1839 Custody of Children Act
In June 1836 George Norton brought a case for criminal conversation (adultery) between his wife, Caroline Norton, and William Lamb, Lord Melbourne, the Prime Minister, to the courts, suing Melbourne for £10,000 in damages. The case began on 22nd June 1836. Two of George Norton's servants gave evidence that they believed Caroline and Lord Melbourne had been having an affair. Caroline had been prepared for lies but what appalled her was "the loathsome coarseness and invention of circumstances which made me a shameless wretch." One maid testified that she had been "painting her face and sinning with various gentlemen" in the same week that she gave birth to her third child. (1)
Caroline Norton and Lord Melbourne
Three letters written by Melbourne to Caroline were presented in court. The contents of the three letters were very brief: (i) "I will call about half past four". (ii) "How are you? I shall not be able to come today. I shall tomorrow." (iii) "No house today. I will call after the levee. If you wish it later let me know. I will then explain about going to Vauxhall." Sir W. Follett, George Norton's counsel, argued that these letters showed "a great and unwarrantable degree of affection, because they did not begin and end with the words My dear Mrs. Norton."
One pamphlet reported: "One of the servants had seen kisses pass between the parties. She had seen Mrs Norton's arm around Lord Melbourne's neck - had seen her hand upon his knee, and herself kneeling in a posture. In that room (her bedroom) Mrs Norton has been seen lying on the floor, her clothes in a position to expose her person. There are other things too which it is my faithful duty to disclose. I allude to the marks from the consequences of the intercourse between the two parties. I will show you that these marks were seen upon the linen of Mrs Norton." (2)
The jury was unimpressed with the evidence presented in court and Follett's constant demands for the "payment of damages to his client" and Norton's witnesses were unreliable. Without calling any of the witnesses who would have proved Caroline's innocence the jury threw the case out. However, the case had destroyed Caroline's reputation and ruined and her friendship with Lord Melbourne. He refused to see her and Caroline wrote to him that it had destroyed her hope of "quietly taking my place in the past with your wife Mrs Lamb." (3)
Despite Norton's defeat in court, he still had the power to deny Caroline access to her children. She pointed out: "After the adultery trial was over, I learnt the law as to my children - that the right was with the father; that neither my innocence nor his guilt could alter it; that not even his giving them into the hands of a mistress, would give me any claim to their custody. The eldest was but six years old, the second four, the youngest two and a half, when we were parted. I wrote, therefore, and petitioned the father and husband in whose power I was, for leave to see them - for leave to keep them, till they were a little older. Mr. Norton's answer was, that I should not have them; that if I wanted to see them, I might have an interview with them at the chambers of his attorney. What I suffered on my children's account, none will ever know or measure. Mr. Norton held my children as hostages, he felt that while he had them, he still had power over me that nothing could control." (4)
Caroline wrote to Lord Melbourne, who continued to refuse to see her in case it caused another political scandal: "God forgive you, for I do believe no one, young or old, ever loved another better than I loved you... I will do nothing foolish or indiscreet - depend on it - either way it is all a blank to me. I don't much care how it ends... I have always the memory of how you received me that day, and I have the conviction that I have no further power than he allows me, over my boys. You and they were my interests in life. No future can ever wipe out the past - nor renew it." (5)
Sir Thomas Talfourd
Caroline wrote a pamphlet explaining the unfairness of this entitled The Natural Claim of a Mother to the Custody of her Children as affected by the Common Law Rights of the Father (1837): Caroline argued that under the present law, a father had absolute rights and a mother no rights at all, whatever the behaviour of the husband. In fact, the law gave the husband the legal right to desert his wife and hand over his children to his mistress. For the first time in history, a woman had openly challenged this law that discriminated against women. (6)
Caroline Norton now began a campaign to get the law changed. Sir Thomas Talfourd, the MP for Reading agreed to Caroline's request to introduce a bill into Parliament which allowed mothers, against whom adultery had not been proved, to have the custody of children under seven, with rights of access to older children. "He was driven to do this by some personal experiences of his own, for in the course of his professional career he had twice been counsel for husbands resisting the claims of their wives, and had both times won his case in accordance with law and in violation of his sense of justice." (7)
Talfourd told Caroline about the case of Mrs Greenhill, "a young woman of irreproachable virtue". A mother of three daughters aged two to six, she found out her husband was living in adultery with another woman. She applied to the Ecclesiastical Court for a divorce. At the courts of King's Bench it was decided that she wife must not only deliver up the children, but that the husband had a right to debar the wife of all access to them. The Vice-Chancellor said that "however bad and immoral Mr Greenhill's conduct might be... the Court of Chancery had no authority to interfere with the common law right of the father, and no power to order that Mrs. Greenhill should even see her children". (8)
Talfourd highlighted the Greenhill case in the debate that took place over his proposed legislation. The bill was passed in the House of Commons in May 1838 by 91 to 17 votes (a very small attendance in a house of 656 members). Lord Thomas Denman, who was also the judge in the Greenhill case, made a passionate speech in favour of the bill in the House of Lords. Denman argued: "In the case of King v Greenhill, which was decided in 1836 before myself and the rest of the judges of the Court of the King's Bench, I believe there was not one judge who did not feel ashamed of the state of the law, and that it was such as to render it odious in the eyes of the country." (9)
Despite this speech the House of Lords rejected the bill by two votes. Very few members bothered to attend the debate that took place in the early hours of the morning. Caroline Norton remarked bitterly: "You cannot get Peers to sit up to three in the morning listening to the wrongs of separated wives." (10)
Talfourd was disgusted by the vote and published this response: "Because nature and reason point out the mother as the proper guardian of her infant child, and to enable a profligate, tyrannical, or irritated husband to deny her, at his sole and uncontrolled caprice, all access to her children, seems to me contrary to justice, revolting to humanity, and destructive of those maternal and filial affections which are among the best and surest cements of society." (11)
Caroline Norton now wrote another pamphlet, A Plain Letter to the Lord Chancellor on the Law of Custody of Infants. A copy was sent to every member of Parliament and in 1839 Talfourd tried again. The opponents of the proposed legislation spread rumours that Talfourd and Caroline "were lovers and that he had only became involved with the issue because of their sexual intimacy". (12)
The journal, The British and Foreign Review published a long and insulting attack in which it called Caroline Norton a "she devil" and a "she beast" and "coupled her name with Mr Talfourd in a most impertinent way." Norton wanted to prepare a legal action only to discover that as a married woman, she could not sue. She later wrote: "I have learned the law respecting married women piecemeal, by suffering every one of its defects of protection". (13)
1839 Custody of Children Act
Sir Thomas Talfourd reintroduced the bill in 1839. It was passed by the Commons and this time he received the help in the Lords from John Copley, 1st Baron Lyndhurst, and the Lord Chancellor. "By the law of England, as it now stood, the father had an absolute right to the custody of his children, and to take them from the mother. However pure might be the conduct of the mother - however amiable, however correct in all the relations of life, the father might, if he thought proper, exclude her from all access to the children, and might do this from the most corrupt motives. He might be a man of the most profligate habits; for the purpose of extorting money, or in order to induce her to concede to his profligate conduct, he might exclude her from all access to their common children, and the course of law would afford her no redress: That was the state of the law as it at present existed. Need he state that it was a cruel law - that it was unnatural - that it was tyrannous - that it was unjust? When he said that it was a cruel law, who was it that knew the love a mother had to her offspring, the delight she received in their smiles, the interest she took in all their sorrows, and the happiness she had in the superintendence of them; who did not agree with him in saying, that to deprive her of all this from base motives was one of the most cruel inflictions that could be put on her?" (14)
The main opposition came from George Norton's friend, William Best, 1st Lord Wynford. He argued that the proposed bill went against the best interests of men: "To give the custody of the child to the father, and to allow access to it by the mother, was to injure the child for it was natural to expect that the mother would not instill into the child any respect for the husband whom she might hate or despise. The effects of such a system would be most mischevious to the child, and would prevent its being properly brought up. If the husband was a bad man, the access to the children might not do harm, but where the fault lay with the wife, or where she was of a bad disposition, she could seriously injure its future prospects.... In his belief, where the measure, as it stood, would relieve one woman, it would ruin 100 children". (15)
Despite the protests of some politicians, the Custody of Children Act was passed in August 1839. "This act gave custody of children under seven to the mother (provided she had not been proven in court to have committed adultery) and established the right of the non-custodial parent to access to the child. The act was the first piece of legislation to undermine the patriarchal structures of English law and has subsequently been hailed as the first success of British feminism in gaining equal rights for women". (16)
Primary Sources
(1) Extraordinary Trial, Norton v Viscount Melbourne for Criminal Conversation (22nd June, 1836)
One of the servants had seen kisses pass between the parties. She had seen Mrs Norton's arm around Lord Melbourne's neck - had seen her hand upon his knee, and herself kneeling in a posture. In that room (her bedroom) Mrs Norton has been seen lying on the floor, her clothes in a position to expose her person. There are other things too which it is my faithful duty to disclose. I allude to the marks from the consequences of the intercourse between the two parties. I will show you that these marks were seen upon the linen of Mrs Norton.
(2) In 1838 during her campaign for the Custody of Children Act Caroline Norton wrote to her friend Mary Shelley about the approach that should be taken in the letters they were writing to MPs. Caroline warned against mentioning her father, William Godwin.
As to petitioning, no one dislikes begging more than I do, especially when one begs for what seems mere justice; but I have long observed that though people will resist claims (however just), they like to do favours. Therefore, when I beg I am a crawling lizard, a humble toad, a brown snake in cold weather. My meaning is, that if one asks at all, one should rather think of the person written to than one's own feelings. Do not write as "the daughter of the late Mr. Godwin". Press not on the politics of Mr. Godwin (for God knows how much gratitude for that ever survives).
(3) Caroline Norton, English Laws for Women in the Nineteenth Century (1854)
After the adultery trial was over, I learnt the law as to my children - that the right was with the father; that neither my innocence nor his guilt could alter it; that not even his giving them into the hands of a mistress, would give me any claim to their custody. The eldest was but six years old, the second four, the youngest two and a half, when we were parted. I wrote, therefore, and petitioned the father and husband in whose power I was, for leave to see them - for leave to keep them, till they were a little older. Mr. Norton's answer was, that I should not have them; that if I wanted to see them, I might have an interview with them at the chambers of his attorney. What I suffered on my children's account, none will ever know or measure. Mr. Norton held my children as hostages, he felt that while he had them, he still had power over me that nothing could control.
My youngest child, then a boy of eight year old, left without care or overlooking, rode out with a brother but little older than himself, was thrown, carried to the house of a country neighbour. Mr. Norton allowed the child to lie ill for a week - indeed to be at death's door - before he sent to inform me. Lady Kelly (who was an utter stranger to me) met me at the railway station. I said "I am here - is my boy better?" "No", she said "he is not better - he is dead." And I found, instead of a child, a corpse already coffined."
(4) Claire Tomalin, Several Strangers: Writing from Three Decades (1999)
Lord Melbourne was nearly thirty years her senior; his wife (Caroline Lamb) had lately died; and he was a man peculiarly susceptible to the delights of a quasi-paternal relationship. Caroline Norton offered him beauty, charm, a sharp interest in everything that interested him and something like an eighteenth-century sense of fun; more, she idealized him for his urbanity, his power, wealth and well-preserved good looks. "Dearest Lord," she wrote when they were apart; or "Will of the Wisp", when his expected letter failed; "Pet Lamb", she told him, was her sister's name for him. And he wrote to her, "I have been in despair today at not seeing you."
Crisis came in 1836 when the petty but violent quarrels between Mr and Mrs Norton - unconnected with Lord Melbourne - became too much for either of them to bear, and she left home. George removed her three sons and, probably egged on by Tory advisers, brought a suit against the Prime Minister for criminal conversation (i.e., adultery) with Caroline. She found herself deprived of her children, whom she loved passionately, and equally deprived of Lord Melbourne, who, from the moment scandal threatened, withdrew, advising her (by post for the most part) to return to her husband, terrified lest she should try to compromise him.
(5) John Copley, 1st Baron Lyndhurst, speech in the House of Lords (18th July, 1839)
The bill had come again up to their Lordships, having passed the House of Commons by a majority greater than on a former occasion; and he thought, therefore, considering the sanction it had received - considering that their Lordships could hardly be considered as having expressed any opinion upon it, he came to the consideration of this question without any prejudice against it, and he was sure that on entering upon the subject it would receive their most anxious consideration. The first point to consider was, what was the state of the law with respect to the subject to which this bill applied? By the law of England, as it now stood, the father had an absolute right to the custody of his children, and to take them from the mother. However pure might be the conduct of the mother - however amiable, however correct in all the relations of life, the father might, if he thought proper, exclude her from all access to the children, and might do this from the most corrupt motives. He might be a man of the most profligate habits; for the purpose of extorting money, or in order to induce her to concede to his profligate conduct, he might exclude her from all access to their common children, and the course of law would afford her no redress: That was the state of the law as it at present existed. Need he state that it was a cruel law - that it was unnatural - that it was tyrannous - that it was unjust? When he said that it was a cruel law, who was it that knew the love a mother had to her offspring, the delight she received in their smiles, the interest she took in all their sorrows, and the happiness she had in the superintendence of them; who did not agree with him in saying, that to deprive her of all this from base motives was one of the most cruel inflictions that could be put on her?
(6) William Best, 1st Lord Wynford, speech in the House of Lords (18th July, 1839)
His noble and learned Friend had truly said, that the custody of the children belonged by law to the father. That was a wise law, for the father was responsible for the rearing up of the child; but when unhappy differences separated the father and mother, to give the custody of the child to the father, and to allow access to it by the mother, was to injure the child for it was natural to expect that the mother would not instill into the child any respect for the husband whom she might hate or despise. The effects of such a system would be most mischevious to the child, and would prevent its being properly brought up. If the husband was a bad man, the access to the children might not do harm, but where the fault lay with the wife, or where she was of a bad disposition, she could seriously injure its future prospects. These were objections which would prevent him giving his support to the bill in its present shape. If, instead of this bill, his noble and learned Friend would bring in a bill to lessen the expense of debarring the profligate father from exercising authority over his children, he would readily join his noble and learned Friend; but he thought they ought also to prevent the improper access of an angry woman to the children of her husband. In his belief, where the measure, as it stood, would relieve one woman, it would ruin 100 children.
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