80

DESERTION OF WIFE BY HUSBAND.

much difference of opinion,* for the heartless cases of desertion by a husband of his wife, and then returning only to rob her of her miserable earnings; and this has been made general, so as to include cases where the deserted wife has, by her literary talents for example, acquired considerable property during the desertion. This protection covers all her earnings and property acquired since the desertion, as if she were a single woman, and binds her husband and his creditors, and any person claiming under him. It is to be granted by a police magistrate, if she is resident in a metropolitan district, or, if she is resident in the country, by justices in petty sessions, or in either case by the Court of Divorce. It is required to be shown that the desertion was without reasonable cause, and that she is maintaining herself by her own industry. The order may be reviewed or may be appealed from, but if disobeyed, the wife may recover the specific property, and also double its value. Of course the husband may be prevented from removing the wife's property. Whilst the order for protection continues, the wife is to be considered as invested with the same rights, and as subject to the same liabilities, as if she had obtained a decree of judicial separation.

The applications to police magistrates for relief under the Act have been numerous; but the order has been withheld in several cases in which, if the facts are correctly given to the public, it ought, as it seems to me, to have been granted.

Finally, on this head, the action of crim. con., that disgrace to the nation, has been abolished; but, by an unpardonable mistake in legislation, this is accomplished in words only, whilst in effect-indeed in words equally plain—a similar right of action is given to the husband,

* Upon my motion the House divided on the principle of the provision : Contents, 52; Not-Contents, 44-majority, 8.

ACTION OF CRIM. CON.

81

through the instrumentality of the Court, but to be tried by a jury like the old action, in the case of a petition for either a dissolution or a judicial separation, or even limited to the object of damages only; and the wife is also to be served with the petition, unless the Court order otherwise-thus really increasing the evil; for a divorce formerly could not in general be obtained without damages had been recovered, and that circumstance was always relied upon as an excuse for the husband's demand of a pecuniary compensation, whereas now he may go for damages, although he profess an intention not to ask for a divorce. The damages, however, are not to belong to the husband, but the Court is to direct in what manner they are to be applied, and to direct that the whole or any part shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife; and the adulterer may be fixed with the costs of the proceedings in the Court of Divorce. All were ultimately agreed that the old action should be discontinued, and none proposed that the adulterer should not pay in the shape of damages, but many wished no part beyond the expenses to go to the husband, but rather that it should fall into the Consolidated Fund. The measure, as it stands, was not passed without a severe struggle. It is not carefully framed, and is wholly inconsistent with the general enactment abolishing the action.* A man may now recover damages for his wife's infidelity without seeking for a divorce, but may continue to live with her upon the

* Section 59 simply enacts, that in future no action shall be maintainable in England for crim. con. whilst the previous s. 33 continues the right of action. As I originally moved the clause to get rid of the action, it contained what I deemed the necessary provisions in lieu of the action. The whole was strenuously opposed by the Government, but when the House was about to divide, the first part of the clause (now s. 59) was agreed to, and the other prior section was subsequently introduced by the Government. This explains the frame of the Act.

F

82

AGREEMENT FOR SEPARATION.

damages recovered from her paramour, which may be settled upon her or upon the children! Even where a divorce is obtained, the damages may be settled upon the children of the marriage, and the father may live with his children, whilst they are maintained and educated with the price of their mother's dishonour! It may well be doubted whether this is an improvement of the old law, and whether we have freed ourselves from the reproach of foreign nations-that we consider a money payment as the proper consolation to a husband whose wife has proved unfaithful to him.

You are aware that, independently of the Act, husband and wife may, by mutual agreement, live separate and apart under a deed with formal stipulations as to maintenance, the contracting of debt by the wife, against which some relative usually covenants to indemnify the husband, and other usual stipulations; but such a deed does not in law dissolve the marriage, and the restitution of marital rights would be enforced if sought for. The wife's adultery would not release her husband from an absolute covenant in such a deed to pay her an annuity during her life. Subsequent cohabitation in general would avoid a deed of separation unless it contained a stipulation to the contrary, or the husband promised to continue the payment upon the wife's going back to him at his request. Our law forbids any provision to be made, either before or after the marriage, for a future separation between husband and wife. Even if an immediate separation be provided for, yet, where that is a mere colour, and no separation then takes place, the deed will be void. It was attempted in the late Act to make a separation by consent of husband and wife as operative as a divorce a mensâ et thoro, or what is now termed a judicial separation; but the attempt did not succeed.

MOTHER'S RIGHT TO ACCESS, ETC. TO CHILDREN. 83

LETTER XIII.

You have already seen that the Court of Divorce has power over the children of the marriage where a judicial separation or a divorce takes place. But this is not the only instance in which a father's power over his children is interfered with. A remedy is afforded by Statute* to mothers where their husbands deny them access to their infant children, or withhold from them the care of those under seven years of age. The authority is given to the Court of Chancery, who, on the mother's petition, may, in the father's lifetime or after his decease as against the guardian appointed by him, make such order as may seem fit for the access of the mother to such infants at such times, and subject to such regulations as may be deemed just and convenient; and if such infants are under seven years of age, may order them to be delivered to and to remain in the custody of the mother until attaining such age, subject to such regulations as shall be deemed convenient and just; but these provisions do not extend to a mother against whom adultery has been established. As Lord Cottenham observed, the object of the Act was to protect mothers from the tyranny of husbands who ill-use them; it gives the Court the power of interfering when the maternal feelings are tortured [by the threat to take their children from them or to deny them access to them], for the purpose of obtaining anything like an unfair advantage over the mother.

* 2 & 3 Vict., c. 54.

84

FATHER'S POWER AS GUARDIAN.

Besides these statutory powers, the Court of Chancery, in exercise of its own jurisdiction, will take the custody of his children from a father on the ground of his impiety and irreligion, or of his profligacy, adultery, and profaneness, it being both the right and duty of the Court to remove the children from the contamination to which they would be exposed from such examples; but there must be sufficient property to educate and maintain them, either belonging to them, or found by their friends for them, as the father cannot be compelled to pay for their maintenance or education.

Subject to these powers, the father alone has a right to the custody of his children, and he can by deed or will appoint a guardian to them; but although from the time of Charles II.* until a recent period an infant might have appointed a guardian to his children by deed or will, yet it seems that he can no longer do so by will.+ The adult father's will must be executed like all other wills, which will be the subject of a future Letter. The mother cannot appoint a guardian, although she survives her husband. Where it is necessary after the father's death, the Court of Chancery will appoint a guardian; and the Court will, if necessary, although reluctantly, interfere with the testamentary guardian appointed by the father, but the mother as such has no right to interfere with a testamentary guardian. Generally speaking, the child should be brought up in the religious faith of the father, but he cannot, strictly speaking, by his will regulate the faith in which his child is to be brought up; the Court nevertheless will pay great attention to the expression of his wishes, and he can exercise that power indirectly by appointing a guardian of the faith * 12 Charles II., c. 24.

+ 7 Will. IV., and 1 Vict., c. 26.