POINTS. of separation, in so much that they may now be resorted MISCELLANEOUS to with more confidence than heretofore in most cases of discord between husband and wife. children. Before finally disposing of such deeds, however, it is Custody of fitting that I should advert to a topic of great delicacy— the custody of the children of the marriage when there are such. By law that custody belongs as of absolute and exclusive right to the husband (i); and so strong is this right, that there are cases in which the legality of a covenant by the husband to resign the care of the children to his wife, has been questioned. But those cases were attended with other circumstances which affected their decision (k). Let us suppose that the separation is occasioned by the immorality of the husband, and that the children are in danger of contamination from his example and his precepts. In such a case the Court, if appealed to, will deprive him of their custody, and will give it to the wife if deserving. Therefore, if the same end be accomplished by private arrangement, the Court will approve of it. And in fact it is much better to adjust such matters amicably than to litigate; for the Court interferes with reluctance; there being many points easily to be met by voluntary accommodation, which cannot well be provided for by an adverse order. In a recent case, (of which the circumstances were such as to make it plain that the custody of the children could not be suffered to remain with the husband,) the Lord Chancellor hesitated long before he made the order, in the hope that the parties would see the expediency of coming (i) But see Serjeant Talfourd's Act, the 2 & 3 Vict., c. 54. See also infra, p. 353, note (1). (k) Tittley v. Durrant, 7 Pr. 677; St. John v. St. John, 11 Ves. 525; Westmeath v. Westmeath, Jac. 126, POINTS. MISCELLANEOUS to some understanding. After alluding to certain letters containing expressions of seeming contrition on the part of the husband, his Lordship said— If those professions were not assumed for some collateral purpose, one cannot but think that they might have led the parties to some arrangement with regard to the children, which certainly would be most beneficial to them, and I should suppose most conducive to the comfort of both the parents. I mean some arrangement by which the residence of the children might be managed with the concurrence of both, so that they would not hold out to the world, and, what is much worse, hold out to the children, that the father and mother were either of them persons of such a description as not to be fit to be intrusted with the care and custody of their children. Nothing can be more injurious to children than their being brought up with a bad opinion of either one or other of their parents. It is most important, as far as is consistent with the state of circumstances that exist, that the faults which may affect the character of either of their parents should be concealed from the children; and that their education should be so conceived, and their residence so arranged, that they should be brought up with affectionate regard for the character and person of both. That cannot be if I make an adverse order upon the ground that one or other of the parties is so much in fault that I am under the necessity of putting the children under the care of one, to the exclusion of the other. I hope that there was some sincerity in what those letters profess. At least it is worth the chance; because, although I cannot suggest the probability at present of the wife returning to live with her husband, yet I do think it is very possible that an arrangement may be made with regard to the care and custody of the children, regulated by their age, which may give both parents a fair intercourse with them, and reserve to the children the chance of being brought up with a good opinion of both. It is not my intention, therefore, to take this case further into consideration until I have given the parties an opportunity of themselves reflecting upon the position in which they stand; and of giving their friends an opportunity of offering their advice, and of considering upon some plan of arrangement. The question is, whether it would not be more beneficial to the parties to make an arrangement by consent, than to call upon me to make one by compulsion. And I should think that those concerned in this unfortunate contest will deem it to be their duty to throw aside all idea of triumph on one side or the other, and to see if they cannot co-operate so as to effect that which is for the common good of their respective clients. But, in order to give the parties an opportunity of considering the position in which they stand, I must say something with regard to the position of the children under the late Act of Parliament (7). No case has been brought before me under that Act, but there have been cases brought forward elsewhere. And I see that a construction has been put upon that Act which I am quite sure it cannot bear. And that motives are attributed to the passing of that Act which I know for certain never operated on the mind of anybody who had anything to do with the promotion of it, and which cannot be suggested as arising from the construction of the Act. The object of the Act, its real motive, and that which I think appears upon the face of it, was to protect mothers from the tyranny of those husbands who ill-use them. Unfortunately, as the law stood before, however much injured a wife might have been, she was precluded from seeking justice against her husband by the terror of that power which the law gave to her husband of taking her children away from her. That was felt to be so great a hardship that Parliament thought she ought to have the protection of the law, with respect to her children, up to a certain age, and that she should be left at liberty to assert her rights as a wife, without the risk of any injury being done to her feelings as a mother. That was the object with which the Act was introduced, and that is the construction to be put upon it. It gives the Court the power of interfering when the maternal feelings are tortured for the purpose of obtaining anything like an unjust advantage over the mother. That is precisely the case in which the Court would be called upon, and ought to interfere (m). It would appear that the Lord Chancellor's advice was (1) Serjeant Talfourd's Act; the 2 & 3 Vict. c. 54, "An Act to amend the Law relating to the Custody of Infants," whereby the Equity Judges may make orders on petition for access of mothers to their infant children; and, if such children be under seven, for delivery of them to their mothers until they attain that age. But no mother against whom adultery has been established, is entitled to the benefit of the Act. (m) These observations were delivered by Lord Chancellor Cottenham in the case of Ward v. Ward, (not yet reported by Mr. Phillips, but which will, I understand, appear in his second volume.) They were delivered on the 18th March, 1848, in his Lordship's private room, and the above report is taken from the notes of the shorthand writer, Mr. Tolcher. MISCELLANEOUS POINTS. POINTS. MISCELLANEOUS not acted upon. And it consequently became necessary for his Lordship to make an adverse order; the effect of which was to deprive the husband of the children, and to place them exclusively under the care of the wife. The observations above set forth are instructive to the framer of a deed of separation, where the custody of children is to be provided for. And the Lord Chancellor's reasoning seems alike applicable whether it be the husband or the wife who is to blame. The children are "to be brought up with affectionate regard for the character and person of both parents." This is the principle. It is wrong, therefore, by any private arrangement to exclude even an erring parent from all intercourse with the children of the marriage. Cases, however, of great profligacy, where intercourse must necessarily contaminate, can hardly be regarded as coming within this general rule. |