter some young mother appealed
English justice not to suffer her to be parted from her children, merely because her husband preferred a
wanton to his wife; some better answer might be made, than a recapitulation of all the infamous cases of hardship which
proved that it was the law that women should suffer without redress--that it was 'so written in
the bond.' The last decision in Mrs. Greenhill s affairs, as to the rule obtained to set aside
Mr. Justice Patteson's order, was given in January 1836. The measure proposed by Serjeant Talfourd was submitted to
the consideration of the House of
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Such is the simple outline with which I am enabled to confound the arrogant folly of the author who invented the
"Secret History" of this public measure; and whatever the difference of opinion may be as to the probable
efficacy of its provisions, whatever defects may have existed or been supposed to exist in it, no man can say that the
occasion which first gave rise to its introduction was not a most just, proper, and natural opportunity for the exertions
made by Serjeant Talfourd to obtain a more equitable law.
It did not however suit a certain class of the opponents of the Bill to admit this as the original cause
of the measure to which they objected. They smothered all allusion to it--they suppressed it as if it had not
existed; they feared a case so clearly and iniquitously unjust, ending in decisions so palpably absurd, would prove too
strong for all the plausibilities they could muster in behalf of the non-intervention system.
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