xt70rx937t9n_523 https://exploreuk.uky.edu/dips/xt70rx937t9n/data/mets.xml https://exploreuk.uky.edu/dips/xt70rx937t9n/data/46m4.dao.xml unknown 13.63 Cubic Feet 34 boxes, 2 folders, 3 items In safe - drawer 3 archival material 46m4 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Laura Clay papers Temperance. Women -- Political activity -- Kentucky. Women's rights -- Kentucky. Women's rights -- United States -- History. Women -- Suffrage -- Kentucky. Women -- Suffrage -- United States. Child welfare pamphlets and leaflets text Child welfare pamphlets and leaflets 2020 https://exploreuk.uky.edu/dips/xt70rx937t9n/data/46m4/Box_34/Folder_3/Multipage24984.pdf 1883-1912, undated 1912 1883-1912, undated section false xt70rx937t9n_523 xt70rx937t9n  








JAE/{ES BRYCE, D.C.L., M.1’.,

(Ray/[us .P/‘Q/Z"S.°07‘ qf (Tr/l 1an in Mc- I'm'rw‘sz'fy of afford),








Exu‘mc'rnn mum
















Copies of this Pamphlet, price 1;,41. each, or 13137. per
dozen, post-free, may be had from Mrs. VVOLSTENHOLME
ELMY, Congleton ; also, on SPECIAL APPLICATION, copz'cy

free of charge, for gratuitous distribution.



(Mr. Bryce, Mr. Davey, Mr. Andn'aon, Mr. Stavalcy Hill.)

Order for Second Reading read.

Ma. HOPWOOD, in moving that the Bill be now read the»-
second time, said, that its terms had been carefully drafted.

Ma. BRYCE, in ascending the Motion, said, the Bill which
he had the honour of laying before the House dealt with.
a difficult and complicated question; but he hoped to be able
to convince the House that its principles were sound. The old
law of England, in dealing with the rights of parents over
their children, started from the doctrine of the absolute supre-
macy of the husband and father; and, although that condition
of things had been somewhat modified, there remained serious
hardships, the law being still harsh and unjust to the claims of
mothers. The Common Law considered husband and wife to be
one; but it did so on the basis of giving the husband all that
was his own and all that was his wife’s, leaving her nothing,
and that principle, Which had been consistently applied as
regarded the property, was also applied in the family, as re-
garded the respective rights of the parents to the custody,
guardianship,- and control of their children. The father was
held to be sole guardian during his lifetime, and was entitled,
to the control of the child for all purposes, until it approached
the age of majority. He could also, after his death, dictate-
the future custody of the child’s person and its education, by his.
power of appointing a testamentary guardian, and the Courts of,”




Law adopted the principle that the child must be brought up
in the religion to which the father belonged. The wife had no
’rights during the father’s lifetime; and even after his death a
testamentary guardian excluded her altogether from having any
control over the person, or any share in the education, of her
child. She had, moreover, no right, even when she survived the
father, and no testamentary guardian had been appointed by
him, of herself appointing a guardian by will. It was only in
very extreme cases that the Courts of Law—it was till the passing
of the Judicature Act the Court of Chancery—interfered for
the protection of the children, and removed them from the cus—
tody of a father whose conduct was so flagrantly immoral, or
otherwise prejudicial to the best interests of the child, that it
'seemed impossible to leave the child any longer under his guar-
dianship. He ought to add that the preference which the law
showed to the father was so great that even an agreement made
before marriage as regarded the religion in which the child
should be brought up was held to be null and unenforceable, as de-
rogating from paternal rights which could not be forfeited by him.
This state of things began by degrees to shock the advancing
sentiments of mankind; and an Act was passed—the 2 & 3
VicL—which gave to the mother certain rights as regarded a.
child under seven years of age.‘ That Act was followed by
another in 1873, extending the law still further. This Act, he
believed. was brought in by the hon. Member for Cambridge
Borough (Mr. W. Fowler), and he (Mr. Bryce) thought the
country and the House were much indebted to him. The effect
of the latter Act—36 Wot. c. 12—was to provide that it
should be lawful for the High Court of Chancery, upon the
petition of the mother, to order that she should have access to
the infant at such times, and subject to such regulations, as the
‘Court should deem proper; or that the infant should be delivered
into her custody until it had reached 16 years of age, such
custody being subject to certain regulations for the access of
the father or guardian. The Act also did away with the ancient
rule that the father could not divest himself of his right to the
ucustody of the child by any agreement made on separation.


The law had remained on that footing since 1873, subject to~
the extensive and beneficial provisions in the Act of 1857—7
the Act which established the Court of Divorce and Matrimonial
Causes. That Act gave a very large discretion indeed to that
Court, in providing for the custody of children, whenever it
pronounced a decree, and he did not propose in the Bill to inter-
fere in any way with its jurisdiction, since it did not seem to him
to require amendment or enlargement. But even after the
passing of the Acts of 1857 and 1873, there still remained very
serious hardships in the law. It still failed to recognize the
claims of mothers, and in constantly preferring the father often.
produced injury to the child. In the first place, the mother,
under the construction which the Courts had placed upon the
Act of 1873, was usually excluded from the custody of her
child, except when such grave misconduct could be made out
against the father as might affect the child injuriously.
Secondly, a guardian appointed by the father was the guar-
dian of the child to the exclusion of the mother, and there was
no provision for making the mother the guardian of her child
on the death of the father. Even if the father had omitted.
to appoint a guardian, the mother did not hold that position,
and the father could, out of spite, appoint a guardian who was,
hostile to the mother, although he might have neglected the
child, and she be wholly without blame. Thirdly, when the
mother survived the father, she could not appoint a guardian to
take care of her child after her death, even when no guardian
had been appointed by the father. He need not remind the
House of the hardships Which had occurred under this law, in.
which grave injustice and much mental suffering had been in-
flicted 011 mothers. Even Judges had remarked upon it as
being partial and cruel, when mothers appealed to them, whom
they found themselves unable to help. They disapproved and
regretted the law, but it was none the less their duty to adminis-
ter it. Some time ago there was a. case of a lady of some emi-v
nence in the musical world, who had been obliged to separate-
from her husband on account of his cruelty. One night she was.
absent singing at a concert; and, When she returned, she found




’that her two children had been carried off by her husband during
her absence, and it was weeks before her agents succeeded in
discovering the children, and the younger one, when found, had
”been so ill-cared for that its life was in danger. Again, there
was a case not long ago in Scotland—and perhaps the Scottish
law in this respect was even harsher than the English—where a.
young lady was so ill-treated by her husband that she had to
“leave him. Shortly afterwards she gave birth to a child, and
when it was only three weeks old the husband carried it off, and
she was unable to recover it. Another lady in Scotland, he
believed, was compelled to escape from the jurisdiction of the
Scotch Courts with her child, in order that her husband, from
whom she had been separated, should not take the infant from
her. Cases like these showed how much ground mothers had
for invoking the aid of the House. The Bill might be re-
garded as a corollary to the Married Women’s Property Act,
which had an important bearing upon the subject. The prin-
ciple of that Act was, that the husband and wife were to have
equal rights in regard to property. It surely followed that
the right of the wife to a share in the guardianship of her
children—a right far more prized by women than any right
of property—should also be recognized by the law. Indeed,
without such a Bill as he now proposed, the Married VVomen’s
Property Act might be rendered null and void, as the power
possessed by the husband, over the persons of his children,
might enable him to compel a wife to bow to his will in
all questions affecting property. The husband now possessed
a terrible engine of oppression, which he could bring to bear
upon the wife, and thus nullify the benevolent intentions of the
Legislature. He had spoken chiefly of England and Ireland,
but he believed that in these points the law of Scotland was
substantially the same as that of England. There were similar
powers vested in the Courts; but there was no Act in Scotland
which corresponded to the English Act of 1873. So far as there
was a difference, Scotch law was somewhat harsher than Eng-
lish ; and the Scottish Courts seemed either to possess a narrower
discretion than those of England, or to regard the rights of the

 mum‘s BILL. 7

father with a still warmer favour. The Scotch Court of Session
held that cruelty and brutality on the part of the husband were
no reasons for taking the custody of the children from him,
and giving them to the wife. They said that nothing less than
the father’s adultery was sufficient to set up such a claim for
transference of the husband’s rights, and one Judge had even
declared that adultery might not always form a sufficient
ground. He would now shortly explain the leading amend—
ments which the Bill before the House would introduce into
the law. The 2nd clause of the measure provided that the
parents of an infant, during the continuance of their married
life, should be the child’s joint guardians. This provision
was necessary in order to negative the presumption of the
Courts in favour of the husband. It was only by laying down
such a principle as that that we could get rid of the consequences
of that old doctrine of the law which favoured the father at the
expense of the mother. Nothing less appeared sufficient to give
the Courts that full discretion which they ought to have, in order
to guard the interests of the children in the first place, and, ii)
the next, the interests of the parents as persons on a footing of
equality. The 3rd clause provided that, on the death of either
parent, the survivor should be the child’s guardian. The 4th
clause dealt with the question of guardianship, and laid down
that the surviving parent might appoint a testamentary guardian,
provided that the child were .still unmarried at the time the
power of the guardian was to take efl‘eet. \Vhere no guardian
had been appointed by the surviving parent, a guardian ap-
pointed by the parent first deceased would act. To both such
guardians, however, would be preferred a guardian selected by
the two parents jointly in their lifetime. It was further provided
that where the child, on the death of the father, became entitled
to any real or personal estate, the father, if he died first, might
appoint a guardian for such estate ; and the reason of this pro-
vision was that it might frequently happen that a woman, al—
though she would be the best personal guardian of her child,
might not be able to manage the business affairs of a large
estate. This provision, however, would not interfere with the




mother’s right of custody in regard to the infant’s person. The
5th clause dealt with the case of parents living separately from
one another, and the question arising of the control of the child
or of its religious training; and this clause enacted that, on any
such question arising, the Courts should have power to make
such order as they thought fit regarding the custody or religion
of the infant. This clause extended the discretion of the Court
to infants over 16, thus going beyond the Act of 1873; and,
taken in conjunction with Section 2, the clause very largely
increased the power of the Court in regulating the custody of a.
child. According to the present law, the father was preferred
to the mother in any question of guardianship, unless a strong
case were made out against him. The Court would, however,
under the Bill, regard both parents as equal, and endeavour,
while thinking first of what was best for the child, to do full
justice between the parents. The general efi'ect of the Bill,
therefore, was to place the father and mother on a footing of
perfect equality as regarded the guardianship of the child, by
extending the power of the Courts, and getting rid of the legal
presumption in favour of the father. The discretion of the Court
would be exercised with equity and fairness as between both
parents. There would, of course, be nothing to prevent either
parent from making the child a ward of Court; and, in fact, it
would treat the natural guardians of the child as though they
were merely testamentary guardians. He had thought it safer
to introduce no special provisions as to religion; as questions of
that kind could be safely left to be settled by the Courts when
they arose; and the other clauses of the Bill did not call for
special mention, inasmuch as they merely extended the operation
of the measure to Scotland, and provided for saving the jurisdic—
tion now exercised by the Courts. There was, however, an im-
portant question as to the Courts by whom the powers conferred
by the Bill should be exercised. The Bill restricted them to the
High Courts of Justice in England and Ireland, or any Division
thereof, and to the Court of Session in Scotland. A strong case
might, no doubt, be made out for giving jurisdiction to the
Inferior Courts, since this would make the benefits of the Bill




more generally accessible to the poorer classes. It was not easy
to say, however, to What Inferior Courts in England such juris-
diction could properly be intrusted. There was, however, a.
feeling in Scotland for giving them to the Sheriff Courts of that
country, Courts which occupied a more important position than
the Inferior Courts in England; and if hon. Members from
Scotland wished to extend the jurisdiction to the Sheriff Courts,
he would be inclined to give his assent to the proposition. With-
out attempting to anticipate all the objections that might be
made to the measure, he would notice one or two. It might be
said that the Bill ought to have enabled either parent to appoint
a. guardian to act on his or her behalf after such parent’s death
jointly with the surviving parent. On that point, he thought
that the surviving parent was the proper guardian of the child,
and that it might lead to much unpleasantness if a third person
had power to interfere with the surviving parent in bringing up-
the child. Some might hold it a graver objection to the Bill
that where two people lived together one must rule; that the
father ought to be at the head and have control of his family,
the wife yielding to him; and the usual illustration was given
that if two people rode together one must ride behind. But
his answer was that the old system of giving the husband
supreme power over the child had not worked well in the past;
and he believed that nothing could be more conducive to har-
mony than that husband and wife should be placed in a position
of perfect equality before the law, the former recognizing and
respecting the rights of the latter. When women had had the
power over their children, they generally used that power well
—-as well, on the whole, as fathers did. So far from his pro—
posal being likely to breed discord in families, he was sure it
would improve the relations between husband and wife, by
removing from him an engine of tyranny, and from her a
motive for attaining her ends by indirect methods. It must
be remembered that the provisions of this measure would only
be needed where the parties did not agree. Where they lived
together and loved one another, all would go smoothly; where
afl’ection had ceased, the Bill would apply the principles of‘




justice. He submittcd this measure to the House as an attempt
to deal on broad and simple principles with an admittedly
difficult question—one which was among the most difficult any
Reformer could touch. He recommended it on the ground that
it conformed to the whole tendency of recent legislation, and
that it protected women to a greater extent than had ever been
done formerly. Nothing could be more harsh to women than
the present law. In conclusion, he would appeal for support to
hon. Members who remembered and acknowledged their obliga-
tions to the tender care and loving society of their mothers; to
those who, as fathers, could realize what a loss it would be if
their own children were deprived of the instruction and sym-
pathy of a mother; and to all hon. Members, whatever their
own personal experience or associations might be, he appealed to
do justice to a class of persons not directly represented in the
House. The Constitution had refused a seat in that House to
women. It had also refused them the electoral franchise. There
were many in that House, and he was one of them, who thought
the Constitution was wisely framed when it made that refusal.
But the refusal was made in the confidence that a Parliament of
men, elected by men, would care for the interests and feelings of
women not less than their own, and would protect those whose
voices could not be raised within these walls. He trusted the
House would recognize this sacred duty, and in proceeding to
better secure the welfare of children would also grant to mothers
those rights which they most valued, and in which their peace
and happiness was most involved.

Mn. HORACE DAVEY said, he thought the author of the
Bill, the hon. and learned Member for the Tower Hamlets tMr.
Bryce), was to be congratulated on the reception which the
Bill had met, because the measure had elicited a general ad-
mission that the present law required amendment. It had
been the desire of the promoters of the Bill to prevent litiga-
tion between husband and wife; and, consequently, the right
of application to the Courts was only given by the Bill in cases
of acute dispute, where the differences were irreconcilable, and


had ended in the separation of the parties. It was asked who
was to settle any difl'erences between the joint guardians?
They must settle it between themselves, doing what had to
be done in the case of every partnership known to the law,
for the law refused to interfere between partners whilst they
continued to carry on business together, and so it should refuse
to interfere between man and wife so long as they lived together.
A little give~and-take must be employed, wherever business
must be carried on; and, however high disputes might run,
ultimately some madus m'vcmh' was usually arrived at, and it
would be the same with married people under the present
Bill. They would know that t hey had to live together,
just as partners knew that they had to carry on business
together. One great objection was that this Bill would be a
fertile source of disputes and quarrel in conjugal life. That
he denied. If he had thought that such a result was likely, he
would not have taken any part in advocating it; but he believed
that what would take place would be exactly the contrary. The
Bill would not create any disputes or differences of opinion ; and
he ventured to say that, where unhappily they did exist already,
and were settled by the exercise of the husband’s last resource,
his legal power, it left behind it a sense of bitterness and
injustice in the wife’s breast that was not calculated to do good.
But if the wife knew that there was a better chance of the
dispute being ended by a give-and-take arrangement, however
the dispute might be made up, it would not leave behind it that
sense of bitterness and injustice of the law which so often
rankled in the hearts of married women. There seemed to be
an idea in the speeches of several hon. Members who had
spoken against the Bill that the wife had nothing to do With
the children—that she was, in fact, altogether an outsider in
this matter; and one hon. Gentleman had said that the idea
that the wife should necessarily be gnaidian, if the survivor,
was shocking. He (Mr. Horace Davey) could see nothing
shocking in the fact of a wife, who survived her husband, being
the guardian Of her own children. The question between the
supporters and opponents of the Bill was not a question of prin-





ciple, but of degree; and he preferred his hon. and learned
Friend’s (Mr. Bryce’s) way of remedying the defects of the
existing law, which even the opponents of the Bill admitted. It
was more scientific, and more in accordance with the principles
of legislation, that a principle should be laid down, and the
Courts left to work it out to its natural consequences. If dis-
putes unhappily arose during the lifetime of both parents, and
if they came before the Court, they had new to be settled
entirely on the assumption that the father’s right alone must
necessarily prevail, unless he had committed some grave mis-
conduct and in equity had forfeited that right. What they
desired to get, by the 2nd clause of this Bill, was that, if any
dispute came before the Courts, it should be decided, not upon
any presumption of absolute legal right on the part of either
parent, but solely on the consideration of the best interests
of the children, without any presumption in favour of either
parent. The hon. Member for Cambridge Borough (Mr. W.
Fowler) had stated that he was in favour of preserving the
natural conditions of husband and wife, and the supremacy of
the husband. But they considered that the present law did
not, as a. matter of fact, adequately recognize the natural
conditions, and the supporters of the Bill desired to bring
the law into harmony with nature. Another element to be
considered was who had the power of the purse-strings; In
many instances, especially since the Married Women’s Pro-
perty Act, it was the wife who provided the ways and means;
and, in such a. case, it was hard that she should have no power.
This 2nd clause was intended, not to introduce any new element
of discord or litigation, but to lay down a principle to guide the
Courts in case of litigation becoming necessary. By the 4th
clause the husband might, _by his will, appoint guardians to
manage the estate for his children jointly with his wife. It had
been said that there was a want of clearness about the 4th
clause; but, if that was really the case, it could be considered
and amended in Committee. In regard to the children of
mixed marriages, it had been thought that, under the Bill
as at present framed, the Court would have ample power


to decide questions as to which religion such children
should be brought up in, with due regard to their own
interest and the rights of both'parcnts. It would be a pity to bind
the Court absolutely to enforce contracts between the parents;
but it would be better that it should have power to give effect
wholly or partially to such contracts, or to decline doing so, the
governing principle being the benefit of the infants. The hon.
Member for Berkshire (Mr. Walter) had put a case of great
difficulty, and it was one of great difficulty at the present time.
Such cases had come under his (Mr. Horace Davey’s) own
observation, and they were among the most painful with which
the Courts had to deal. A husband and wife, for example, were
both Protestants. The husband died, leaving his wife surviving,
and, having had confidence in her, he appointed her guardian of
his infant children. The wife might turn a Roman Catholic.
The Court, at present, under such circumstances, might be com-
pelled to take away the children from the custody of the Roman
Catholic mother. It had no option ; because ithad been decided
that the father had an absolute right, without any regard what-
ever to the mother, to say in what religion his children should
be brought up. The law said that the children were to be
brought up in his religion. That was, he thought, a great hard-
ship. Looking at it as a practical question, it seemed to him
that the present state of the law was a great evil, and that it
would be a less evil for the children to be brought up as Roman
Catholics, by a Roman Catholic mother, than to deprive them of
the mother’s care, and have them brought up, it might be by
strangers, in order to make them Protestants, with the chance
that, when they came to years of discretion and rejoined their
mother, the religious impressions they had received might be
wiped out of their minds. He did not deny that the case put by
the hon. Member for Berkshire was one of great hardship, which
would require to be very carefully considered; but there was
hardship under the existing law ; and they ought, if possible, to
avoid producing fresh grievances and hardships. His hon. and
learned Friend (Mr. Bryce) and he would, however, When the
Bill got into Committee, give the most careful consideration to





any Amendments that might be proposed from any quarter, with.
a View to deal with What he might call the religious part of that
subject. He was far from denying that the Bill might not be
advantageously amended in Committee, or that some of the
points which had been alluded to in that debate were not well
worthy of attention; but he thought the measure was one to,
which the House might fairly agree to give a second reading.
















The “SCOTSMAN,” Wednesday, March 5th, 1884.

It is a somewhat remarkable thing to find a Judge acknowledging, as
the Lord Ordinary acknowledged during last week, that it is “with some
regret” that he administers a law of the land. To the woman, who had
been subjected to sufficient cruelty to entitle her to claim a decree of
separation, who had been beaten by her husband and refused admittance
to the house, and who stood by while her child was handed to the man who
had ill-used her, it must have been a profound consolation to hear that the
Judge made the order which deprived her of the child “with some regret.”
Translating the euphemism into extra—judicial language, we shall not be far
wrong if instead of it we read, “ The Court is, unhappily, aware that it is
doing an injustice; but, as the law stands, it is powerless to do otherwise.”
That this interpretation is not too violent a renderingr of the phrase is
shown by the further admission of the Lord Ordinary, that had he pos-
sessed the same discretionary power which had been conferred upon
Justices in England, he should have been inclined to exercise that power
by giving the child to the custody of the mother. An admission such as
this is an authoritative comment on the unsatisfactory nature of the
existing law pertaining to the custody of children, upon the injustice of
which we have already had occasion to lay stress. In the case which we
then cited, the decision of the Court was to the effect that it was un-
necessary to inquire into the truth of the wife’s allegations of cruelty
against the husband, since the law required that the child must be
committed to his custody, whether the allegations were proved or dis—
proved. In the present case, the allegations of cruelty were admitted to be
proved, and decree of separation was pronounced, the father’s claim to the
child being, of course, pronounced valid notwithstanding the treatment of
the wife. So far the case does not difl'er from a hundred others. Its
striking feature lies in the concession by the Court that, although the
mother had no legal claim to the child, yet from the point of view
of common justice she had, not only a claim, but the superior claim.
There is no need to repeat in detail the criticisms of this law which
have already been placed before the public ; it will be sufficient to indicate
that the need of amendment still exists. Judging by the somewhat
lethargic way in which men undertake reform, it would seem questionable
if there are many who realise all that is implied in the mere existence of
an unjust law. As a nation we are so accustomed to have the whole main—




tenance of morality ascribed to the inculcation of certain abstract religious
and moral maxims, that the full practical force which is exercised in
society by the legal code is continually lost sight of or underrated. Yet as
a rule our moral propagandists confine themselves to generalities ; and it is
the national legal code which, standing to the majority as a system of
applied ethics, backed by very obvious sanctions, is more or less constantly
referred to as the rule of life. With most minds it is a long Way from a
generality to a particular case; and the specialised maxims of the law,
constantly enforced by immediate and visible results, acquire an incal-
culable force for good or evil. A mistaken or unjust law is a threefold
evil ; since besides the harm to those who are victimised by it, and the
countenance it lends to further ill within its own sphere, it has an addi-
tional tendency to impair the claim of the Whole legal code to be a moral
standard for practical reference. In the present case the law admits the right
of a man who, from jealousy, spleen, or mere wanton brutality, has driven
his wife from her home, to retain possession of the children, who are not
less hers than his. The admission of an inequality in the family so gross
as to sanction conduct of this kind is a sufficiently dangerous principle for
national guidance.

It is satisfactory, however, to find that there is at least a possibility
that the present state of things will be remedied. Mr. Bryce’s “Bill to
amend the law relating to the guardianship and custody of children ” has
already been printed, and vigorous efforts are being made to promote its
success. The fundamental principle of the Bill, as given in the second and
third clauses, is that the parents of any infant shall, during the con-
tinuance of their marriage, be its joint guardians; and that on the death
of either, the guardianship shall rest with the survivor. As substituting an
equality in guardianship for the inequality surviving from the patn’a
potestas, this constitutes a distinct advance upon the present law, under
which the mother has no right of guardianship unless by appointment of
the father. The fourth clause, based upon the interminable terminology
of a prior Act, is more complex in its statement. “The parents of any
infant who is unmarried at the time of the death of the survivor of
them may, by any deed executed by them, appoint a guardian or
guardians for such infant after the death of the survivor of them; and
in default of such appointment, or in case such appointment shall not
take effect, the survivor of such parents may, by deed or will, appoint
a guardian or guardians for such infant; and in default of such last—
mentioned appointment, or in case the same shall not take effect, the
guardiancr guardians (if any) appointed by the will of the one of such
parents who shall first die shall be guardian or guardians of such
infant.” It must be admitted that this clause, while it asserts the power
of the mother to appoint a guardian, which is denied under the present
Act, is by no means satisfactory, and is even inconsistent in some respects
with the principle of joint-guardianship laid down in the se