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under the powers of the Court. In a case where £500 damages were given by the jury to the husband, the petitioner, he was ordered to assign it to a trustee for the child of the marriage, and if the child died under twenty-one, then the husband was to have the money. Where, upon a petition by a husband for a divorce on account of the wife's adultery and for damages, he obtained a verdict and decree and £3500 damages, and the wife did not appear, but the co-respondent raised a case of cruelty against the husband which he failed to establish, but the conduct of the husband could hardly, the learned judge said, have commended itself to any who heard the evidence; the damages, after paying the husband's surplus costs, were settled on the wife dum casta vixerit, and for life, and after her death, or breach of the condition, the fund was to devolve upon the two children of the marriage. Nothing can be more revolting. One more decision on this head will show you how the jurisdiction is exercised. Where a husband obtained a divorce against his wife for adultery, with £5000 damages from the co-respondent, the Court allotted £1000 to the husband to pay his extra costs; an annuity to be bought for the wife for her life, and to be paid to her as long as she should lead a moral and respectable life, but should she not do so, her interest to the two daughters of the marriage, who persisted in living with her against the wish of their father; the residue to be invested in purchases of equal life annuities for each of the daughters, without the power of anticipation. These instances show how impossible it is to dispose of the damages without providing for the husband and the children, and handing down evidence of the mother's misconduct! Large damages, £1500, were given where the husband was free from blame, and advantage was taken of his absence on duty abroad, and

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AGREEMENT FOR SEPARATION.

his wife in England received an adequate allowance from her husband, and kept up an affectionate correspondence with him whilst the criminal intimacy continued, and she ultimately lived openly with her paramour.

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

But the agreement for a separation must not contain any stipulation contrary to public policy. The hus

CUSTODY AND EDUCATION OF CHILDREN.

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band, for example, cannot agree to divest himself of his paternal rights, or stipulate to relieve himself from his parental obligations; he cannot bind himself to place his children entirely in their mother's custody, and to restrict his power of selecting such a school for them as she as well as himself shall consent to; nor can he leave the sole and exclusive superintendence and management of the education of a child to the mother. It would require a strong case to support such a contract, but if the father's conduct renders it improper to allow him to have the control of his children, the Court would not relieve him from his contract. This is an exception to the general rule.

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

LETTER XVII.

You have already seen that the Court of Divorce has power over the children of the marriage where a judicial separation or a divorce takes place. But this is not the only instance in which a father's power over his children is interfered with. A remedy is afforded by statute* to mothers where their husbands deny them access to their infant children, or withhold from them the care of those under seven years of age. The authority is given to the Court of Chancery, who, on the mother's petition, may, in the father's lifetime, or after his decease as against the guardian appointed by him, make such order as may seem fit for the access of the mother to such infants at such times, and subject to such regulation as may be deemed just and convenient; and if such infants are under seven years of age, may order them to be delivered to and to remain in the custody of the mother until attaining such age, subject to such regulations as shall be deemed convenient and just; but these provisions do not extend to a mother against whom adultery has been established. As Lord Cottenham observed, the object of the Act was to protect mothers from the tyranny of husbands who ill-use them; it gives the Court the power of interfering when the maternal feelings are tortured [by the threat to take their children from them or to deny them access to them], for the purpose of obtaining anything like an unfair advantage over the mother. But no order can be made in a mother's favour under this Act if adultery has been * 2 & 3 Vict., c. 54.

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established against her by judicial decision, and the Divorce Court follows this law; and when the wife has been proved to have been guilty of adultery, the Court will not order that she have access to or the custody of her children. The knowledge of this law might deter many a woman from crime, who, although she has ceased to love her husband, is not devoid of maternal tenderness.

Where a child was seven months old, and the wife left her husband's house and her child in it, and instituted a suit for a judicial separation on the ground of cruelty, and then asked for the custody of her child, her application was refused, for by the common law the father had a right to the custody of the child. The statute gave to the Court discretionary power to make orders for the custody of children pendente liti, and these powers are the same as are given to the Court by Sergeant Talfourd's Act. But that discretion is to be exercised keeping in view the prima facie legal right of the father; and to take that away, the mother must establish something more than the mere legal right. As neither mother nor child was suffering from the separation, the Court declined to remove the child. But the wife was allowed access to the child, and the husband was to undertake not to remove the child, as there was some suspicion of his intending to take it abroad.

Besides those statutory powers, the Court of Chancery, in exercise of its own jurisdiction, will take the custody of his children from a father on the ground. of his impiety and irreligion, or of his profligacy, adultery, and profaneness, it being both the right and duty of the Court to remove the children from the contamination to which they would be exposed from such examples. The Court will also interfere where the father, although he may not in the smallest degree tend