LEAVE. FIRST READING. (Hansard, 21 April 1868)

§ MR. SHAW-LEFEVRE

, in rising to ask for leave to bring in a Bill to amend the Law with respect to the Property of Married Women, said that had there been any important Government Bill in the Paper for that evening he should have hesitated, in the present state of the business of the House, to detain it with any statement at the present stage of the Bill which he should ask the leave of the House to bring in; but, as there was nothing of importance, he hoped he might be permitted to take this opportunity of explaining its object. In the able speech of last year in which his hon. Friend the Member for Westminster (Mr. Stuart Mill) advocated the claims of female ratepayers to the suffrage the argument which had most weight with himself, and he believed with many others who voted with him, was that in which he pointed out the grievances resulting to large numbers of married women from the present state of the law relating to their property. He stated that, as a rule, the wealthy classes escape from the operation of the Common Law by means of marriage settlements; but that this course not being open to the poorer classes, they come under the full force of its severity. He said that if women had a share in the return of Members to this House there could not be a doubt that one of the first measures that would be forced upon our attention would be one for 1016 amending this law. The House rejected the claims of the hon. Member, and women would be no better represented in the new House than in the present. It would not therefore be unreasonable that they should take an opportunity of considering the grievances complained of. The Bill which he proposed with this object was almost identical with one which was drought into this House in 1857 by Sir Erskine Perry. That Bill had been prepared, after a long inquiry, by a committee of the Law Amendment Society, of which the noble Lord the Secretary of State for Foreign Affairs was a member, and the right hon. Baronet the Secretary of State for War an active supporter. The Bill was read a second time late in the Session by a majority of 120 to 65; but, notwithstanding this favourable start, nothing more had been done in the matter since that time. It happened that in the same year the Divorce Act was passed; and in the course of it a clause was inserted which, by giving magistrates power to make orders protecting married women from claims on their property and earnings by husbands who had deserted them, remedied to a small degree the evils then complained of. It was thought, he presumed, that, as something had been done, it was not desirable to renew the discussion on the broader question. In the course, however, of the last autumn a very numerous petition was presented to the Law Amendment Society, praying them again to exert themselves on this question, and in consequence another committee was appointed by that learned society, composed of able lawyers and others, who, after an independent inquiry, came to the same opinion as the previous one. It was at the invitation of that society that he now proposed the Bill. Before stating its purport he must ask the indulgence of the House while he stated briefly the effect of the law which was complained of. If he wished tersely and accurately to describe the present state of the Common Law, which regulates the status of nineteen out of twenty marriages in this country, he could not do better than take the words of Shakespeare, in which, when Portia gives her hand to Bassanio, she says— Myself, and what is mine, to you and yours Is now converted: but now I was the lord Of this fair mansion, master of my servants, Queen o'er myself; and even now, but now, This house, these servants, and this same myself Are yours, my lord. 1017 That, which was then a true description of the Common Law, was true to this day. Marriage, in fact, operated as an absolute gift to the husband of all that the wife had or which would come to her during marriage. It was true that in the case of real property the husband could not dispose of it without the wife's consent; but he received the rents during their joint lives, and might dispose of this interest. With respect to her leasehold and personal property, it was absolutely at her husband's disposal, and if he was reckless or extravagant she had no means whatever of restraining his expenditure. If, in order to provide against penury, she earned any money by her labour, all she earned became the property of her husband, and all her savings belonged to her husband. It would be found, on looking at the depositors' books of the Post Office Savings Banks that a notice was attached to them stating that, although money would be received from married women, it would be paid over to their husbands on application. The husband did as he thought fit with her property, as, indeed, with his own; he was subject to no control on her part; if he was unfortunate it went to his creditors; if he was reckless she could not restrain him. Indeed, at Common Law the wife had no separate existence from that of her husband. She could not contract, or sue or be sued. She and her husband were considered as one person; but that person was not a combination of the two, but was represented by the husband alone. Blackstone, after stating the effect of the Common Law, remarked that the very disabilities to which women were subjected showed how great favourites they were to the law. No women, he thought, would agree to that. Nor, in fact, did the Court of Equity. It would be easy out of the practice and judgments of the Judges in Equity to pronounce the condemnation of the Common Law which it deserved. At what time the Equity Judges first introduced these exceptions it was now difficult to trace; whether it was due to the old ecclesiastical Chancellors or to the earlier lay Chancellors, like Lord Ellesmere and Lord Nottingham, who first transplanted some of the more equitable doctrines of the Civil Law, we could not now tell. All that we could say was, that from a very early date equity had recognized the separate existence of the married woman and the possibility of her having a separate estate. If Shakespeare had lived in the present day he would probably 1018 not have described the high-spirited, noble, and wealthy Portia as so completely handing over herself and her property to her husband; she would have made favourable arrangements for herself, and by means of marriage settlements and trustees have provided for a separate estate during marriage, free from her husband's control. It would not be uninteresting if he were to point out the various stages by which the Courts of Equity have advanced towards carrying out a more just policy to married women. They began by recognizing the fact that through trustees a separate estate could be secured to the wife free from the control of the husband; they then went a little further, and conceded to her what was called an equity to a settlement—that was, in the case of any money coming to her after marriage, they recognized that in certain cases the wife was entitled to a portion of this to her separate use, so as to secure her against her husband's improvidence. At the same time, they had proceeded very timidly and cautiously, not liking to give her all. By way of illustration he gave two cases; in one, a married woman, whose husband had become insolvent, and who was utterly unprovided for, became entitled as next of kin to £1,000. She applied to the Court of Chancery to have it settled to her separate use, free from her husband's creditors. Lord St. Leonards would not give her the whole of it; he directed £600 to be given to the wife and £400 to the creditors, who, he said, with curious logic, were entitled also to some compassion for their wives and children. In another case a husband had deserted his wife, leaving her unprovided for; he was living with another woman, under circumstances which made it impossible to suppose that he could ever return to his wife. The wife became entitled to £6,000, and applied to have the whole settled upon herself; the Court would not give her the whole, but directed one-fourth of the sum to be paid to the scoundrel who was her husband. Lord Cottenham in a case before him stated the grounds for giving a wife what is called her equity to a settlement in a way which clearly showed how inadequate the process of equity is for really dealing with the case. Lord Cottenham said— The Common Law gives to the husband the property of the wife, upon the ground that he is liable to maintain her, and makes no provision for the event of his failing or becoming unable to perform that duty. If the property be attainable at law 1019 by the husband or his assignee at law, the severity of this law must prevail; but if it cannot be reached otherwise than by the interposition of this Court, equity, though it follows the law, and therefore gives to the husband or his assignee the life estate of the wife, yet withholds its assistance for that purpose, until it has secured to the wife the means of subsistence; it refuses to hand over to the assignees of the husband the income of the property which the law intended for the maintenance of both. The Courts of Equity had not only given to the wife her equity to a settlement, and recognized the possibility of her having a separate estate; but they had given her in respect of her separate estate all the incidents attaching to property, the right to contract with respect to it, and to sue and be sued in the Courts of Equity. A woman in equity could be a separate trader; she could also sue her husband in equity; and the Court would in some cases hold him to be a trustee for her, and compel him to do what was right. Through these decisions of Chancery a system had grown up, under which, by virtue of marriage settlements, the wealthy classes, almost without exception, escaped from the operation of the Common Law. No man of position or wealth would dream of allowing his daughter to marry under the simple condition of the Common Law, no matter how favourable appearances might be. He would very properly insist upon a marriage settlement, to secure her against the husband's misfortune or neglect. If the lady were wealthy a portion of her fortune would be settled on her to her separate use. It rarely happened in the upper classes, therefore, that a wife found herself under the provision of the Common Law only; but exceptional cases were sufficient to condemn that law, and he presumed few persons would fail to recollect some case of hardship to married women, even among the wealthy. The very fact that the wealthy as a rule set aside the law was the best evidence that they were not satisfied with it. But if this were so with the wealthy, far more so was it with the humbler classes. It was universally admitted that marriage settlements and trusteeships were quite inapplicable to the case of very small fortunes, or to cases where women were earning small incomes by professions or by wages. The result was that these people were left without any protection from the effect of the Common Law, and the consequences were often disastrous. If the marriage turned out well, if the husband were prudent, trustworthy, sober and kind, 1020 no harm resulted; but if he proved reckless, improvident, vicious, self-indulgent, drunken, or even only unfortunate, everything the wife had would be swallowed up, and her position would become one of great hardship. The fact that the husband had uncontrolled property in his wife's savings and earnings was then the fruitful source of wretchedness. It often acted as an inducement to the husband to become idle or drunken; it prevented the wife having that moral control over him which she might otherwise have; it sometimes took from the wife the motive for exertion, and urged the family downward in its career of misery. The Census showed that out of 3,200,000 wives in this country upwards of 800,000 were employed in professions and trades of various kinds. Almost without exception these persons were without the protection from the Common Law which the wealthy had found so necessary; their earnings belonged to their husbands and not to themselves. Yet it seemed that what a woman earned by her own exertions ought to be far better secured to her than anything even which comes to her by bequest or descent. If we reflected for a moment upon the number of those women who, having made an unfortunate choice, found themselves bound for life to bad husbands, some idea might be gained of the amount of unhappiness and wretchedness resulting from the operation of the Common Law, unhappiness which might be greatly alleviated, though not perhaps removed, by its change. There was, perhaps, no one in the House who had not become acquainted with some case of peculiar hardship. He could mention many, but would refer only to two. In one case a wife who earned money by her own work had, unknown to her husband, put by a little store in the savings bank against a bad day; her husband, a dissipated, improvident man, suspecting the fact, tested his wife by suddenly saying to her, "Do you know the savings bank has failed?" The poor woman fainted from the shock, and her husband immediately went off and drew out her money. In another case, which he had been told was very common, a married woman, who was clever and industrious and could easily earn money, had for a a husband an engineer on board a man-of-war, whose practice it was to come back to his wife after his cruize, and in a few weeks to clear his wife out by living upon her savings and the proceeds of a sale of her small stock in trade. As he was not cruel 1021 to her within the meaning of the law, and as his absence on a cruize could not be deemed desertion, she could get no reparation; she had no resource but to submit to his periodical visitation. He would not multiply cases; they were matter of common knowledge, and he was certain there was no statesman, philosopher, or lawyer who, after a candid consideration, would not admit the Common Law of this country was unjust in its operation upon large classes of people. The only question was whether to proceed further in the direction of the exceptional provisions of equity, eating into the principle of the Common Law, but leaving that law still in the fundamental groundwork of the system, or whether to make a change in the Common Law itself, and to give to the married woman an absolute property in her own fortune, earnings, and savings. He believed the latter was the true course to take. The whole process of equity was really inapplicable to the great bulk of the people; the law itself should deal equitably with the case of married women. It was not sufficient to meet the case by expedients, which could only be brought into operation by ante-nuptial arrangements or by special applications. It was often too late already when these applications were made; and the great bulk of people did not understand or could not get the legal advice to enable them to take advantage of them. The Bill, therefore, which he ventured to introduce proposed to make a change in the Common Law itself, so as to prevent in the future marriage operating as a transfer of the wife's fortune to the husband. In the case of existing marriages it would secure to the wife any future earnings which she might make or any property which she might hereafter become entitled to, and in respect of such separate property the wife would be able to contract and to sue and be sued in the Law Courts as if she were a single woman. The change might seem a startling one, but it would not really be very great. He believed it would make very little difference with the wealthy; it was not proposed to interfere with the power to make marriage settlements, but in those exceptional cases where no settlement was made the wife would have there her own fortune, just as if it had been settled to her separate use under a marriage settlement. It was with the humbler classes that the change would be the greatest, and it was there the change was most needed. He would not on the present occasion deal 1022 with all the objections which would probably be raised. There were two points, however, on which it was advisable to say a few words. It would be urged that, as the husband was responsible for the maintenance of his wife and children, it was only right that he should have his wife's fortune. He had already shown that there was no legal means of enforcing this obligation of preventing him from disposing of the means of fulfilling it, and that equity gave this reason for its interference; but even where the husband did not part with his wife's money, but retained it in his hands, his legal obligation to maintain her was of the most shadowy character. It had sometimes been thought that the wife, when living with her husband, had a right to pledge his credit with tradesmen for the supply of necessaries according to her station in life, but a recent decision had shown that even this was not so. The wife was now held to be only his agent for ordering goods of tradesmen as long as he pleased; and if he withdrew his authority, even without public notice, if he only forbade her to order goods or to pledge his credit, she had no right to do so. The ground on which this was held was that the husband ought to be absolute master of his own style of living, and that it ought not to be left to a jury to say how his wife should dress. The husband might treat her, in fact, as Petruchio did Katherine. Sir William Erle said— If the wife, taking up goods from a tradesman, can make her husband's liability depend on the estimate by a jury of his estate and degree, the law would practically compel him to regulate his expense by a standard to be set up by that jury. The reasoning seemed sound, but the result was that the husband's legal liability to maintain his wife was reduced to the merest shadow; if she lived apart from him, without any fault of her own, then it seemed that he was liable to tradesmen who supplied her with necessaries; but she had no direct remedy against him, and this circuitous process was of very little value to the woman. He had received information from two of the leading magistrates in London, showing what hardship often resulted to women who had been deserted by their husbands and who refused to support them. There was no means of getting at them, even though they might be making good wages in the same parish in which their wives were receiving parochial relief. If the legal responsibility for the 1023 wife were small, it was still less in the case of the children. However plain the moral obligation" (said Mr. Justice Blackstone) "that every man shall provide for those descended from his loins, it is one which the Common Law seems to have given no means of enforcing. The Statute Law had done no more except to provide against the case of the father allowing his children to fall upon the parish; if he did this, he was liable to be punished criminally. Short of this, he might do as he liked with his children; he was not bound to educate them, or feed, or dress them after any style appropriate to his own or his wife's fortune. Where the law had been content with the moral obligation, it was obvious that the children would be as well off where the mother shared that moral obligation as where it fell only on the father, and therefore, on the one hand, no argument could be founded on this in support of the present law; and, on the other hand, it was not necessary in any change that was made to provide specially that the wife should be liable to contribute; it might be properly left to moral obligations. Then, again, it would be said that it would be fraught with danger to teach married couples that there might be a separation of interests, and that to introduce into any home the principle of separate rights, interests, and a separate legal existence would detract from the sacredness of marriage. That argument, if good at all, was good against the whole doctrine of separate estate as now allowed by Chancery under marriage settlements. It did not seem that in the case of the wealthy they attached much importance to this argument; nor could he ascertain that any real harm resulted from those cases within his knowledge where the wife has a separate estate; but we had a far wider experience to draw upon than the comparatively few such cases in this country. In the United States for the last twenty-five years the various States had been legislating in the direction which he advocated. They inherited from us our Common Law, but they had not respected it as we had. Some of the States at once went the full length of the present Bill; others proceeded by slow degrees, but now, almost without exception, married women had their separate property throughout the States. Vermont adopted this in 1847; New York made a step towards it in 1840, and completed it in 1860; Pennsylvania in 1848; Massachu- 1024 setts in 1855; and the experience everywhere of the results had been favourable. The change had given great satisfaction. An eminent lawyer, Mr. Dudley Field, who was mainly concerned in drawing up the Code of New York, speaking on this point in public, said he did not believe there was a single person in his State who wished to return to the Common Law; every change had been in the direction of carrying out the new principle still further. It had not been found that any evil had resulted; the sanctity of marriage had not been impaired; the homes of New England were as happy as they were before, while cases of great hardship had been redressed, and the status of women, particularly in the lower classes, had been greatly improved. If he wanted further authority, he could quote from the recent Reports of the Indian Law Commission, composed of the most able lawyers in the country, Lord Romilly, Sir William Erle, Mr. Justice Willes, Sir Edward Ryan, the right hon. Gentleman the Member for Calne (Mr. Lowe), and others. They were instructed to frame a code of Civil Law framed on English principles, but with such alterations as they thought fit — a code which would form the general law of all classes in India, subject to the special customs of certain sects. [Mr. LOWE: Not of the Hindoos and Mahommedans; to the Europeans and Eurasians it will apply.] These Commissioners, after careful discussion, rejected the Common Law of England, and had given to married women their separate property and a right to contract. These recommendations had already passed into law. Could any one doubt if it were referred to the same Commissioners what ought to be the Law of England that they would report to the same effect? In conclusion, he would only add that just as there was no civilized country in the world where the law was so unfavourable to married women in respect of their property as in England, so he believed that there was no country where so much good was to be achieved in raising the status of women of the lower classes by giving to them their earnings and their savings. He did not take any sentimental view of this question; he refrained from expressing his opinion whether women were or were not the equals of men. He put the question upon expediency and experience. Let them have as far as possible fair play, remove unequal legislation, and women would then speedily find their true level, whatever that might be, for which by nature they were intended.