Chapter V: Mothers’ Rights

“More and more I am sure, and physiologists are becoming more sure
also, that the _mother_ is the more important, and in the case of
the _boy_ everything; the child _is_ the mother, and her rights,
opinions, feelings, even fancies about him, ought to be first
regarded.”

_Letters and Memories of Charles Kingsley_, II. 252.

The earliest case on the books about the right of a mother to the custody of her child is that tried by Solomon in the porch of judgment.

Two mothers, you will remember, were contending for the ownership of a baby, and the learned judge made a great name for himself by the sensible, but irregular, procedure which he adopted to spot the real mother. Even in those early days a display of common sense upon the bench created considerable public amazement, and the affair is spoken of to this day.

The noteworthy point of the case for us is that the two lady litigants were unmarried mothers. From the days of Solomon until to-day it is only the unmarried mother who has rights of custody in her child.

But if the married woman has few mother’s rights she has at least certain duties, liabilities, and want of rights which need sympathetic consideration from those who desire to remodel the Law on lines of greater liberty and justice to Woman.

We have spoken of the family as the unit of our national life. Now a family consists of a man, a woman, and a child, with power to add to their number. Of these three elements the man is undoubtedly the predominant partner, having rights over the other two of a very extensive and far-reaching character.

The child, being naturally dependent and subject to the care of its parents, can in the nature of things have but slender individual rights, though the State, as trustee for the child, takes care that it receives a certain amount of food, clothing, and education either from its parents or from the community.

The Woman of the family alone seems to have the scantiest rights, and what she has are of very modern growth. The Law never seems to have understood that

The beauty and the training of a child
Is woman’s wisdom.

Whenever there has been a difference of opinion between a married man and woman as to the upbringing of their child, however young it might be, the Law has always sided with the man, and ignored the Woman.

This, of course, could not go on for ever, and the legal problem of recent years has been to hold the scales of justice fairly between the man and the woman as to the management of the child in those unfortunate families where they are unable to settle these things for themselves.

Stowed away in some old law reports of 1836 you may read a sad story of the Law and the Woman that seems to have touched the public conscience and started a movement of statutory reform that is still dragging its slow length along the highway of our social life.

Mr. and Mrs. Greenhill were a young married couple, well-to-do, with a place in Somersetshire, and three little girls aged 5½, 4½, and 2½. They went in the summer to Weymouth, and here Mr. Greenhill had a yacht, in which he sailed away on pleasure trips.

His absences became longer and longer, until some time in September he sailed to Portsmouth, and thence to London, and from information received Mrs. Greenhill became aware that he had gone away with the ubiquitous scarlet lady.

Left to herself Mrs. Greenhill and her three little girls retreated to her mother’s house at Exeter, whilst Mr. Greenhill and the aforesaid lady continued living in London under the style of Mr. and Mrs. Greenhill.

One might have thought that any man of self-respect, having by his own misfeasance wrecked the family life and broken up the home, would have at least lain low and said nothing. But that was not Mr. Greenhill’s way. On the contrary, sparing an hour or two from his criminal conversations with the scarlet lady, he walked over to his solicitor to consult him about the custody of the children he had deserted.

The law he found to be in a thoroughly satisfactory state. A _habeas corpus_ was issued, and poor Mrs. Greenhill had to bring her three little children up to London to submit to the judgment of the court. The case was not arguable. The common law was well known, and their lordships smiled at the simplicity of the woman who contested such an obvious and simple case.

“There was only one proper custody,” said Lord Denman, “and that undoubtedly is the custody of the father.” Another learned judge put it more brutally, and probably thereby did something for reform. “If,” said he, “a father and mother disagreed about the disposal of their children, and each of the parents appeared before the court and claimed the custody, there is no doubt that the court would give it to the father; _the mother’s application would not be attended to_.”

Up to the beginning of the reign of the late Queen Victoria, that was a fair statement of a mother’s right to her babies under the grand old common law of England. She had no rights whatever except a right of audience to a court that laid it down as a rule of law that as between herself and her husband her applications would not even be attended to.

Blackstone, who had a poetical mind that occasionally expressed itself in second rate verses, puts the mother’s rights to her child very prettily. During the father’s life, he says: “The mother as such is entitled to no power, but only reverence and respect.” What reverence and respect did the Law secure to the mother in Mrs. Greenhill’s case?

Friend Blackstone, like our old friend Silas Wegg, is, I suspect, dropping into poetry when he talks about “reverence and respect” as the legal rights of a mother. At common law the mother had no rights whatever, and Blackstone knew that very well. Let us hope that it was a sense of shame at the condition of the law that led him into the artless alliteration of “reverence and respect.”

But Mrs. Greenhill did not suffer in vain. When a Parliamentary Minister tells you that it is impossible that any measures can be taken, you generally know that you are within a few fortnights of reform.

When Mr. Justice Littledale said that the law was that a mother’s application for her children could not be attended to, it was obvious that it was time to attend to it.

And so it was. Sergeant Talfourd, that enlightened lawyer and man of letters, endeared to most of us by the living memories he has bequeathed to mankind of his dear friend Charles Lamb, was then Member for Reading. Stirred to indignation and action by this and similar cases, he introduced with success an Infant Custody Bill, known to this day as Talfourd’s Act, which was the forerunner of a series of Statutes giving mothers greater rights in the custody of their young children. Space does not permit a statement of the evolutionary history of these Statutes, but though much has been done the legal question of Mothers’ Rights is not yet finally settled.

Nothing could be more illogical and contradictory than the common law of mother and child, for having decided that the married mother has no rights at all in respect of her children, the Law gives the unmarried mother absolute custody of hers.

The maternal tie that could not be attended to when it was urged before the Courts in Mrs. Greenhill’s case is strictly upheld and respected when it is set up by an unmarried mother. So strong is this rule that if a father wished to educate and maintain an illegitimate child he would not be permitted to do so without the consent of the mother.

Here, in the interests of the children, the law seems as far removed from wisdom as in the case of the wife and mother. An unmarried mother has a right to a certain pittance from the father of the child sufficient to keep it off the rates, and then she has the sole custody of the child and the sole responsibility of its maintenance.

However desirous the father may be to bring the child within the family by marrying the mother, this the English law--despite the better example of our neighbours over the border--will not permit. The father’s interest in the child is strictly limited by law to the payment of a few shillings a week. That done, he has no more responsibility for its upbringing, and no possible control in its future career.

An ancient absurdity of the Law in relation to the children of unmarried women is this, that a man is not allowed to right the wrong he has done to the innocent child by subsequent marriage with the mother. If he marries the mother but a day or two before the child is born the child is legitimate, but, once born a bastard, no power in English Law short of an Act of Parliament can relieve the infant of his unfortunate status.

Although perhaps this is a more serious grievance to the child than to the mother, yet undoubtedly the fact that a man cannot make his child legitimate even when he desires to act rightly, does away with what is a strong human incentive to an act of reparation by the father for the wrong done to the mother of the child. Other countries have recognized this, and the Law is more in accordance with justice and common sense in Scotland and many European countries where marriage places all the children of the man and the woman, whether born before or after wedlock, on the same legal footing.

So unjust has our law been considered by thoughtful and good men of all times that far back in the reign of Henry III we find that the bishops of that day desired to alter it and introduce the canon law rule of legitimation by marriage. Then arose the Knights and Barons in their might and announced to the world at large the great maxim which has been repeated from generation to generation and remains the battle cry of privilege and protection to this day: _Nolumus leges Angliæ mutari._ We are unwilling that the laws of England should be changed. When the good bishops heard this grand old English sentiment they stood repentant and convinced, their proposal was hastily abandoned and they gave up meddling with social reform from that time forward.

The old pagan Common Law of England seems, therefore, to have amounted to this, that in respect of her children a married mother had no rights, and an unmarried mother had absolute rights.

It was obvious that as the importance of healthy children to the State became more fully understood, the legal relationship of mothers and children would have to be reconsidered, and that, at all events, in the earlier years, in the interests of life and health, the mother ought naturally to be the predominant partner in matters of custody and control.

Towards this goal we see the Law making timid steps. Fortunately social well being does not depend altogether on the state of the Law. Common Sense, which is always so much more powerful than Common Law, has in the everyday practice of family life enacted that the mother should have that control and predominance in the nursery that is necessary to the protection of infant life.

Nature is more powerful than Mr. Justice Littledale, and has overruled his lordship by deciding that the mother’s application must be attended to. To-day we see a law passed, with the consent, if not the approbation, of all men, giving the mother rights in a small sum of money which is called a maternity benefit. I like to think that this first little gift of the State to the Mother will prove like the grain of mustard in the parable which will gradually increase a thousandfold the legal provision for infant sustenance and protection.

The chief point to note is that this money is the mother’s money, and here we have the Law for the first time recognizing the mother’s personal right to administer a fund, such as it is, for the benefit of herself and her offspring.

Thus we seem to see the Law rubbing its sleepy eyes, stretching its lazy limbs, and sitting up and taking notice that there are such things as Mothers’ Rights, and making a faint resolution that when it is a little more awake it will really attend to the matter.

There are indeed signs that the world is beginning to understand that if it wants citizens and healthy citizens the Law will have to bestir itself to study the problem of maternity in the human homes of the poorer men and women of the twentieth century. Those among the more fortunate classes who want to realize what this problem really is should study a little volume of letters of working women published by the Women’s Co-operative Guild under the title _Maternity_.

This book brings the average citizen and voter right up against the most important question of this time and all time: “How is the world to be peopled by sane and healthy men and women?” So largely is this matter left to the disastrous and haphazard methods of the ignorant and the careless, that the preventible waste of infant life and the cruel maternal sufferings of poor women have come to be regarded as something ordained for humanity by Providence that it is almost wanting in piety to put an end to. Let us hope that one of the matters that the war will force upon our notice is the necessity for legal protection for child-bearing women and young infants.

Much no doubt can be done and is being done by voluntary work, but the Law must step in and give mothers and expectant mothers certain rights of food, rest, medical treatment and nursing without which they cannot successfully produce sane and healthy children and keep them in being. The problem is mainly an economic one; it will certainly cost more than the thirty pieces of silver we have already voted, but even if it runs into many millions it will be a happy change to be spending our taxes on the making of better lives and fighting battles against ignorance and disease for the benefit of the human race.