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 THE 
 
 SEPARATION 
 
 OF 
 
 MOTHER AND CHILD 
 
 BY THE LAW 
 
 OP 
 
 « CUSTODY OF INFANTS," 
 
 CONSIDERED. 
 
 ■7
 
 THE 
 
 SEPARATION 
 
 OP 
 
 MOTHER AND CHILD 
 
 BY THE LAW 
 
 OP 
 
 ' CUSTODY OF INFANTS, 
 
 CONSIDERED. 
 
 LONDON: 
 
 ROAKE AND VARTY, 31, STRAND. 
 
 1838.
 
 THE LAW 
 
 RELATING TO 
 
 THE CUSTODY OF INFANTS. 
 
 The law which regulates the Custody of In- 
 fant Children, being now under the consideration 
 of the legislature, it is very desirable that the 
 attention of the public and of Members of Par- 
 liament in particular, should be drawn tmvards a 
 subjiect, upon which so much misconception and 
 ignorance prevails. 
 
 It is a common error to suppose that every 
 mother has a right to the custody of her child 
 till it attain the age of seven years. By a curious 
 anomaly in law, the mother of a bastard child 
 HAS this right, while the mothers of legitimate 
 children are excluded from it, — the law as regards 
 children born in wedlock being as follows. 
 
 The custody of legitimate children, is held to 
 be the right of the Father /7-om the hour of their 
 birth : to the utter exclusion of the Mother, whose 
 separate claim has no legal existence, and is not 
 recognised by the Courts. No circumstance can 
 
 B
 
 2 
 
 modify or alter this admitted right of the father : 
 though he should be living in open adultery, and 
 his wife be legally separated from him on that 
 account. He is responsible to no one for his 
 motives, should he desire entirely to exclude his 
 wife from all access to her children ; nor is he 
 accountable for the disposal of the child ; that 
 is, the law supposing the nominal custody to be 
 with him, does not oblige him to make it a bona 
 fide custody by a residence of the child under 
 his roof and protection, but holds * the custody 
 of the father' to mean, in an extended sense, the 
 custody of whatever stranger the father may 
 think fit to appoint in lieu of the mother ; and 
 those strangers can exert his delegated authority 
 to exclude the mother from access to her children ; 
 without any legal remedy being possible on her 
 part, by appeal to the Courts or otherwise ; the 
 construction of the law being, that they have 
 no 'power to interfere with the exercise of the 
 father's right. 
 
 Should it so happen that at the time of sepa- 
 ration, or afterwards, the children being in the 
 mother's possession, she should refuse to deliver 
 them up, the father's right extends to forcibly 
 seizing them ; even should they he infants at the 
 breast. Or he may obtain, on application, a writ 
 of habeas corpus, ordering the mother to produce 
 the child in Court, to be delivered over to him ; 
 and should this order be disobeyed, he can cause 
 
 Unjc'i
 
 3 
 
 a writ of attachment to issue against her ; or, in 
 other words, cause her to be imprisoned for con- 
 tempt of court. The fact of the wife being 
 innocent and the husband guilty, or of the sepa- 
 ration being an unwilling one on her part, does 
 not alter his claim : the law has no power to 
 order that a woman shall even have occasional 
 access to her children, though she could prove 
 that she was driven by violence from her hus- 
 band's house, and that he had deserted her for a 
 mistress. The Father's right is absolute and 
 paramount, and can no more be affected by the 
 mother's claim, than if she had no existence. 
 
 The result of this tacit admission by law, of 
 an individual right so entirely despotic, (the 
 assertion of which can only be called for in 
 seasons of family disunion and bitterness of feel- 
 ing), is exactly what might have been expected. 
 Instances have arisen from time to time in which 
 the power has been grossly and savagely abused. 
 It has been made the means of persecution, and 
 the instrument of vengeance : it has been exerted 
 to compel a disposition of property in favour of 
 the husband, where the wife has possessed an 
 independent fortune : it has been put into force 
 by an adulterous husband to terrify his wife from 
 proceeding in the Ecclesiastical Courts against 
 him : in short, there is scarcely any degree of 
 cruelty which has not been practised under colour 
 of its protection.
 
 4 
 
 Wo have given in an appendix, to which wc 
 refer our readers, a brief report of the cases 
 quoted by Serjeant Talfourd as shewing the ne- 
 cessity of such a measure as that which he has 
 lately proposed ; and we apprehend, that no 
 right-minded man can read through the examples 
 there given, without admitting the necessity of 
 some such alteration in the law, as shall afford a 
 reasonable protection to the weak and helpless of 
 the other sex, under circumstances of great grie- 
 vance and oppression. 
 
 In one of those cases, a Frenchman married to 
 an Englishwoman, and wishing to compel a dis- 
 position of her property, entered by force, the 
 house where she had fled for refuge, dragged the 
 child (w^hich she was in the act of nursing) from 
 the very breast ; and took it away, almost naked, 
 in an open carriage, in inclement weather. The 
 mother appealed to the Courts : the Courts de- 
 cided they had no power to interfere. In another 
 case the husband being in Horsemonger jail, gave 
 the child into the care of a woman with whom he 
 cohabited : his wife appealed to the Courts 
 against the outrage : the Courts decided that 
 they had no power to interfere. In a third in- 
 stance the mother persuaded the schoolmistress 
 who had charge of her child, to give it up to her, 
 the child being sick of a disease of which two of 
 her children had already died. The husband 
 obtained a writ of habeas corpus, and the sick
 
 5 
 
 diild was taken from its mother. In the last 
 case decided under the present construction of 
 *the Father's right,' the wife having discovered 
 that her husband w^as living with a woman of 
 the town whom he permitted to assume his name, 
 and passed off as his wife, withdrew from his 
 house to that of her mother. The husband 
 refused to part from his mistress, but claimed 
 his infant female children ; and the claim was 
 admitted by the Courts ; (though baffled by the 
 mother, who fled to France taking her children 
 with her.) 
 
 Numerous other cases exist, in which the 
 women have attempted to establish a claim to 
 the custody of their children, but the result has 
 invariably been against the mother, except in one 
 or two rare instances, where property was af- 
 fected ; for the sake of the security of which 
 property, and not from any admission of the 
 mother's natural claim, the decisions were made 
 against the father. 
 
 In cases where property was not affected, no 
 instance has occurred, in which the bad character 
 of the father, or the cause of separation, has 
 operated on the decisions of the Courts of Law ; 
 and though in almost all the cases reported, both 
 counsel and judge admit the severity and injustice 
 of the law as affecting the mother, it does not 
 appear that any attempt has ever been made to 
 revise or alter it.
 
 6 
 
 We are told that the difficulty is, to meet every 
 individual instance of alleged hardship, and to 
 enter into private complaints and family disputes, 
 as must necessarily be the case if the Court is 
 called upon to decide the right of access of the 
 mother, against the inclination of the father. 
 But it is notorious that both the Court of King's 
 Bench and the Court of Chancery do already 
 assume to themselves the power of meeting and 
 deciding on individual cases. They will inter- 
 fere, as aforesaid, for the security of property, 
 and on account of religious, or even political 
 opinions ; and have established a rule that at a 
 specified age, namely, 14^ years, a child cannot be 
 forced back to the custody of its father, if the 
 child himself be unwilling to return* 
 
 There was a direct interference in the case of 
 Wellesley ; in the case of Shelley ; and others of 
 less note. Nothing is now proposed which mili- 
 tates more against the father's right, than the 
 power already vested in the Court of Chancery ; 
 nay, nor so much ; for that Court has assumed to 
 itself a RIGHT OF decision how far irreliofion 
 and immorality disqualify a man from properly 
 educating his children, or having the custody of 
 them ; and though that right has been most 
 sparingly exercised, yet its bare assumption and 
 existence is surely a greater interference with 
 parental power, than if the Court were to assume 
 
 * See Appendix, page 72.
 
 7 
 
 a rioht to decide on the mother's claim of access 
 to children ; her access in no loay barring the 
 father s power to bring them up as he pleases. 
 
 Nor is anything proposed which interferes more 
 directly with the general feature of all the laws 
 respecting women, (namely, the non-admission of 
 their separate legal existence when married,) than 
 is the case in other instances of protection of their 
 social rights, such as the power vested in the law 
 to guard their property ; to grant a separation a 
 mensci et thoro for cruelty or other causes ; in 
 which the woman's separate existence is acknow- 
 ledged, and the husband' s power is made subordi- 
 nate to the law. This is a parallel case ; it is a 
 case of simple protection of the liberty and rights 
 of the subject, and not of any encroachment on 
 the authority of a father as the master of the 
 house and the head of his family. 
 
 But, indeed, the very fact of the claims of Mrs. 
 Greenhill and others having been argued in 
 Court, proves at once both the power vested in 
 the Court to meet and weigh the circumstances of 
 individual cases, and the assumption of a doubt as 
 to which parent the custody of the children would 
 eventually be awarded. It can neither be said 
 that a new principle of litigation is sought to be 
 established ; nor a new principle of interference 
 with the common law right of the father. The 
 only new principle sought to be established is, 
 that whereas hitherto the Courts have refused to
 
 8 
 
 consider the suffering and wrong done in very many 
 instances to the mother, (on the plea that they had 
 no option of decision on those grounds, though 
 they had an option of decision on others ;) some 
 recognition and acknowledgment may now be 
 made of the mother's separate existence, and 
 right to protection. 
 
 On what principle of natural justice the law is 
 founded, which in cases of separation between 
 husband and wife, throws the whole power of 
 limiting the access of a woman to her children 
 into the hands of her husband, it is difficult to 
 say. A man should hardly be allowed to be ac- 
 cuser and judge in his own case, and yet such is 
 the anomalous position created by the law. 
 Whatever be the cause of separation, whether in- 
 compatibility of temper, or imputation of graver 
 offence, the feelings on both sides must be very 
 bitter, bitter almost to desperation, before the par- 
 ties can consent to publish their quarrel to the 
 world, and break through ties voluntarily formed, 
 and cemented by holy vows. The husband who 
 contemplates such a separation, is certainly angry, 
 probably mortified, and in nine cases out of ten, 
 eager to avenge his real or fancied injuries. To 
 this angry man, to this mortified man, the law 
 awards that which can rarely be entrusted to any 
 human being, even in the calmest hours of life, 
 namely, despotic pgwer ! Surely it requires no 
 eloquence to move, no argument to convince, in a
 
 9 
 
 case like this. There stands the one man in the 
 world who is least likely to be able to judge his 
 wife with the smallest particle of fairness or tem- 
 perate feeling, and he is the man to whom the 
 real judges of the land yield their right of pro- 
 tection, their intelligence of decision, — their mer- 
 ciful consideration of individual wrong,— and 
 their consistency in securing, under all circum- 
 stances, PUBLIC JUSTICE. To him it is permitted 
 to make the power of their Courts a mockery, 
 and (in homely but expressive terms) to " take 
 the law into his own hands J'^ 
 
 Doubtless the claim of a father is sacred and 
 indisputable, but when the mother's claim clashes 
 with it, surely something should be accorded to 
 her. There are other laws besides those inade by 
 men — what says the holier law, the law of nature ? 
 
 Does nature say that the woman, who endures 
 for nearly a year a tedious suffering, ending in an 
 agony which perils her life, has no claim to the 
 children she bears ? Does nature say that the 
 woman, who after that year of suffering is over, 
 provides from her own bosom the nourishment 
 which preserves the very existence of her offspring, 
 has no claim to the children she has nursed ? 
 Does nature say that the woman who has watched 
 patiently through the very many feverish and 
 anxious nights which occur even in the healthiest 
 infancy, has no claim to the children she has 
 tended ? And that the whole and sole claim rests
 
 10 
 
 with him, who has slept while she watched ; 
 whose knowledtje of lier sufferintjs is confined to 
 the intellio'oncc that he is a father ; and whose 
 love is at best hut a reflected shadow of that which 
 fills her heart ? No ! the voice of nature cries 
 out against the inhuman cruelty of such a separa- 
 tion. 
 
 It has heen asserted that the instances are very 
 rare in which a man will utterly deprive a mother 
 of her children, and that it is irrational to expect 
 the law to be altered to meet these few instances, 
 considering the difficulties attending such an alter- 
 ation. Without arguing at present why it should 
 be more difficult to make the rule in the case of 
 legitimate children, than in the case of bastards, 
 (whose mothers receive a direct protection from 
 the Courts, and can enforce the return of children 
 taken from them by the father ; vide appendix 
 page 39)— it may reasonably be asked, are not all 
 instances of social wrong comparatively few, in 
 great social bodies ? and is it not a strange and 
 contradictory argument, to urge against the es- 
 tablishment of a legal recognition of the mother's 
 claim, that the majority of men have already agreed 
 to act as if it were established^ by permitting 
 residence or access as the circumstances of the 
 individual case may seem to w arrant. It w ill be 
 difficult to find a single instance of a just, ho- 
 nourable, and HUMANE man, desirous of taking 
 infant children from a mother not guilty of sin^
 
 11 
 
 although that mother should be unfortunately 
 separated from him on other accounts. On the 
 contrary, examples might be given where such 
 men have * leaned to mercy's side,' even when 
 sternness would have appeared justifiable. The 
 power, therefore, given by the law, rests with 
 men who, like De Manneville and Smith, (vide 
 appendix), use it as an instrument of torture, to 
 force an unwilling gift of property ; or those who, 
 like Mr. Ball and others, appear to exert it from 
 wanton cruelty, or from motives of vengeance and 
 hatred to the woman. 
 
 The number of instances, however, in which 
 this irresponsible power has been exerted, must 
 not be reckoned by the number of cases which 
 appear from time to time in the legal reports. 
 
 Hundreds of cases are decided by judges in 
 chambers, the particulars of which are never 
 known to the public. Cases in which the want 
 of means or the want of courage, have prevented 
 the desperate and unsuccessful struggle carried 
 on in the higher Courts by Mrs. Greenhill and 
 others : cases in which the career of the man has 
 been one of unquestioned tyranny ; the fate of 
 the woman, obscure sufi*ering, and unrecorded 
 tears. 
 
 Most undoubtedly, there arc many men whose 
 sense of justice, affection for their children, and 
 perhaps some lingering tenderness for the woman 
 herself, would prompt to a merciful consideration
 
 IS 
 
 of her feelings ; but there are others whose hearts 
 are harder, who sacrifice all to the indulgence of 
 an unmanly vengeance, and who, with natures not 
 fine enough for mercy, do (to use the expressive 
 language of Scripture) ^^ seethe the kid in its mo- 
 therms milk;'*^ punish the child in a spirit of retalia- 
 tion upon the woman, and involve the innocent and 
 helpless in the suffering Jbonsequent upon disputes 
 which they are not even able to understand. 
 
 It is a rash thing of any man to assert that it 
 is not an injury done to his children thus to de- 
 prive them of the careful affection w'hich should 
 have guarded their early years. He who imagines 
 he can find a substitute for maternal affection, has 
 never felt its full value ; he who can consent, from 
 anger and caprice, to wean his children from their 
 mother, has never truly loved and respected his 
 owTi. How many worthy and celebrated men 
 have asserted that they owed all they w^ere, to that 
 earliest an.d holiest guidance ! How many men 
 who have passed a dissipated and profligate youth, 
 have declared that the first impressions given in 
 childhood returned to them afterwards, and that 
 the precepts which cheered their declining lives, 
 were those which a mother's voice repeated to 
 them in infancy ! 
 
 It is an injury : one of which he cannot fore- 
 see the nature or extent. There is no surer 
 receipt for destroying the disposition of any 
 human being than to place him in a false and
 
 13 
 
 unnatural position ; and what can be more false 
 and unnatural than the position of children, who, 
 with two parents living, are given over to hired 
 care, or the custody of strangers, knowing that 
 they HAVE a mother^ whom they are neither 
 taught to love, nor permitted to see ? They 
 may, I grant, be as well fed, as strictly watched, 
 as diligently instructed ; but when all is done 
 which can be done, there will still be something- 
 wanting : the halo of a mother's love will be 
 missed from the barren years of their infancy ; 
 they who were little loved, may be supposed to 
 love little in return •, that anomalous infancy may 
 recoil on the father himself ; and the children, 
 of whom he kept forcible possession in his youth, 
 may turn from him in his old age. » 
 
 And here let it be once more remarked, that 
 the custody awarded by the law is seldom, if 
 ever, a bona fide custody on the part of the 
 father. The daily tenderness, the watchful care, 
 the thousand offices of love, which infancy re- 
 quires, cannot be supplied by any father, however 
 vigilant or affectionate. The occupations of his 
 life would alone prevent his fulfilling the petty 
 cares which surround the cradle. He is compelled 
 to find other care for them, to replace that of 
 which he has deprived them; he is compelled 
 either to leave them to hired female servants, or 
 to deliver them over to some female relative 
 And it is in this very point that Nature speaks
 
 14 
 
 for the mother. It pronounces the protection of 
 the father insufficient, — it pronounces the es- 
 trangement from the mother dangerous and un- 
 natural and such as must be immediately sup- 
 plied by female guidance of some sort or other. 
 Does not this, of itself, demonstrate the harsh 
 and unjust tenor of the law? Why should the 
 father, whose utmost care is insufficient for the 
 care of his infant children, have power to divide 
 them from the mother, whose care is sufficient ? 
 The question evidently is not whether they shall 
 be taken from the mother to be given to the 
 father ; the question is, whether they shall be 
 taken from the mother to be given to a stranger ; 
 and whether the law ought not to interfere, in 
 cases where this has been done (^as it is proved to 
 have been done in many instances) needlessly, wan- 
 tonly, and from base and detestable motives ; to 
 protect alike the mother and child from a tyranny 
 which injures both. 
 
 When the mother of a young family elopes, 
 and voluntarily forsakes the little beings who de- 
 pend on her tenderness and care, what is the 
 loud sentence of society ? Is not such a mother 
 (^even though the father remain in charge of his 
 offspring) stigmatised as a monster ? Does not 
 the forlorn situation of the children excite com- 
 passion in every heart ? Do not the words 
 "motherless" and ** deserted," imply a foul 
 wrong done to those infants, and an uiuiatural
 
 15 
 
 callousness of heart in the woman who has so 
 ahandoned her trust ? Most assuredly they do ; 
 and why ? Because a mother s love is believed to he 
 the strongest tie of nature, and her care to be 
 
 ESSENTIAL TO THE WELL-BEING OF HER INFANT 
 
 CHILDREN. In the beautiful imaginary appeal 
 to the seducer, spoken by Curran, when arguing 
 a famous case ; * he calls the abandonment of the 
 
 child " THAT MOST DEPLORARLE OF HUMAN CON- 
 DITIONS, the orphanage which springs not from the 
 grave, which falls not from the hand of Providence 
 or the stroke of death, but comes before its time ; an- 
 ticipated and inflicted bj/ the REMORSELESS CRUELTY 
 of parental guilt.'' Here is admitted, to the fullest 
 extent, the evil done to the infant, and the suffer- 
 ing which such a parting ought to inflict. on the 
 mother ; it ought, according to our ideas of human 
 feeling, to be impossible that a woman should 
 volu7itarily forego this claim. Why then does the 
 reverse of the case make the injury done, seem so 
 light, — the suffering endured, so little to be 
 regarded? If the children are forlorn and 
 injured by the separation, they are not less forlorn 
 or less injured, because that separation was not a 
 willing one ; if it be indeed so unnatural in the 
 mother to leave them, is it natural in the father to 
 tear them from her ? 
 
 But even admitting that as far as the children 
 are concerned, no injury or suffering need result 
 
 * Massey r. Heatlfort.
 
 16 
 
 from the exertion of ** the father's right ;*' admit- 
 ting that some near relative undertakes the 
 charge, and fulfils it with tenderness and truth ; 
 — still there remains the suffering inflicted on the 
 mother. 
 
 There are few men who would stand tamely by 
 and see a woman struck, even by her husband ; 
 there are few men, who, even in a common street 
 row, would not interfere to protect the wretched 
 drunken creature whose coarse abuse has pro- 
 voked the blows of her brutal partner ; yet what 
 degree of bodily agony, or bodily fear, can com- 
 pare with the inch-by-inch torture of this unna- 
 tural separation ? It requires but little imagina- 
 tion to conceive the effect on a woman's heart, of 
 suddenly snapping the tenderest of ties, and de- 
 priving her of the sweetest and most continual of 
 occupations ; or to picture to oneself how dreary 
 must be the silence of her day ! how bitter the 
 perpetual recurrence of the hour devoted for 
 years to her good-night visit to her nursery ! how 
 wearing the nights of fitful sleep, disturbed by the 
 indistinct, yet heavy consciousness of sorrow ! 
 how maddening those bursts of intense longing to 
 be with her children — to know how they are 
 treated — to guard, to guide — to be in short 
 what a mother's love is, an Inferior Promdence 
 over those helpless creatures ! And this is a 
 grief which does not wear out, or go by, like 
 other sorrows — it is the torture of a life- time :
 
 17 
 
 Why should any man have power because he is 
 offended, to inflict the torture of a lifetime ? It 
 does not necessarily follow because this woman 
 has quarrelled with him that she must be in the 
 wTong ; on the contrary, it may be obvious to the 
 whole world that she is not in the wrong, the 
 wrong may, as in the cases given in the appen- 
 dix, be notoriously and confessedly on his side, 
 and even the judge who awards the custody of 
 the child to the father may admit that she suffers 
 most unjustly. Why should she suffer unjustly ? 
 Because it is so written in the law ? There is a 
 story of Shylock, and the pound of flesh nearest 
 the heart of his victim, which might bear some 
 analogy to cases like these. 
 
 Surely, surely this should not be! *A man 
 does not purchase a wife as he would buy a fine 
 blood-mare, or a hound, to continue a race of 
 animals and then be got rid of, her ofi^spring re- 
 maining his undoubted and undisputed property. 
 He chooses a companion ; a thinking, acting, 
 reflecting being ; one, who, if a mother, is the 
 mother of immortal souls, and accountable to God 
 for the trust. That man may afterwards repent 
 the choice he made and become discontented with 
 it, but his discontent does not transform the 
 woman into a cipher or a slave : it does not 
 reverse and alter every right and purpose of her 
 existence : it does not, or rather it ought not, to 
 change her from a wife and mother into a thing 
 
 c
 
 18 
 
 as helpless, useless, and blighted, as a scathed 
 tree. She can make no other choice ; she can 
 form no other tie ; it is a sin if she even allow 
 her secret heart to wander to another object ; 
 SHE belono^s (parted though she be) to Mm and 
 to his children: — Do neither then belong to her? 
 And this brings us to the consideration of 
 another point ; namely, whether there is not 
 something in this law calculated to injure the 
 female character, and thereby to militate against 
 the best interests of general society. A woman 
 is expected to perform with the utmost strictness 
 the social duties of life, and much is very justly 
 supposed to depend on the manner in which she 
 fulfils them. Now, is not that a bad law which 
 gives a right to an angry man, perhaps a vicious 
 man, to deprive her of the power of fulfilling the 
 first and most sacred duty which devolves to her 
 in her character of woman ? In the case of Skin- 
 ner, the man not only was living in adultery, but 
 he took his child and placed it under the care of the 
 woman with whom he was so living^ and the Court 
 decided that nevertheless he had *^ the father's 
 right" to retain possession of it. What must be 
 the result of thus forcibly and unjustly denying 
 the mother the natural and proper occupation of 
 her life? A woman does not die of sorrow, 
 except in rare instances ; neither does she become 
 insane, except in rare instances, where vexation 
 acts on a naturally nervous and exciteable tempe-
 
 19 
 
 rament. She exists ; with the same warm affec- 
 tions, the same desire of sympathy, the same 
 necessity for exercising those sympathies as he- 
 fore : she has no share or portion in the cares of 
 puhlic life ; everi/ occupation of her existence i^ 
 more or less dependent on the affections. What 
 then ? because a man has mercilessly taken from 
 her the legitimate objects of those affections, is 
 it certain, is it even probable, that they will never 
 again be exercised? — Is not the restlessness of 
 the human heart proverbial ? Do we not all 
 endeavour to satisfy its restlessness by clinging 
 to particular interests and particular preferences? 
 Assuredly we do, and so it will be in the case 
 of this woman in her unnatural and anomalous 
 position — a wife, but alone; — a mother, but 
 without her children. Shall it be said a man is 
 not responsible for this ? That if she seek her 
 consolation in hollow gaiety, or unlawful affec- 
 tion, he who has driven her from that narrow but 
 complete circle, where she would thankfully have 
 remained ; — he, who has made the natural exer- 
 cise of her heart's best feelings impossible, has 
 nothing to answer for? Surely he has: and 
 the law which permits this ill-exercised responsi- 
 bility holds out an incentive to sin. 
 
 Again, it is an immoral law as regards the 
 man, for men are apt to be careless of such 
 crimes as bring neither disgrace by their detec- 
 tion, nor penalty by their commission. The tone 
 
 c 2
 
 20 
 
 of society is already lax enough, without holding 
 out this direct assurance that the lawgivers and 
 authorities of the realm do not consider a man 
 the worse father of a family because he is an 
 adulterer. Many a man might be checked and 
 restrained from the indulgence of a vicious incli- 
 nation by the thought that such indulgence w^ould 
 break up his domestic circle, and while it gave 
 his wife a right to withdraw from him, gave him 
 no power to torture her into acquiescence or 
 submission, by detaining her children. 
 
 It is also a law involving an evident 'incon- 
 sistency, if we consider it relatively to a w Oman's 
 social position in other respects. 
 
 In the matter of marriage, a girl even of fifteen 
 or sixteen is held to be a capable and responsible 
 being, able to make a choice, to decide on her 
 future destiny, and to bind herself by a voluntary 
 oath to the husband she has chosen. Does she 
 cease to be a capable and responsible being after 
 her marriage, that in the matter of Maternal 
 Right she is no more considered than a stock or 
 a stone ? Is she, whose responsibility in early 
 youth was so gi'eat that the rashness of an hour 
 could bind her for life,' transformed in her ma- 
 turer years into an automaton to be moved only 
 at the will of others ? Is she, who was so all- 
 important as a bride, nothing as a mother ? One 
 would imagine the very reverse should be the case, 
 unless mdeed the laws be made for men alone.
 
 21 
 
 and the sole reason of such contradictory reijula- 
 tions be, that it would interfere with the passions 
 of men that these young girls should not have the 
 power to give themselves away while infants by 
 the law ; — it would interfere with the passions of 
 men that these young girls in after years should 
 have a distinct and separate claim to those who 
 are infants in very fact and truth. 
 
 It has been urged by those who would defend 
 the despotic right of the father, that were this 
 right modified, a facility and encouragement 
 w^ould be afforded to separations between hus- 
 band and wife ; since the W' oman w^ould no longer 
 be withheld from leaving home by the fear of 
 being parted from her children. This is surely a 
 very specious argument ! It cannot be supposed 
 that a woman who enjoyed even a comparative, 
 chequered, and uncertain happiness at home, 
 w^ould change her social position as a respected 
 wife ; her daily and hourly communion with her 
 children ; for the chance of obtaining a legal 
 order occasionalhj tovisit her children in the custody 
 of others ! — It is monstrous to represent that 
 as a temptation, which can at best be but a 
 slight mitigation of misery. What a woman can 
 bear, will still be borne, for the sake of remain- 
 ing under the same roof with her little ones ; 
 while that which is wwbearable will no longer be 
 inflicted with impunity by a reckless and bad 
 husband, armed with the consciousness that he
 
 S2 
 
 holds in terror ein over his wife, the alternative 
 of patient endurance, or the loss of her children. 
 
 Another argument is this : — that a man may 
 feel his wife to be a very unfit person to educate 
 his children, and may even feel convinced that 
 she has been ffuiltv of sin, without beinfj able 
 legally to prove it, or even to make it evident to 
 the world. 
 
 It is rare that if crime i^ committed y it cannot 
 also be proved. But admitting, for the sake of 
 argument, that such might be the case in isolated 
 instances, even then, in default of proof, the 
 woman should not be barred from her in- 
 fant child. The misconduct of the husband is 
 reckoned as nothing j though glaring and offen- 
 sive, his adultery bars no claim, unless it can be 
 proved that the child is brought into contact wdth 
 THE MISTRESS SO as to be corrupted. The cor- 
 ruption of the child is then the only point consi- 
 dered by the law. Now that supposed lightness 
 of behaviour in a woman, which cannot be proved, 
 which is not evident to her family, or the world, 
 and which is merely asserted by her husband, 
 who admits that he cannot make it evident, is 
 not very likely to corrupt, or be obvious to, a 
 child; and if it be persisted that even at that 
 tender age, a want of principle can be instilled 
 by example, or caused by want of holy precept, 
 we will grant also that, for the sake of argument; 
 and having granted it, ask, why, in God's name,
 
 23 
 
 if the child can be corrupted by the existence of the 
 principles which cause the misconduct of the mo- 
 ther (though the misconduct itself be not evi- 
 dent), is it safe from the influence of the prin- 
 ciples of the FATHER merely because it does not 
 see or consort with his mistress ? The mistress 
 may not be so bad as he ; she may have broken 
 no marriage tie to live v^^ith him, why is hers the 
 only corrupting power, when his is an equal or 
 greater dereliction from moral principle ? 
 
 On various occasions both Counsel and Judge 
 have expressed in the clearest manner their opi- 
 nion upon the harsh and unnatural effect of the 
 law, and it has been constantly urged in Court, 
 that if the mothers of bastard infants are pro- 
 tected from this misery, a fortiori the m(?thers of 
 LEGITIMATE children should also be protected. 
 Now what is there so immutable in this " com- 
 mon law right of the father,*' that it shouldybrce 
 men to decide against their feelings of naturat 
 justice'^ Is the abuse to Qxi^i for ever, because it 
 was not at first perceived ? or are we waiting till 
 some frightful catastrophe — some violence of a 
 woman driven to desperation, shall afford an ex- 
 cuse for discussing the nature of the decisions 
 which are well calculated to cause such results ? 
 
 If the cruelty, hardship, aye, and injustice of 
 the pain inflicted, be acknowledged even by those 
 whose province it is to administer the law ; if a 
 Judge and Vicc-Chancellor in giving his decision,
 
 ^4 
 
 observed, tliat he would gladly adopt any prece- 
 dent of authority for mercy, because in a moral 
 point of view he knew of no act more harsh and 
 cruel than depriving the mother of proper inter- 
 course with her child : — if it is only the law 
 which stands against the admission of the mo- 
 ther's natural claim— what hinders that the law 
 be altered ? 
 
 Surely in this country, where hatred of all op- 
 pression is made a national boast, where if a 
 master were to strike his footboy, an action 
 w^ould lie for assault and damao^es — where even 
 offensive and violent language subjects a man to a 
 penalty ; in this country, and at this time, w hen 
 all liberal opinions are encouraged and fostered, 
 it is a strange and crying shame, that the only 
 despotic right an Englishman possesses is to 
 wTong the mother of his children ! That com- 
 pelled as he is by the equal and glorious laws of 
 his nation, to govern even the words in which his 
 amjer is expressed to his fellow^ men and subjects, 
 he may act what cruelty he pleases by his own 
 fire-side, and he who dares not in the open street 
 lay a finger on the meanest man there, may stand 
 on his own hearth and tear from the very breast 
 of the nursing mother, the little unconscious 
 infant whose lips were drawing from her bosom 
 the nourishment of life ! 
 
 Is this the vaunted justice — the vaunted mercy 
 of the English code ? Shall it be said that there
 
 25 
 
 is in England a legal protection for every right 
 and every claim, natural and artificial, except 
 ONE ; and that one is the tie hetween mother and 
 child I Over that there is no protection ; in 
 support of that the Courts " have no power to 
 interfere ;" in making laws for the human race, 
 the mothers of the human race were forgotten ! 
 They were forgotten ; that is the word. There 
 is no positive enactment that for any crime she 
 can commit against the law, a woman's infant 
 children shall be torn from her ; but there is a 
 negative rule, that if they ai^e, by the father, 
 taken from her, the law cannot compel restitu- 
 tion ; nor even allow access ! 
 
 Lord Erskine, when first at the bar, is reported 
 to have said to a Judge, who, in contradicting 
 his argument, made use of the somewhat con- 
 temptuous expression, *' Such was the law before 
 you were born :" " It is because I was not born 
 that it was the law, and I will see it altered before 
 I die,'' Is there not one of all who acted as 
 counsel or judge in the cases we have given, who 
 will say the same of this ? The real question (as 
 was briefly and eloquently said in Mrs. Greenhill's 
 case) is, '"'whether the right of the father 
 amounts to the exclusion of the mother ?*' If 
 it does not amount to such exclusion, then some 
 alteration is imperatively necessary ; and I think 
 there will hardly be found a man bold enough 
 to assert, in the face of the cases given in the
 
 '26 
 
 appendix, that a father should have this unli- 
 mited rOWEU TO EXCLUDE THE MOTHER WITHOUT 
 
 CAUSE. The man who does assert it, avows his 
 readiness, on the first occasion of quarrel, to 
 tear his infants from their mother ; there is 
 no medium ; either he thinks the power should 
 exist TO BE EXERTED, or that it skoidd not exist 
 at all. 
 
 The man is amenable to the law as a subject of 
 the king ; he is amenable to the law as one of a 
 great social body ; he is amenable to the law as a 
 husband ; and he is amenable to the law (as far 
 as the rights of property are concerned^ even as a 
 father. Why, in this single point of the mother's 
 claim, should he stand as free and independent of 
 all law as if no such thing existed ? 
 
 But it is said that the right of the father to his 
 children differs from all others : that the law can 
 scarcely reach it ; that it is the right of naturi: 
 he exerts, not a power given under the law, and 
 that it is doubtful whether even such interference 
 as is already assumed, is justifiable. This is a 
 palpably absurd objection, for it is the right of 
 nature that a man shall walk abroad, look upon 
 the sun, and breathe the air of heaven at his plea- 
 sure ; it is the first right of his existence ; but 
 nevertheless, for the protection of others, more or 
 less related to and connected with him as mem- 
 bers of the common body, even that right is sub- 
 ject to the law ; nor do we consider it an in-
 
 27 
 
 fringement of natural rights, that one who has 
 offended the law shall be imprisoned ; for as 
 Burke somewhere observes in better words, man, 
 in a.civilized country^ tacitly agrees to exchange 
 SOME PORTION of Jiis natural rights, for the neces- 
 sary legal protection of the rest. There is no rea- 
 son then why a man living under the law should be 
 independent of it in one single and isolated instaiice; 
 nor can the law excuse its non-interference on the 
 plea of the father's natural right, when it does 
 directly interfere with the natural right of the 
 MOTHER, and forces her children from her very 
 breast. Either the right admitted, is natural 
 or ARTIFICIAL ; if artificial, the law has the 
 same power to adjudge the custody of infants, 
 that it would have in case of any other artificial 
 right ; if natural, the law has no power to order 
 children from their mother, since by nature the 
 rights of both parents are co-equal. 
 
 Deprecating the notion that we would assert, 
 and endeavour to establish the mother's claim, 
 against the law, or in defiance of legal power ; 
 it is certainly to be wished that that power could 
 be so firmly established, and so equally exerted, 
 that the woman might throw herself on its pro- 
 tection, instead of endeavouring to baffle its strength. 
 Admit the right of the father to control the edu- 
 cation of his children ; but not his right to sacri- 
 fice the interest of their education to personal 
 anger. Admit his right to the respect and affec-
 
 28 
 
 tion of his offspring ; l)ut not his right to deprive 
 the mother of a share of that affection. Admit 
 his right, as head of his house, and guardian of 
 his property, to retain them, when parted from 
 the mother, as residents under his own roof, or to 
 choose such place of tuition as may seem best to 
 him ; but not his right to exile the mother from 
 all ACCESS to her children, to prevent her from 
 gaining intelligence of their welfare, and to in- 
 flict upon her the tortures of a life of anxiety and 
 despair. 
 
 Nor is the present law to be supported on the 
 plausible assertion that the broad general rule 
 prevents a confusion of rights, and a struggle 
 respecting the custody of the infant ': on the con- 
 trary, it is productive of constant struggles, as 
 may be proved by the cases on record. It is a 
 law against nature, and such a law is not to be 
 borne. Unless (to use the words of the Vice- 
 Chancellor, when quoting the case of Smith 
 V, Smith) ** the woman^s or the child^s death 
 determines the question, ^^ — unless a husband 
 could stab his wife to the heart, and so be rid 
 of her, lier life will be spent in endeavours to 
 obtain an intercourse with her children, and his in 
 endeavours to prevent it. The scale may turn either 
 way, and either parent may succeed ; but only one 
 can succeed where they are thus opposed : 
 whereas by an adjustment which preserved the 
 mutual rights of both, neither would have the
 
 29 
 
 temptation to wean the heart of the child from 
 the other. The mother might fulfil the duties 
 appointed her by God, subject to the conditions 
 of education made by the husband ; and the 
 children (who are under the present system 
 most unjustly made sufferers), would enjoy the 
 benefit of the care and affection of both parents, 
 and neither lean to the woman, nor imbibe their 
 first notions of religion and humanity from a man, 
 who, whatever his tlieory on the subject may be, 
 practically endeavours to teach them the fifth 
 commandment, not as v^ritten " Honour your 
 father and mother ; " but according to a reading 
 of his own, " Honour your father dcmi forget your 
 mother, for she has offended me." 
 
 There is, in the case of every abuse, and more 
 especially in all instances of defective legislation, 
 an appointed day when men rise up against that 
 which has long been, if not quietly, at least 
 obscurely borne, — when the smouldering and con- 
 suming fire bursts into light, and shines like a 
 warninfT beacon to the world. It mav be that the 
 wrong done falls at that time on one less able 
 tamely to submit ; or it may be that the last and 
 crowning example of wrong is more obvious, 
 palpable, and revolting than all which have pre- 
 ceded it. Such is the case in the present in- 
 stance; the last appeal decided under the pre- 
 sent law, was that of Mrs. Grecnhill,* and 
 
 * Appendix, page 54.
 
 30 
 
 when that young, liapless, unoffending woman 
 was ordered to relinquisli her infant children to 
 an adulterous hushand, the law was stamped in 
 the eyes of all men with cruelty, absurdity, and 
 injustice. 
 
 The difficulties attendant upon decisions of a 
 like nature, instead of being removed by that 
 unswerving, uncompromising sentence, will be 
 increased tenfold. As it cannot be supposed that 
 any lesson will so conquer the instinctive nature 
 of their love, as to make them quietly surrender 
 their offspring, we may look forward to the 
 exertion of every species of stratagem and defi- 
 ance on the part of those mothers who may be 
 similarly placed, and who have learned from 
 that story to despair of the protection of the law. 
 Women will copy Mrs. Greenhill's example ; 
 they will leave home, they will leave friends, they 
 will leave country, but they will not leave their 
 children; and a hundred times more confusion 
 and wrong will result than the law will ever put 
 straight again. In that unnatural and revolt- 
 ing strife, the father tearing the child from its 
 mother's breast, the mother flying like a hunted 
 hind, and concealing her little ones from the face 
 of him who should be their natural protector, 
 it may perhaps occur to the lawgivers of a free 
 country, that it w^ould be more for the peace of 
 society, and the credit of humanity, conditionally 
 to admit the mother's natural claim.
 
 APPENDIX.
 
 APPENDIX. 
 
 CASES 
 
 SHEWING THE CONSTRUCTION AT PRESENT PUT UPON THE 
 LAW, AND WHICH WERE QUOTED BY 
 
 MR. SERGEANT TALFOURD, 
 
 In explanation of the object of The Custody of Infant's Bill 
 
 *Case of Mrs. de Manneville, a. d. 1804. 
 
 This is a case well known, and perpetually 
 quoted as a precedent to support other decisions 
 of a like nature, though it may fairly be doubted 
 whether the original decision should ever have 
 been made. 
 
 In 1800, Margaret Compton, an English- 
 woman, possessed of property to the amount of 
 700/. a year, married Lenard de Manneville, a 
 French emigrant. By a settlement previous to 
 the marriage, this property was vested in trus- 
 tees for her separate use for life, and after her 
 death, and in case of her husband surviving her, 
 the interest of ^000/. was to be paid to him for 
 his life. 
 
 The settlement also contained a covenant, that 
 he should in no way compel his wife, after mar- 
 
 * See East's Reports, vol. v. page 2'2I, and Vesey's Reports, 
 vol. X. p. Gl . 
 
 D
 
 31 CASK or MRS. i)i: :\i.\\xrvtt.t,i:, 1S()4, 
 
 riao'c, to live in France, or in any other country 
 than Great Britain. 
 
 Mr. de Manncville seems to have been discon- 
 tented with the pecuniary arrangements made by 
 his wife, for it appeared when the case came be- 
 fore the Courts of law, that he had harassed and 
 persecuted her, to compel her to execute a will 
 in his favour, that in defiance of the covenant he 
 had threatened to carry her by main force out of 
 the kingdom, and afterwards, in 1804, on her 
 becoming a mother, he had in like manner 
 threatened to carry the child away. 
 
 Mrs. de Manneville, fearing that he would 
 put his threats into execution, withdrew from his 
 house at Bolton in Lancashire, to the house of a 
 friend of her mother's near Bolton, taking with 
 her the baby (whom she was nursing), but leav- 
 ing a note informing him where he might see 
 the child. Being soon afterwards advised, from 
 the state of her health, to send the baby to a 
 nurse for a few days, her husband took that 
 opportunity of getting possession of it, but being 
 taken into custody under the alien act, two 
 women, who had been sent by the mother to 
 take care of the child, brought it back to her. 
 Mrs. de Manneville, meanwhile, went to reside 
 under the protection of her own mother, Mrs* 
 Compton, and on the night of the 10th of April, 
 her husband found means, by force and stratagem, 
 to get into the house where she was ; seized the
 
 CASE OF MRS. DE MANNEVILLE, 1804. 35 
 
 child, then at the breast, and carried it away 
 almost naked in an open carriage in inclement 
 weather. 
 
 Mrs. de Manncville applied to the King's 
 Bench for a writ of habeas corpus, directing her 
 husband to produce her infant daughter, and 
 made affidavit of the circumstances under which 
 it had been seized and violently torn from her, — 
 and also that she had separated herself from her 
 husband on account of his cruelty and ill-usage ; 
 and feared the removal of the child to France. 
 
 The case was argued ; and it appearing that 
 there was no clear ground for supposing that Mr. 
 de Manneville intended to remove the child out 
 of the kingdom beyond the vague fears of the 
 mother, Lord Ellenborough decided tkat the 
 father was the person entitled by law to the cus- 
 tody of the child ; and on its being ui'ged that 
 the infant was of very tender age, that its removal 
 from the mother deprived it of its accustomed 
 proper nutriment, and that the father had ob- 
 tained possession of it by force and fraud. Lord 
 Ellenborough further remarked, that there was 
 no pretence that the child had been injured for 
 want of nurture; that the father had a legal right, 
 had not abused that right, and was entitled to 
 have the child restored to him. 
 
 The application to the Court of King's Bench 
 having failed, a petition was presented to the 
 Court of Chancery (in the cause which had been 
 
 D ^2
 
 36 CASE OF MRS. DE MANNEVILLE, 180k 
 
 instituted for the purpose of having the trusts 
 executed and the property secured). The prayer 
 of the petition was, that the infant be produced 
 in Court, and delivered over to its mother ; and 
 in case the Court should be of opinion that the 
 infant should not be taken from the father, then 
 that he be restrained from carrying away either 
 the mother or child out of the jurisdiction of the 
 Court. 
 
 In these proceedings, as well as in the former 
 attempt on the part of the mother to regain her 
 child, the main point considered by the Court 
 was solely whether Mr. de Manneville, being an 
 alien, and native of a country then at war with 
 England, did or did not intend to take this 
 infant, a natural born subject of Great Britain, 
 out of the kingdom ; and it was also the only 
 point with reference to which the decision was 
 made ; for it appearing on further evidence that 
 the mother was justified in fearing the removal 
 of the child, and that the probability was, that 
 such removal would take place unless prevented, — 
 an order was made restraining Mr. de Manne- 
 ville from taking the infant out of the juris- 
 diction of the Court. There was no reference to 
 the mother's claim in this decision, nor was such 
 claim in any way admitted ; on the contrary, it 
 was observed in the course of this case, *' the law 
 is clear that the custody of a child, of whatever 
 age, belongs to the father ;" and although Lord
 
 CASE OF MRS. DE MANNEVILLE, 1804. SJ 
 
 Eldon mentioned instances of interference on the 
 part of the Court, yet neither had these instances 
 any reference to the mother's claim ; and it was 
 established on that case that **the father's right" 
 extends to the hour of a child's birth, and that he 
 may tear it from the breast of its mother, in the 
 act of affording it the nourishment which supports 
 its life. 
 
 This is a very strong case. Here is an English- 
 woman possessed of property, married to a needy 
 French emigrant, whose only complaint against 
 his wife appears to have been her reluctance to 
 will away that property in his favour. The cir- 
 cumstances under which the child was taken were 
 most gross, and such as would seem the act of a 
 savage rather than of one educated in a civilized 
 country. The child itself was only a few months 
 old ; unweaned, and utterly dependant on the 
 mother ; but because, as Lord Ellenborough 
 observed, ** there was no pretence it had been 
 injured by want of nurture ;" that is, because the 
 father, after cruelly taking it from the breast of 
 its mother, supplied it with another nurse ; he 
 was held not to have abused his " right," but to 
 have the same claim to the custody of his child 
 as any other man.
 
 38 CASE OF MRS. SKINNER, 18^4. 
 
 * Skinner v. Skinner, a.d. 182k In the Court 
 of Common Pleas, 
 
 This case is chiefly remarkahle, inasmuch as 
 the effect of the decision given, was to leave the 
 infant not even in the custody of the father, but 
 in the custody of the woman with whom the father 
 was living in adultery. 
 
 It appeared that the husband had treated his 
 wife with the utmost cruelty and brutality, and 
 that, in consequence of such treatment, a separa- 
 tion took place : that he afterwards lived and co- 
 habited with a woman named Anne Deverall, and 
 that, at first, the child (who was under six years of 
 age at the time of these proceedings) was per- 
 mitted to reside with its mother ; but subse- 
 quently, Mr. Skinner caused a writ of habeas 
 corpus to be issued out of the Court of King's 
 Bench, and on the parties attending at the cham- 
 bers of Chief (then Mr.) Justice Best, it was 
 agreed that the child should be placed under the 
 care of a third person. 
 
 Becoming afterwards discontented with this ar- 
 rangement, the father took the infant away from 
 the third party, by stratagem and fraud, and being 
 subsequently confined for debt in Horsemonger- 
 lane gaol, he left it in the care and custody of his 
 mistress, Anne Deverall, who brought it to see 
 
 * 9 Moore, 78.
 
 CASE OF MRS. SKINNER, 18'24. 39 
 
 him every day, and continued to cohabit with liim 
 when in prison. 
 
 Application was then made for a writ of habeas 
 corpus, directing William Skinner and Anne 
 Deverall to bring up the infant, that it might be 
 delivered over to the cai^e of the mother. Affida- 
 vits w^ere made, setting forth the ill-treatment she 
 had sustained, the fact of the husband's adultery, 
 removal of the child from the charge of the per- 
 son with whom he had agreed that it should re- 
 main, &c. 
 
 It is remarkable that, in arguing on behalf of 
 the mother in this case, Mr. Sergeant Lawes cited 
 no less than four instances in which the Court 
 had interfered to protect the mothers of bastard 
 children. The case of ex parte Knee,^' where the 
 Court held that the mother of an infant illegiti- 
 mate child was entitled to the custody of it, in 
 preference to the father, althoucjli, from his cir- 
 cumstances, he might be better able to educate 
 it. The King v, Hopkins, t in which the Court 
 granted a writ of habeas corpus, to bring up the 
 body of a bastard child, within the age of nur- 
 ture, for the purpose of restoring it to the custody 
 of the mother, from ivhose quiet possession it was 
 taken, at one time by fraud, and aftericards by 
 force. The King v. Soper,}: where, in like 
 
 ♦ I New Rep. 148. t 7 East. 579. 
 
 \ 5 Term Hep. 278.
 
 40 CASE OF MRS. SKINNER, 18*24. 
 
 maimer, the putative father obtained possession 
 of his bastard child by fraud, and the Court or- 
 dered it to he returned to the mother ; and the 
 King v. Mosely,* in which the same point was 
 decided. The case of BLissExf was also men- 
 tioned, as proving that where the father appeared 
 to be an improper person to have the care of the 
 child, and it was of too tender an age to choose for 
 itself, the Court of King's Bench had a discretion- 
 ary power to assign the custody of the infant to a 
 third person, on the ground that the power of the 
 parent is subordinate to the authority of the 
 State, in the education of a child, as in other 
 respects. And these points were further pressed 
 upon the attention of the Court — namely, that 
 the husband was confined within the walls of a 
 prison ; was, even there, living in a state of 
 adultery ; and had broken the agreement made, 
 that the child should remain with a third person, 
 and removed it bv stratao^em and fraud. 
 
 In spite, however, of these arguments, the de- 
 cision was given against the mother^ s claim, on the 
 ground that the Court of King's Bench had ** 7io 
 POWER to interfere f' and Lord Chief Justice Best 
 expressed himself in the following terms : — 
 ** When this case first came before me at Cham- 
 bers, I felt considerable difficulty, and thought 
 that, under the circumstances, neither father nor 
 
 * 5 East, *224, n. f Lofft, 748.
 
 CASE OF MRS. SKINNER, 1824. 41 
 
 mother was entitled to have the custody of the 
 child : and it was there agreed on hy hoth parents 
 that it should be placed under the care of a third 
 person. Still the father had a power to take it 
 away ; and although the Court might direct the 
 child to be brought up by a writ of habeas corpus, 
 yet the difficulty is, what is to be done with it now 
 it is before us 1 I was referred to Blisset's case, 
 and it certainly is extremely strong to shew that 
 the power of assigning the custody of a child 
 brought before the Court of King's Bench was 
 discretionary, if the father appeared to be an im- 
 proper person to take it, I therefore thought that 
 the most prudent course would be to assign it to the 
 care of a third person, and which was acceded to 
 by both its parents. But it now appear^ that the 
 father has removed the child, and has the cus- 
 tody of it himself, and no authority has been 
 cited to shew that this Court has jurisdiction to 
 take it out of such custody, for the purpose of 
 
 DELIVERING IT TO THE MOTHER." 
 
 In the course of these observations, his Lord- 
 ship referred to the Court of Chancery, as having 
 a power superior to that of the King's Bench, as 
 representing the King as Parens Patrice ; and he 
 affirmed that that other Court might accord- 
 ingly, under certain circumstances, control the 
 right of a father to the possession of his child, 
 and appoint a proper person to watch over its 
 morals, and see that it receive proper education
 
 4^ CASE OF MRS. SKINNKR, 1824. 
 
 and instruction. Undoubtedly, the Court of 
 Chancery HAS such a power; but the question is, 
 under what circumstances it will exert any autho- 
 rity. It does not appear that Mrs. Skinner pre- 
 sented any petition to that Court ; but in the cases 
 of Mrs. Ball and Mrs. Greenhill, (which are given 
 at page 49 and 54) it will be seen, that although 
 in both instances the husband was living in adul- 
 tery, and the wife was a person in all respects fit 
 to keep and educate her children, the Court did 
 not consider itself authorized to conti^ol the custody 
 of the father, A woman, circumstanced as Mrs. 
 Skinner was, goes to the Court of King's Bench 
 and the Court says, " your case is a hard one, 
 but we have no powder to inteifere,^* She goes 
 to the Court of Chancery, and there the an- 
 swer is — " We certainly have a power to con- 
 trol the father's right, under circumstances of 
 gross misconduct, ill usage of his children, or 
 waste of their property ; but we cannot consider 
 the fact of your husband forsaking you, and living 
 openly with a mistress, as gross misconduct, nor 
 as any proof that he will neglect his children's 
 interests, or waste their property ; therefore we 
 cannot interfere, any more than the Court of 
 King's Bench. The law is, that the father has 
 a RIGHT to take the children from you, and to 
 bar your access to them if he chooses, and we 
 have no 'power to compel him to act otherwise." 
 Mrs. Skinner's case is, perhaps, as strong a
 
 CASE OF MRS. SKINNER, 18!24. 43 
 
 proof as could be given, that a power with respect 
 to legitimate children should exist, since, as we 
 have already said, the effect of the decision here, 
 was to leave the child in the same custody as 
 before ; and that custody was not the custody of 
 the father, (however it might be nominally held 
 to be such,) but the custody of the woman with 
 WHOM HE WAS LIVING. Now, there is much talk 
 of protecting the child from ill-usage, but is there 
 no way of protecting the mother ? Can any thing- 
 be conceived more bitter than the situation of this 
 woman, compelled to resign her child, — her own 
 flesh and blood, — into the hands of one whom 
 she must naturally regard with distrust, hatred, 
 and loathing, as the person who had seduced from 
 her the affections of her husband, and -who had 
 been, probably, the cause of all she had endured? 
 Is it natural that she should expect such a one to 
 shew kindness to her infant? or, if shewn, is 
 there not something revolting in the idea of this 
 unconscious child lavishing its tenderness on the 
 woman who had so bitterly wronged its mother ? 
 Is it just to take it from that wife and mother, 
 anxious as she must be for the welfare and purity 
 of mind of her little one, and pollute its inno- 
 cence by giving it up to the strange woman and 
 adulteress ? And can it be believed that a deci- 
 sion would be made in an English Court of justice, 
 calculated to produce such a result ? The Court 
 did not indeed decide that this woman should
 
 44 CASE OF MRS. SKINNER, 1824. 
 
 have the child, hut such was the effect of the de- 
 cision which, under the present state of the law, 
 they felt themselves legally hound to make. It is 
 against all our ideas of natural justice that the 
 mistress of this adulterous hushand should for- 
 cibly retain the legitimate offspring of his de- 
 serted wife, and the law must be defective which 
 permits such an abuse of natural rights. 
 
 It is constantlv ur<Tfed that a measure of which 
 the principles are correct, and which in general 
 may be said to act well, is not to be considered 
 faulty because it either cannot be made to 
 apply to isolated instances of wrong, or acts upon 
 them with an apparent increase of oppressive 
 instead of remedial power : but the above case of 
 Skinner is constantly quoted as a precedent ; it 
 therefore cannot be said that it is an isolated 
 instance of the bad effects of the law, for the de- 
 cision given on that occasion is made to support 
 other decisions in similar cases, and should an 
 instance recur, point for point the same, and the 
 most eloquent counsel at the bar were to urge 
 the hardship of abandoning the child to the mis- 
 tress of the husband, the reply of the Court 
 would be, that it had been held in the case of 
 Skinner v. Skinner, that they had *' no power" 
 to interfere. 
 
 This case, therefore, must be taken with the 
 rest, and being so taken, is a strong argument
 
 CASE OF MRS. M*CLELLAN, 1880. 45 
 
 airainst the existence of the father's absolute 
 and uncontrolled right to dispose of his infant 
 children. 
 
 Case of Mrs. M^Clellan,* a.d. 1830. 
 Court of King^s Bench, 
 
 This case, like the foregoing, is one well known 
 and constantly quoted as a precedent, and one 
 which cannot fail to excite compassion for the 
 mother, since the child of whom she desired to 
 retain possession, was afflicted with a disease by 
 which she had lost her other children, and this 
 state of its health was the only reason urged 
 against the exertion of * The father s right. ^ 
 
 It does not appear in the brief report from 
 which the facts of this case are taken, what was 
 the cause of the separation between the father 
 and mother ; but being so separated, the father 
 had taken this little girl, a child of tender years, 
 and placed her at school, where she had remained 
 for some time. Becoming afterwards diseased 
 with scrofula, and requiring constant care and 
 attention, the mother persuaded the governess 
 to allow her to take it away, promising to restore 
 it in a short time. The child continued ill, and 
 
 *■ Dowling's Practical Cases, vol. i. p. 81.
 
 4() CASE OF :\iHs. :m'clt:llax, 1880. 
 
 was not brought ])ack ; and the father procured 
 a writ of li{il)eas corpus to bring up the infant 
 from the custody of the mother and restore it to 
 that of the schoolmistress. 
 
 It was argued for the mother, that the child 
 was in a very delicate state of health, that two 
 of her cldldren had died of this very complaint, 
 and that the mother only struggled to retain pos- 
 session of it, that she might personally bestow on it 
 all the tenderness and attention its state required ; 
 which she had done ever since it was delivered 
 up to her by the governess ; and a hope was ex- 
 pressed that under the peculiar circumstances, 
 the child would not be delivered over to the 
 father by the judgment of the Court. 
 
 Mr. Justice Patteson, however, decided against 
 the mother s claim ; quoting de Manneville as a 
 precedent that the law was perfectly clear as to 
 the right of the father to the possession of his 
 legitimate children, of whatever age they he ; and 
 also referring to the case of SJdnner, as one in 
 which the Court had doubted its authority to 
 interfere, (and where as we have already seen 
 the Court did not interfere). His Lordship in 
 conclusion remarked, " There is nothing sug- 
 gested which leads one to suppose that any ill- 
 usage has been exercised by the father, or by 
 the schoolmistress with whom he wishes his 
 child to be placed. I feel myself, therefore, 
 bound to sav that the child must be delivered
 
 CASE OF MRS. M*CLEI.LAN, 1830. 47 
 
 up to Miss , whom the father has named. 
 
 It might he better, as the child is in a delicate state 
 of health, that it should he with the mother ; but 
 WE cannot make any order on that point." 
 
 The matter was thus brought to a conclusion. 
 No misconduct was alleged on the part of the 
 mother, and so far from its being for the child's 
 interest or comfort that it should be so removed, 
 it was expressly stated that the governess was 
 persuaded to allow the mother to take it away, 
 in order that it might receive, in its sick and dis- 
 eased condition, a care more vigilant and affec- 
 tionate than it could otherwise ohtain. Mr. Justice 
 Patteson remarked, ** it is not pretended that 
 the child has been ill-treated ; so gross a cruelty 
 as the intentional ill-usage of a helpless child, 
 confided even to hired attendants, is, to the honour 
 of human nature, extremely rare ; but there is a 
 wide difference between the absence of all in- 
 tentional cruelty, and the devoted watchfulness 
 and care of a mother, especially in a case like 
 this, where, from the circumstance of her former 
 children having suffered from the same complaint, 
 the mother may he supposed to have earned the ex- 
 perience of what was hest to he done*^ 
 
 It is impossible from these brief legal reports, 
 where nothing is set down more than is absolutely 
 necessary to explain the decision given, to collect 
 all the circumstances which might tend either to 
 aggravate or excuse the apparent harshness dis-
 
 48 CASE OF MRS. M'cLKLLAX, 1830. 
 
 played towards a woman in Mrs. M^Clellan's 
 
 » 
 
 anxious and painful position ; but enough has 
 been shown to entitle this case to rank amonff 
 those in which ** The father's right" has been 
 unduly exercised ; and certainly to prove that 
 NO circumstance of hardship as regards the mo- 
 ther's FEELINGS, weighs with the decision of the 
 Courts, although they are so repeatedly said to 
 exert " a discretionary power.'' Mr. Justice 
 Patteson did indeed give it as his private opinion 
 that the sickly child w^ould be best in the custody 
 of its own mother, but, as a j udge, he considered 
 he was bound to decide against that mother, or 
 rather that he had " no power to interfere." 
 The same remark made in the foregoing example 
 (Skinner v. Skinner) will apply here ; namely, 
 that the powder to interfere ought to exist some- 
 where, and that that power should be exerted 
 to protect the mother's claim ; indeed it may 
 be questioned whether the law, arbitrary as it 
 is, is not strained, when the father's custody is 
 interpreted to be, the custody of any stranger 
 the father may choose to appoint. There is some- 
 thing revolting in the idea of this little sickly 
 wretch being forcibly taken from its mother, and 
 returned to its schoolmistress, merely because it 
 w as the father's will and pleasure that the me- 
 lancholv satisfaction of nursin<>' it should be 
 denied to his wafe ; more especially when it is 
 remembered that she had alreadv laid two in the
 
 CASE OF MRS. BALL, 18^7. 49 
 
 grave, and that no reason was assigned for taking 
 it from her. 
 
 Ball v. Ball,* a. d. 18^7. — Court of Chancery, 
 
 This case differs from the three which have 
 already been given, in as much as the child was 
 above the age of nurture, and the mother petitioned 
 EITHER to he permitted the custody of her daugh- 
 ter (she offering to maintain her at her own 
 expence), or failing in that, to he permitted access 
 to her at all convenient times. This petition was 
 to the Court of Chancery ; and it will be seen that 
 the superior authority to control the father's right, 
 to which allusion was made in the cases t)f Skin- 
 ner and M*Clellan, was not exerted in her 
 favour. 
 
 Mr. Shadwell (the present Vice-Chancellor) 
 and Mr. Bickersteth, (the present Master of the 
 Rolls) for the petitioners (Mrs. Ball, and Emily 
 Owen Ball, her daughter), stated that the father 
 was living in habitualadultery with another woman, 
 on account of which Mrs. Ball had obtained a di- 
 vorce in the Ecclesiastical Courts. 
 
 The Vice-Chancellor observed : — 
 
 " The Court has nothing to do with the fact of 
 the father s adultery, unless the father brings the 
 
 * Simon's Reports, vol. ii. page 35. 
 E
 
 '"50 CASE OF MRS. BALL, 18^7. 
 
 child into contact with the woman. All the cases 
 on this subject go upon that distinction, where 
 adultery is the ground of a petition for depriving 
 the father of his Common Law Ritrht over the 
 custody of his children.'' 
 
 (It was explained that the mother's object was 
 not to deprive the father of this right, and that 
 her petition was in the alternative, and merely 
 prayed that if the daughter was not allowed to 
 live with her, she might at least have liberty of 
 access. The argument was then continued). 
 ** The child formerly lived with her mother, and 
 occasionally went to visit her father. On one of 
 these occasions, the father (without any communi- 
 cation with the mother) detained the daughter, 
 and sent her to a school. The mother was for a 
 long time ignorant what had become of her child ; 
 and when, after most persevering search, she 
 found out the school at which she had been placed, 
 the mistress refused to allow the mother to see 
 the child except in her presence. We admit there 
 is no cause for taking away the father's authority, 
 but submit that there is very good cause for grant- 
 ing the other alternative of the prayer of the 
 petition,*^ (namely, free access to the child). 
 
 " The daughter, when with her father, is living 
 in a house where there is no society except that 
 of a female servant of all work ; but when she is 
 with her mother, she has the attention of a mother 
 whose conduct is entirely unexceptionable, and
 
 CASE OF MRS. BALL, 18^7' 51 
 
 who has always endeavoured to impress upon her 
 child a proper regard towards the father ; and in 
 one letter from Mr. Ball he thus expresses him- 
 self : * / should he most happy to see my child put 
 under her mother's protection,'^ In another, ^ The 
 charge of my seeking to deprive the mother of her 
 child is most false ; if it had been true^ my cha- 
 racter would be stamped as that of a villain* Yet 
 subsequently to these letters he secretes the child 
 from her mother, and sends her away." 
 
 ** The affidavits go on to state that the father's 
 conduct was so gross and violent towards Mrs. 
 Ball, when she went to him to make inquiries as 
 to the daughter's residence, that it was dangerous 
 for her to he in his presence. The question 
 
 REALLY IS, whether A CHILD IS TO BE DEPRIVED 
 BY THE BRUTAL CONDUCT OF THE FATHER, OF 
 THE COMPANY, ADVICE, AND PROTECTION OF A 
 MOTHER, AGAINST WHOM NO IMPUTATION CAN BE 
 RAISED ?" 
 
 The Vice-Chancellor said : 
 
 " Some conduct, on the part of the father, with 
 reference to the management and education of the 
 child must be shown, to warrant an interference with 
 his LEGAL RIGHT ; and I am bound to say, that 
 in this case there does not appear to me to be 
 sufficient to deprive the father of his Common 
 Law Right to the care and custody of his child. 
 It resolves itself into a case for authorities ; and 
 I must consider what has been looked upon as the 
 
 E 2
 
 5^ CASE OF MRS. BALL, 1827- 
 
 law on this point, I do not know that I have any 
 
 AUTHORITY TO INTERFERE. I do not knOW of 
 
 any case similar to this, which would authorize 
 my making the order sought, in either alternative. 
 If any could he founds I would most gladly 
 adopt it ; for in a moral point of view I 
 
 know of NO ACT MORE HARSH OR CRUEL, than 
 
 depriving a mother of proper intercourse with her 
 child. 
 
 " I was myself counsel in two cases, in which 
 Lord Eldon refused petitions precisely similar. 
 Smith V. Smith (one of them), was precisely si- 
 milar in its facts to the present case, except that 
 the father's object there, was to compel the mother, 
 by such means as are now complained of to give up 
 to him some property, which was settled to her own 
 separate use. My course of argument in that 
 case was, that as the law allowed the Mothers 
 OF Bastards to retain possession of their children 
 till the age of seven, a fortiori, must the law allow 
 
 the care of legitimate CHILDREN to BE VESTED 
 
 IN THE MOTHER (the child in that case was under 
 seven). The Lord Chancellor, however, refused 
 the order, and before any further proceedings 
 were had, either the mother's or the child's death 
 determined the question. That was a very strong 
 case ; yet the Lord Chancellor held that the Court 
 had no jurisdiction.'' 
 
 After some further observations, the petition 
 in behalf of Mrs. Ball and her daughter was dis-
 
 CASE OF MRS. BALL, 1827- ^^ 
 
 missed ; this Court of superior authority decid- 
 ing, that it had no more power than the Court of 
 King's Bench to restore a legitimate child to the 
 mother from whom it had been taken by force 
 and fraud, even where the husband was living in 
 open adultery ; and not only the Court had not 
 power to restore the infant, but it was not able 
 even to order that the mother might from time to 
 time see the child so taken from her ! 
 
 In this, as in the previous example, there is 
 no pretence that the mother was unfit to have the 
 custody, or that it was in any way for the child's 
 interest that it should be separated from her. 
 Mrs. Ball's reputation was free from all shadow 
 of reproach ; she was a fond and attentive parent, 
 and she was able to maintain and educate her 
 daughter, without any pecuniary assistance what- 
 ever from the father. Every possible argument 
 that could be urged, was in favour of her retain- 
 ing possession of the child ; and we have, besides, 
 the expression of the Vice-Chancellor's feelings 
 and opinions on the subject, at direct variance 
 WITH HIS LEGAL DECISION. It is fair, then, to 
 number this among the instances which prove the 
 necessity for a revision of that law, of which the 
 Judge himself appeared to doubt the justice, and to 
 admit the inhumanity. It is fair to expect, that 
 the day will come, when some better answer may 
 be made in a Court, assuming authority to pro- 
 tect the subject, than that here given, namely,
 
 54 CASE OF MRS. GREENHILL, 1835. 
 
 ** We have no power to interfere.'* If ever cir-r 
 curnstances warranted interference, those under 
 which Mrs. Ball was deprived of her young" 
 daughter, would seem to require it. The husband 
 had been legally separated from her on account 
 of his conduct ; he was of so violent and furious a 
 disposition, that it was dangerous for this unhappy 
 woman to approach his presence, merely to ask 
 the residence of her child ; he had obtained posses-, 
 sion by fraud, and sent it away without even per- 
 mitting the mother to know of its removal. In 
 short, there is no possible way in which we can 
 reconcile the decision given with our ideas of 
 justice. The decision was essentially unjust, 
 and is, besides, mischievous in its effect, since it 
 establishes a precedent for a like ill-usage of some 
 other sufferer, and a certainty of impunity on the 
 part of the sinner ; both which mischief and in- 
 justice might be prevented by the acknowledg- 
 ment of THE NATURAL CLAIM OF THE MoTHER, 
 
 where nothing has occurred by which she can be 
 said to have forfeited that claim. 
 
 *Mrs. Greenhill's Case, 
 
 This case affords the strongest argument that 
 can be given against the absolute right of the 
 
 * Court of Chancery and Court of King's Bench.
 
 CASE OF MRS. GREENHILL, 1835. 55 
 
 father over the persons of his infant children ; 
 since more cruel, unjust, unmanly dealing, or 
 more gross and open defiance of all decency and 
 social right, never was displayed than in the 
 reported conduct of the husband ; nor is it pos- 
 sible to deny, that the law which permitted such 
 a decision in such a case, is inhuman, immoral, 
 
 AND FOUNDED ON NO CONCEIVABLE PRINCIPLE 
 OF NATURAL JUSTICE. 
 
 In the year 1829 Miss Macdonald, daughter 
 of Colonel Macdonald of Exeter, was married to 
 B. C. Greenhill, Esq. They had three children ; 
 Lavinia, Flora- Macdonald, and Clara ; all seve- 
 rally under six years of age at the time of the sepa- 
 ration ; the youngest being but two years and a 
 half old. ♦ 
 
 In September 1835, Mrs. Greenhill (being then 
 at Weymouth for the benefit of her health, with 
 her three litrle girls, and Mr. Greenhill absent in 
 his pleasure yacht) received intelligence that her 
 husband was unfaithful to her, and had for more 
 than a year been intimate with a female of the 
 name of Graham, with whom he had cohabited 
 both in London and at Portsmouth, passing her 
 off as his wife, and even allowing her to assume 
 his name. Distracted with sorrow and indigna- 
 tion, Mrs. Greenhill set out for Exeter, where 
 her mother resided, in order to obtain the sup- 
 port and advice of her family under these trying 
 circumstances. Her brother, Captain R. Mac-
 
 56 CASE OF MRS. GREENHILL, 1835. 
 
 donald, and her sister, accompanied her back to 
 Winterborne (one stage short of Weymouth), 
 where the two ladies remained till Captain Mac- 
 donald having proceeded alone to Weymouth, 
 and broken up the establishment there, brought 
 the children to their mother ; the party then 
 returned to Exeter, and Mrs. Greenhill remained 
 under the protection of her own family, and in- 
 stituted proceedings in the proper Courts, for 
 separation from her husband (on the ground of 
 adultery) and for alimony. 
 
 On Mr. Greenhill being informed of the disco- 
 very 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, Mr. 
 B. of Exeter, 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 on Mr. B. informing her that Mr. 
 Greenhill was willing to give her such a provision 
 as it was likely the Court would award her for 
 alimony, she replied, that she would accept 
 ** nothing but what the law would give her." 
 
 Finding that Mrs. Greenhill would not consent 
 to forego the suit, her husband changed his tone, 
 and Mr. B. was instructed to write to her, and 
 make her aware of the insult and injury which
 
 CASE OF MRS. GREENHILL, 1835. 57 
 
 would be added to the wrong she had already suf- 
 fered, in the event of her persisting to go into 
 the Ecclesiastical Court ; which was accordingly 
 done : and the conclusion of the letter was as 
 follows : — 
 
 " Mr. B, makes^ therefore, on Mr. GreenhilVs 
 behalf, three distinct demands :— 
 
 *' 1. The return of all Mr, GreenhilV s jewels, 
 taken from Knowle, 
 
 "2. An order, that the carriage should he 
 delivered up to Mr. B, this evening. 
 
 ^*3. And, the most important of all, that the 
 
 CHILDREN SHALL BE PLACED UNDER Mr. B.'s 
 
 PROTECTION, to he taken to Knowle.''^ 
 
 Mrs. Greenhill did not obey the command of 
 this letter, and the next step taken by her hus- 
 band was to move for a writ of habeas corpus, 
 commanding her to produce the three children 
 on the 28th October, at the house of Justice Pat- 
 teson. As soon as the writ was issued, and be- 
 fore its return, the mother instituted a suit in 
 Chancery, for the purpose of making the children 
 wards of that Court ; and a petition was pre- 
 sented praying the protection of the Court, 
 and that a proper guardian might be appointed. 
 
 On the night of the 28th October, in obe- 
 dience to the writ of habeas corpus, Mrs. Green- 
 hill having arrived with her children from Exeter, 
 appeared with them at Mr. Justice Patteson's. 
 Some argument by counsel on each side took
 
 58 CASE OF MRS. GREENHILL, 1835. 
 
 place before his Lordship, who ultimately allowed 
 the matter to stand over till the evening of 
 Thursday, the 5th November, the children mean- 
 while remaining with the mother, and their pre- 
 sence being dispensed w^ith by the consent of all 
 parties. 
 
 On the morning of Thursday, the 5th of No- 
 vember, the petition in Chancery was heard by 
 the Vice-Chancellor, and six affidavits were read 
 before him, the substance of which was as fol- 
 lows : — 
 
 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 w ife, and made overtures of re- 
 conciliation) ; 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 bu- 
 siness 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 occa- 
 sionally w aited on his wdfe, to w ait on this w^oman, 
 and drive 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
 
 CASE OF MRS. GREENHILL, 1835. 59 
 
 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 rela- 
 tives, and expressed his determination to persist 
 in the intimacy he had formed. 
 
 That Mrs. Greenhill firmly believed, that her 
 children, if taken from her, would be prevented 
 from seeing lier^ and delivered over to 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 onli/ 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 chil- 
 dren, 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. GreenhilPs own mother, 
 Mrs. Macdonald (who had always been on good 
 terms with her son-in-law, and had shewn him 
 great affection, especially in nursing him through
 
 60 CASE OF MRS. GREENHILL, 1835. 
 
 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 con- 
 trol 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. Greenhiirs 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.
 
 CASE OF MRS. GREENHILL, 1835. 6l 
 
 All this having been sworn, the Vice-Chan- 
 cellor gave his decision, namely, " That however 
 had and immoral Mr, GreenhiWs conduct might be, 
 unless that conduct was brought so under the notice 
 of the children as to i^ender it probable that their 
 minds would be contaminated, the Court of Chan- 
 cery had NO AUTHORITY TO INTERFERE with the 
 
 common law right of the father, and that he had 
 not THE POWER to Order that Mrs, Greenhill should 
 even see her children as a matter of right'' He 
 accordingly dismissed the petition, the mother's 
 separate claim not being acknowledged by the 
 Court. Similar affidavits were read again the 
 same evening, before Mr. Justice Patteson, who 
 was attended by counsel on each side. His Lord- 
 ship took time to consider these affidavits, and 
 said that before he decided, he would consult the 
 other judges. 
 
 On the 10th November, his decision 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 chil- 
 dren. 
 
 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 ut- 
 ** most respect to the Court ; but as she feels that
 
 6s CASE OF Mils. GREENHILL, 1835. 
 
 '* the health and comfort of her three infants 
 ** (under the age of six years), will he destroyed 
 ** by their removal from her care, she prefers sa- 
 ** crificing herself^ if it be called for, rather than 
 ** so sacrifice her children ; being well assured, 
 ** that their removal is with the ultimate inten- 
 " tion of excluding her from all communication 
 ** with them." 
 
 Mr. Greenhill's next step was to make affi- 
 davit 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. 
 
 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 Patte- 
 son's order should not be set aside, and the chil- 
 dren 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. Sergeant Talfourd appearing for Mr. 
 Greenhill. At the conclusion of the learned 
 Sergeant'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
 
 CASE OF MRS. GREENHILL, 1835. 63 
 
 delay was given. On the following day, Mr. 
 Sergeant Wilde, Mr. Sergeant 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 deter- 
 mined 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, with- 
 drew precipitately and left the kingdom, taking 
 with her her three little girls. 
 
 In January the matter was again argued (Mrs. 
 Greenhill being still abroad), and the rule ob- 
 tained 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. GrecnhilPs case : — 
 
 ** The children are all females, and infants of 
 tender years, and whom it appears most unna-
 
 64 CASE OF MRS. GREENHILL, 183.5. 
 
 TURAL to tear from a mother who is devotedly 
 attached to them, against whom not a shadow of 
 imputation rests, and whom her husband does not 
 hesitate to admit is in every respect a fit and 
 proper person to have the care and custody of 
 them. Illegitimate children under the age of 
 nurture (which has been held to be seven years), 
 cannot hy law he taken from the mother, and it 
 seems most unnatural and unjust that legiti- 
 mate children should be in a worse position. It 
 cannot he denied that it has been held to he law that 
 an infant may, hy the father, he torn from the 
 hreast, hut it is submitted that there is ground 
 
 FOR A revision OF THAT DECISION." 
 
 *' 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 he not wholly separated from them. The 
 question in this 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." 
 
 " The mother does not even insist that the 
 children shall be in the same house with her, hut 
 only that she shall have access to her children. 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 assert-
 
 CASE OF MRS. GREENHILL, 1835. 65 
 
 iiig 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.'' 
 
 " It is not contended that this Court has power 
 to take the child from the father, but surely the 
 Court will pause before it makes an order to de- 
 prive children of so tender an age of the care 
 and superintendence of the mother. The Court 
 may he 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, for in Ball v. Ball the Vice- Chancellor 
 decided that he had no power to order the father to 
 permit the mother to have access to her child!^ 
 
 " Here, the fault and blame of the parents not 
 living together, must be imputed to the father." 
 
 In opposition to these remarks, and in support 
 of the ** Father's Right," as exercised by Mr. 
 Greenhill, it was observed : — 
 
 " There is no doubt that by law the father is 
 entitled to the custody of his children. The wife 
 is not entitled to such custody in opposition to the 
 claims of the husband." 
 
 "There is no ground for setting aside the order 
 of Mr. Justice Patteson. One alleged reason is, 
 that the children are within the age of nurture. 
 That is not a - sufficient reason. The law has
 
 66 CASE OF MRS. GREENHILL, 1835. 
 
 given the custody of the children, in cases of 
 unhappy disputes between the husband and wife, 
 to the husband. Of illegitimate children, it is 
 true that they cannot be separated from the 
 mother during the period of nurture, but the 
 LAW recognises no such principle with respect to 
 legitimate children.'' 
 
 *' In Rex V, De Manneville, (a much stronger 
 case, since the infant was only eight months old) 
 this question was much considered, and that case 
 IS AN express authority to shcw that Mrs, 
 Greenhill has no right to detain these children. 
 The case of De Manneville is recognised and 
 commented on in the case of M*Clellan. In 
 ex parte Skinner, all the cases are collected, and 
 the true distinction is taken, — that this Court has 
 NO discretionary power to control the right of a 
 father to the possession of his child." 
 
 ** The second ground for setting aside Justice 
 Pattesons order, is the immorality of the father. 
 It is laid down by Lord Eldon that this is a 
 matter within the jurisdiction of the Chancellor 
 only ; but assuming that this Court has the same 
 jurisdiction as the Lord Chancellor, — will this 
 Court differ from the Vice- Chancellor, who upon 
 the statement of the circumstances now presented to 
 this Court, refused to interfere with the 
 RIGHT of the father? In Ball v. Ball, the 
 Vice-Chancellor is reported to have said, ** the 
 Cour has nothin<r to do with the fact of the
 
 CASE OF MRS. GREENIIILL, 1835. ()7 
 
 father's adultery, unless he bring the child into 
 contact with the woman. In ex parte Sldimer, 
 not only was the husband living in adultery, hut he 
 actually had entrusted the child to the woman with 
 whom he was living in adultery ^ and yet the 
 Court allow^ild him to retain the child." 
 
 Lord Denman, in giving his decision, said — 
 *' This is a rule obtained for setting aside an 
 order, which directs that the children of Mr. 
 Greenhill should be delivered up to him ; and as, 
 unfortunately, the attempts to arrange the matter 
 have failed, we are now bound to pronounce what 
 we believe to be the law upon the subject. 
 There is no doubt whatever, that where a father 
 has the custody of his children, he is not to be 
 deprived of them, except under such circum- 
 stances of misconduct as do not occur in the pre- 
 sent case ; for although Mr. Greenhill is charged 
 with misconduct, yet there is nothing in the case 
 stated, with respect to his conduct, which has ever 
 been held sufficient to deprive a father of the 
 custody of his children" 
 
 ** It is true the father has formed an illicit con- 
 nection ; but it is not pretended that the woman 
 with whom the connection has been formed was 
 livino* in the father's house, or that his conduct in 
 this connection has been marked loith any offensive 
 indecency. As far as the husband's assurances 
 may be taken, they are distinctly given, that he 
 would not bring the children into contact with the
 
 ()8 CASE OF MRS. GREENHILL, 1835. 
 
 woman in question ; and it is not to be presumed 
 that he would violate the assurances he has thus 
 given." And finally his Lordship observed : — 
 
 " We do not feel that we could make any 
 modified order ; and we cannot entertain any doubt 
 that my brother Patteson acted rightly." 
 
 Now, without discussing whether the circum- 
 stances of Mr. Greenhill permitting his mistress 
 to bear his wife's name ; to be waited on by his 
 wife's servant ; to sail in the yacht in which he 
 had just before taken his wife ; or the fact of his 
 admitting to his wife's relations that this woman 
 was his mistress ; refusing to part with her, and 
 admitting that he lived with her as Mr. Graham ; 
 were or were not circumstances which marked 
 his conduct in the connection with offensive inde- 
 cency ; and allowing the negative proof afforded 
 by the long concealment of that connection, that 
 some decency was observed with respect to its 
 management, yet we may be permitted to ask 
 whether it would not be an improvement in the 
 law if the question were not so much *' Why 
 shoidd this man, in spite of his adidtery, not take 
 away his children V* as " Why should this woman 
 who has in no way offended, be deprived of her 
 children ?'' especially as there is no question but 
 the father would in all cases have whatever access 
 he pleased to his offspring. 
 
 Suppose the case to be reversed ; suppose a 
 woman to have carried on an intriijuo for a vear,
 
 CASE OF MRS. GREENHILL, 1835. 6.9 
 
 and to have conducted it with so much decency, 
 i. e. with so much hard and skilful hypocrisy, 
 that the hushand whom she continually met, and 
 with whom she was on terms of aifection and 
 confidence, never suspected her, till accident, or 
 the accusation of a third party, revealed it to him. 
 What would be the result in such a case ? Why 
 that woman would at once forfeit every social 
 right of her existence. She would have no 
 claim on the protection of the law as regarded 
 her children, no claim as regarded her husband, 
 no claim as regarded the slenderest provision 
 that could find her in bread ; she would be an 
 outlawed creature ; if the husband shut his door 
 against her, and forbade her ever to look on her 
 children again, he would do no more than 'would 
 be considered justifiable. Surely it is a glaring 
 piece of injustice, that while the adulterous wife 
 forfeits every claim of nature, the adulterous 
 husband not only is pronounced as fit to fulfil the 
 social relations, as before, but has this addi- 
 tional PRIVILEGE accorded him, that if his wife 
 rebels against his intention of keeping a mistress, 
 he can punish her for such rebellion, by wringing 
 from her the only source of happiness she has 
 remaining, in the society and endearments of her 
 infant children ! 
 
 Such was the case in the instance before us, 
 and such may be the case a hundred times, or a 
 thousand times aoain, unless some more rational
 
 70 CASE OF MRS. GllEENHILL, 1835. 
 
 law be made on the subject. Mrs. Greenbill 
 tried the Court of Chancery, she tried the Court 
 of King's Bench, but there was no power, vested 
 in either Court to interfere ! It may be said 
 mdeed, that since the children were from the 
 first in the custody of the mother, and were never 
 surrendered out of that custody, the spirit and 
 determination shewn by this unhappy young 
 woman did in fact baffle the law: but her case, 
 as affected by legal decision^ is not the less hard. 
 Mr. Greenhill's object from the beginning was 
 to prevent proceedings against himself in the 
 Ecclesiastical Court ; in this he has succeeded. 
 His mfe, who had not sinned, and who had 
 already suffered bitterly in consequence of the 
 discovery of his infidelity, is compelled by the 
 effect of the law lohich obliges her to forfeit her 
 childre?i, to forego that other law which holds out 
 to her the slender protection of not being legcdly 
 bound to live loith her husband ; she is either to 
 be an exile abroad, or a prisoner in England ; 
 and the husband is to have the triumph of find- 
 ing, that not only there is no punish7nent for his 
 adultery y but that the state of the law as regards 
 his ofi'spring, does in fact hold out a protection 
 to him ; and supplies him with a power over his 
 unoffending wife, of which he himself was pro- 
 bably not aware, when he first sent Mr. B. to 
 Exeter with conditional offers of arranofement 
 and separate maintenance.
 
 CASE OF MRS. GREENHILL, 1835. Jl 
 
 In this case, and in support of it, were quoted 
 all the previous cases given, (each of which is an 
 aggravated instance of injustice ;) and from it 
 may be drawn a deduction injurious to the best 
 interests of society, since it teaches women rather 
 to depend, as they are already prone to do, on 
 wild and romantic expedients, than on the pro- 
 tection afforded them by the laws and rules which 
 govern the community at large. 
 
 It is impossible to find fault with the conduct 
 of Mrs. Greenhil], in withdrawing herself and 
 little ones, after the decision given ; since that 
 decision was to leave her in the bloom of youth 
 deceived, betrayed, and utterly desolate, while it 
 sent her children to glean what affection their 
 father could spare, from the fiercer* fire of an 
 illicit attachment ; perhaps to share that affection 
 with a spurious offspring. Yet what a picture is 
 here presented ! The law called upon to sanc- 
 tion and support a man in the most glaring injus- 
 tice, inflicted on a helpless and innocent woman : 
 the law put into force against the holiest rights 
 of nature by the vengeful caprice of this bad 
 man : the dreariest punishment under the law 
 (namely, incarceration) awarded to a woman 
 whose only offence was attachment to her chil- 
 dren : and finally, be it remarked, the law baffled, 
 by the strength of universal sympathy against it, 
 among those who saw its effect in that instance. 
 All this resulting, as affirmed, from a want of
 
 7^ CASE OF MRS, GREEXHILL, 1835. 
 
 power on the part of the Courts, which might 
 enable them to exercise a proper discretion in such 
 cases! Can any one doubt that some alteration 
 is necessary ? 
 
 For an example of the rule that at the age of 
 14 years, a child cannot be forced back to the 
 custody of its father, if the child himself he un- 
 unwilling to return^ vide the case of the King 
 V, Penelope Smith,* where a father having sued 
 the Court of King's Bench for a writ of habeas 
 corpus, in order to obtain possession of his son (a 
 boy between 13 and 14), from an aunt who kept 
 him ; the Court refused to determine the 
 right of guardianship, hut set the child at liberty, 
 telling him he might go where he thought fit : on 
 the principle that where the child is of an age 
 TO JUDGE FOR ITSELF, the Court wHl uot dcUver it 
 into the custody of the father. 
 
 For the protection granted to the mothers of 
 illegitimate children, vide the case of ex parte 
 Knee,'\ where the Court held that the mother of 
 an infant illegitimate child was entitled to the 
 custody of it, in preference to the father, although, 
 from his circumstances, he might be better able to 
 educate it. The King v. Hopkins,t in which the 
 Court granted a writ of habeas corpus, to bring 
 up the body of a bastard child, within the age of 
 nurture, for the purpose of restoring it to the 
 
 * 2 Str. 982. 
 t New Rep. p. 148. X 7 East. 579.
 
 CASE OF MRS. GREENHILL, 1835. 73 
 
 custody of the mother, from whose quiet possession 
 it was taken, at one time hy fraud , and afterwards 
 hy force. The King v» Soper,* where, in like 
 manner, the putative father obtained possession 
 of his bastard child by fraud, and the Court 
 ordered it to he returned to the mother ; and the 
 King v. Mosely,! in which the same point was 
 decided. 
 
 * 5 Term Rep. 278. f 5 East, 224. n. 
 
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