§ SIR ERSKINE PERRY
said, he rose pursuant to notice, to call the attention of the House to the present state of the law with regard to the rights of married women. The subject was one which had excited considerable interest out of doors, and during the Session no less than seventy petitions had been presented complaining of the law as it affected the property of married women. Some of those petitions bore the signatures of the most thoughtful portion of society; the most marked one of the whole, perhaps, was the one which he presented before Easter, which was signed by 3,000 women, amongst whom were ladies who had made the present epoch remarkable in the annals of literature. It was only by accident that these ladies had entrusted him with the charge of presenting their views to the House. At the annual meeting of the Law Amendment Society, he spoke a few words on the subject of the rights of married women, and those observations coming to the notice of the memorialists, they determined to entrust their petition to his hands. Neither was it upon any sudden impulse, or without due meditation, that he had ventured to bring this question forward; for in the judicial situation which he had had the honour to hold, the question had often forced itself upon his mind. Having, then, had every opportunity for considering the question, and having most carefully looked into it, he could unhesitatingly pronounce his solemn conviction 1274 that the law of England, as it affected the property of married women, was not only discreditable to the age, but that it demanded immediate alteration. By the old English law there could be no doubt that a wife succeeded on equal terms, with women of other nations, to the common property of her husband; she was entitled to one-third of the land, and one-third of the personal property. The decrees of the legal tribunals of the country, however, had abrogated this old English law, and deprived married women of their rights, while the husband had acquired the right from the same source, of dealing with the property of his wife just as he thought fit. The law had not been changed by any act of the Legislature, but solely by the decisions of the Judges. According to the dictum of the common law, a married woman had no right to personal property, but the Equity Courts recognised and acted upon the very opposite principle. Equity dealt with the personal property of a wife as though she were a single woman, but the common law held that it belonged to the husband. These diametrically opposite views of the law had arisen out of the decisions of different Judges, and the object of his bringing the question now before the House was to elicit an opinion as to which of the two principles was the sound one, as applicable to the case of married women. The rule which enabled families to settle property upon females before marriage was a correct one—it was founded in justice, and useful to society; but while the Legislature admitted the expediency of that law, it was equally incumbent upon them to reconcile the conflicting principles of law and equity which now prevailed with regard to the rights of married women. Now, to what did this conflict between the two classes of Courts tend? Why, to this, that those who are rich, add are able to apply to the Courts of Equity, have the means of defeating the stringent injustice of the common law. It tended, also, to show that for the rich there was one law, and for the poor another; but then that description was not strictly applicable. It was accurate to divide society into two classes of rich and poor. There were a great mass, perhaps the bulk, of the community who were happily removed above poverty, but who were not yet rich enough to go into the Courts of Equity, and this class had a strong claim upon the Legislature to be put in the same position with respect to the rights of property as 1275 the more wealthy. It was not necessary to describe the existing state of common law with respect to the property of women, as the facts were familiar and of every day occurrence. It was incumbent upon him, however, to prove that he was not insisting upon a theoretical grievance. He had been met by the objection that though the rule might present a hardship, yet practically it did neither mischief nor wrong, for where there was property, settlements beforehand might be made; where no property, settlements were unnecessary. It was, however, a serious practical grievance that he complained of; but the proofs of it would occupy too much time for him to go fully into them on the present occasion. Suffice it that there was one sort of case which had been reported to him in dozens ever since he had given notice of his intention to bring forward this subject; such, for instance, as that of a man who, leaving his wife, went to live in adultery, or, at all events, to lead a life of viciousness, and yet came in to claim her property. Instances innumerable had come to his knowledge where the wife, so abused and neglected, had been enabled by her industry to set up in business, and yet the brute of a man could, and did, come down upon her, after a few months absence, and seize the proceeds of her labour under the sanction of the law. Now, he would ask hon. Members if it was fitting or just that they should any longer give the sanction of law to such iniquities? It certainly would not be difficult to frame a simple remedy. All that would be necessary would be to abolish the artificial rule of common law which had grown up, and to apply exactly the same principle to the property of the wife as was applied to the property of the husband. If no antenuptial contract was entered into, let the property of the wife remain in her own hands, and he disposed of at her death in the manner she might choose to direct. No doubt some further rules would have to be laid down with regard to the wife's obligation to the support of her children, and to contribute to the charges of the joint household. Some alteration, however, should be made with regard to the absurd laws relating to debts contracted by the wife before marriage—for absurd they undoubtedly were. A husband, after marriage, was not bound to pay any debt his wife might contract unless they were for such things as were suitable for her station in life; and yet he was responsible 1276 for any debts whatever that she might have contracted before marriage, although he might never have so much as dreamt of their existence. The difference of the two rules was itself enough to demonstrate that one of them was absurd, and, necessarily, that one of them ought to be altered. In conclusion, he ventured to appeal to his hon. and learned Friend the Attorney General, whom he knew to be a sound law reformer, to apply his mind to this subject, and to satisfy himself whether the conflict between common law and equity ought not to cease? If there must he any difference between the rights of husband and wife, the woman ought to be the favoured party, for she was the weaker, and assuredly stood more in need of the protection of the law. Let it not be supposed that he entertained any novel or theoretical notions on the position which women ought to occupy in society. The Resolutions he wished to propose were practical ones, and were intended to meet a real and practical grievance. No one could recognise more clearly than he the principle that the fitting place for woman was not to be engaged in a struggle with man for her bread. In nine cases out of ten the stronger sex must bear off the prize. He wished rather to see her enshrined in her own home, relieved from the carking cares of life, and enabled to make her home, however humble, a place of light and joy to her husband. But he could not overlook the fact, that in the existing state of society there were hundreds and thousands of women to whom no such description could apply. The laws of property pressed most grievously upon the interests of such, for those laws were the product of a rude age, and applied to a state of civilisation wholly different from our own, and ought to be altered or modified, now that so many women were found in the manufacturing districts and elsewhere earning the means of Subsistence by their own labour. He might refer to the example of a nation in many respects resembling ourselves, and in jurisprudence immeasurably our superiors. Originally the Roman law treated women as mere chattels; but at a very early period that was altered, and where, in all antiquity, could they find women equal in every civil virtue to the matrons of the Roman Commonwealth? The Minister who, in the present day, would bring forward a comprehensive measure to extirpate the evils of which he complained would not only 1277 effect a great social improvement, but would show himself fit to hold the helm of this country at the present critical period.
Motion made, and Question proposed—
That the rules of common law which give all the personal property of a woman in marriage, and all subsequently acquired property and earnings, to the husband, are unjust in principle and injurious in their operation.
THE ATTORNEY GENERAL
said, he cordially concurred in the Resolution of his hon. and learned Friend (Sir E. Perry). He quite agreed with him that the rules of the common law were injurious and unjust, that they were no longer applicable to the present state of society, that the rules acted upon by the Courts of Equity were much more consistent with the requirements of the age, and that the conflicting rules and principles of the two systems ought to be brought into unison. On the other hand, he would urge his hon. and learned Friend not to press the House to adopt his Resolution, for, if it were proposed to amend the law in a matter of this kind, it would be much better to proceed by introducing a Bill for that purpose than by calling on the House to discuss an abstract Resolution, which was, in fact, making it neither more nor less than a debating society. He had communicated with his noble Friend the Lord Chancellor upon the subject, and that noble Lord fully concurred with him in thinking that the time had come when the common law and equity ought, upon this point at all events, to be reconciled. The best attention of the legal authorities connected with the Government would, during the recess, be given to the subject, and he hoped that in the next Session of Parliament they should be able to introduce a more comprehensive and more satisfactory measure upon the subject. He might take that opportunity of saying that he should look upon such a measure, if it were passed, as only a part of a far greater one, for which the time had fully arrived, namely, the removal of the inconsistencies existing between common law and equity, by making the more rigid and stubborn maxims of the common law consistent with equity—that was, with reason, justice, and common sense. He hoped that his hon. and learned Friend would be satisfied with the assurance which he had given him, and would not press his Resolution.
§ Mr. MALINS
said, he must deny that 1278 the existing law placed any distinction between rich and poor, as the hon. and learned Member for Devonport (Sir E. Perry) seemed to suppose. The rule of Equity was a very simple one. Before marriage any woman might herself, and after marriage her friends might for her, take steps to secure her property to her separate use. The simplest instrument that could be devised would be quite sufficient for that purpose. If all that was desired by the hon. and learned Member was to assimilate the rules of Law and Equity, the proposal of the hon. and learned Gentleman should receive his cordial support; and for that purpose a very simple enactment, he apprehended, would suffice. If, however, the hon. and learned Gentleman wished to go further than that—if he wished to set up a separate establishment in every house—then he must resist it to the ütmost extent of his power. If it was meant that henceforth the husband should have his establishment and the wife hers, he must regard the proposal as contrary not only to the law of England, but to the law of God. The law of England with regard to matrimony, as it at present stood, was founded upon the soundest principle—upon the principle, namely, that when a man and woman married they became one, and that their property ought not, therefore, to be separated. If a woman had not full confidence in a man let her refrain from marrying him; but still, as the law stood, she might, if she thought fit, protect herself. If during coverture property devolved upon her, it would no doubt become the property of her husband, and his receipt for it would be perfectly good. That was equally the rule of the Courts of Common Law as well as of Equity. But there was this difference between the two. If a woman had not complete confidence in her husband, and if he were a bankrupt, she might go to the Court of Equity and press it to assign her a settlement. The usual rule in such cases was to give her one half, but she might get three-fourths, or even the whole. Could anything be more reasonable than that? But it was said a married woman might set up in business for herself, and her husband would have a right to seize the fruits of her industry. If the husband was an assenting party, she might contract with him that quoad the business she should be as if she were still a femme sole. Of course, except under what was called an equitable settlement, no contract between 1279 a husband and a wife during her coverture would be good as against his creditors. But did the hon. and learned Gentleman propose to give a wife power to set up in business in defiance of her husband, and to conduct it so as not to be liable for his debts. Certainly he (Mr. Malins) was not prepared to go so far as that. Indeed, there were some who thought that the whole equity doctrine of separate use was based upon an erroneous principle; and he was himself so impressed with the necessity of insisting on the perfect identity in all things of husband and wife, so convinced of the tendency of settlements to foster habits of extravagance on both sides, that, taking an enlarged view of the case, he was not satisfied that the doctrine in question had not proved detrimental to the best interests of society. He most solemnly protested against the new doctrine springing up, that it was for the interests of society that the wife should have separate interests from those of her husband. He believed that the interests of society involved quite a contrary principle, and he therefore hoped that the House would maintain the law in that respect as it now stood.
§ MR. MUNTZ
said, he would remind the hon. and learned Member for Wallingford that the necessity for an alteration of the law arose from the impossibility of a separation, under any circumstances whatever, in the case of a poor man and his wife. He himself knew several instances in which profligate husbands had squandered the property acquired by their wives to whose support they did not contribute one farthing, and he thought justice demanded that when the conduct of a man was such that his wife could not live with him, he should not be entitled to seize the fruits of her industry. Some alteration of the law was imperatively called for.
THE SOLICITOR GENERAL
said, that the real state of the law had not been represented by the hon. and learned Member for Wallingford (Mr. Malins) with his usual accuracy; while, on the other hand, he could not congratulate the hon. and learned Member for Devonport (Sir E. Perry) on the clearness of his Resolution, with respect to the evil that required to be redressed. The Common Law, on an occasion of marriage, made a qualified gift of the property of the wife, present and future, to the husband. The qualification consisted in the property being given to the husband, subject to the obligation of main- 1280 taining the wife; but the defect of the Common Law lay in the circumstance that it made no provision to compel the husband to perform that obligation. The true evil, therefore, was—and it was one that cried loudly for a remedy—that the husband, abandoning his duty, might totally neglect the obligation of maintaining his wife while possessing himself of all her property. In that respect, if the Resolution of the hon. and learned Member for Devonport had been properly worded, it would have contained a proposition highly deserving the attention of the House—not with a view to the introduction of a new principle into the law, as the hon. and learned Member for Wallingford supposed, but to enable the law to carry out its own humane principle, and to prevent that hardship which arose from the circumstance that, while the law imposed an obligation in words, it supplied no means by which that obligation could be enforced. There was another particular in which there was a difference between the rules of Common Law and those of Equity, and in which he thought it would be desirable that the Common Law should adopt the principles of Equity. In the case of property acquired by a wife during marriage, when there had been no settlement made for the fulfilment of the obligation imposed by the Common Law, Equity interposed when the property could be got only through the medium of the Court of Chancery, and refused to assist the husband in obtaining possession of the property, unless he consented to dedicate part of it to the maintenance of his wife. Such was one mode in which the Courts of Equity endeavoured to secure that which the Common Law required—the performance of She duty imposed upon the husband to provide for the support of the wife; and it well deserved consideration whether that rule should not be made universal and applied to all property, whether obtained by the husband through the medium of Courts of Equity or not. He confessed, at the same time, that, like his hon. and learned Friend the Member for Wallingford, he had some misgivings with regard to the extent to which Courts of Equity had carried the doctrine of separation of interests. He might mention, as an example, one case which occurred not long ago. On the occasion of a marriage a large property was settled for the separate maintenance of the wife. The wife ran away with an adulterer. The husband obtained a divorce a vinculo, and, although there were several children by the 1281 marriage, all the property settled for the separate maintenance of the wife went to the adulterer, and not one farthing could be applied to the support of the children. He should not therefore desire to see that general assimilation which seemed to be suggested in the imperfectly worded Resolution of the hon. and learned Member for Devonport. But the subject deserved the most careful consideration, and when the Bill which at present engaged the attention of the other branch of the Legislature on the subject of marriage and divorce came down to that House, it might not be impossible to insert a provision securing to married women who were deserted by their husbands the right of enjoying in safety the fruits of their own industry. The question lay too much at the foundation of all our social interests, and was too closely connected with the very constitution of society itself, to be dealt with lightly, rashly, or by piecemeal. He trusted, therefore, that the hon. and learned Member for Devonport would accept the assurance given by his hon. and learned Friend the Attorney-General, that the subject would not escape attention, and, entertaining the hope that something might be done when the Marriage and Divorce Bill came down from the House of Lords, would withdraw his Resolution, which certainly was not framed in such a manner as to put the real question clearly and distinctly before the House.
§ MR. WHITESIDE
said, he fully concurred with the hon. and learned Solicitor General in thinking that there was a loud call for an amendment of the law on the subject under discussion. He would venture to express a hope that somebody might appear with vigour and capacity to remedy an evil so much deplored. The discussion which had taken place that evening showed how important it would be to have a Minister of Justice capable of dealing with such questions, in order that Parliament might not always be deploring the existence of evils, but might be in a condition to apply speedy and practical remedies.
§ MR. J. G. PHILLIMORE
said, he thought that some amendment was required in the law of divorce, but he trusted that the Legislature would maintain unbroken the ideality of interest between husband and wife. Nothing could surely be more frightful than to teach wives that their interests were on one side, and those of their husband on the other. He thought there were many matters in which we might usefully 1282 follow the example of foreign nations; but, if there was one thing more essential than another which foreigners might learn of us, it was the relations which existed in this country between husband and wife. He fully agreed with the hon. and learned Gentleman (Mr. Malins) who thought that Equity had gone too far with the doctrine of separate uses; and when people talked of the sufferings which the law caused women, what could be more natural, what more desirable for women to know, than that, if they acted foolishly and contracted imprudent marriages, they must bear the consequences? The law of divorce, as it now stood, was a scandal to the country; and he did not anticipate any very decided amendment from the measure of the Lord Chancellor. What he would suggest was, that when a sentence of separation was pronounced, the same authority should pronounce a decision as to the wife's property. At present the evils of the law of divorce were most strikingly exemplified amongst the lower classes, especially in the case of bigamy. The measure before them was of a piecemeal character; and he thought the evil could only be met in the way proposed by the hon. and learned Gentleman the Attorney General.
§ MR. COLLIER
said, that they could not adopt any other than piecemeal measures until there was some officer in this country in the nature of a Minister of Justice, charged with the duty of proposing and carrying out the necessary amendments in the law.
§ MR. W. J. FOX
said, that the consolation which a Court of Equity was enabled to afford the wife for the injury and the privation to which she was often subjected at the hands of her husband was of a very cold description indeed. He had himself seen mention made within the last few weeks of two cases of a most distressing nature, in which the wives having been deserted by their husbands, and having been left families to support, had succeeded by their industry in accumulating a small sum of money, which had subsequently been squandered by the husbands, who had rejoined them, and who had in consequence reduced these poor creatures to a state of the utmost destitution. A hard case had also occurred a few days ago, in which a woman possessing a property of £400 or £500 a year had been married, and the entire of her property had gone to her husband's heir-at-law, leaving her penniless. The late celebrated Mrs. Siddons 1283 had by the exercise of her great talents accumulated a large fortune; but she had been obliged to beg of her husband not to leave her dependent upon others by disposing of that fortune to her prejudice by his will. Hon. Members could not have failed to see in the public press frequent advertisements from husbands announcing that they would not be responsible for the debts which their wives might contract—a circumstance which, taken together with the cases to which he had before alluded, could not fail to show that the state of the law as affecting the relations of husband and wife was most unsatisfactory, and demanded amendment. It was, therefore, with pleasure that he had listened to the statement of the hon. and learned Attorney General to the effect that the Government would take the matter into their immediate consideration.
§ MR. T. CHAMBERS
said, he thought that, whatever might be the number and pressure of the grievances complained of by his hon. and learned Friend (Sir E. Perry) they would bear no comparison to the mischiefs that would follow from the assertion of the vicious principle involved in the Resolution before the House. All the evils to which his hon. and learned Friend referred arose from a breach of the obligations of religion and morality in the married state; but the proposal now before the House would give the force of law to evils infinitely greater. No doubt the evils which now existed required remedy and ought to be attended to; but to introduce into every house in England the principle of separate rights, separate interests, and a separate legal existence between man and wife, was to nullify and destroy the law of marriage altogether, so far as regarded its sacredness and sanctity. The publication of such advertisements as "I will not be responsible for the debts of my wife" showed that it was not always a profligate and drunken husband who committed wrong, but that there were numerous instances in which a man's home was made wretched by the profligacy of a drunken wife. Evils without doubt existed on both sides, and they sprang from the breach of the laws of morality and religion; but the evils which would spring from the proposed alteration of the law would be far worse, for they would be the result of legislation. He thought the hon. and learned Solicitor General took a right view of the question, and he therefore trusted that he would be able to effect a sufficient remedy.
§ SIR ERSKINE PERRY
said, he would have been delighted with the assurance of his hon. and learned Friend the Attorney General had it not been followed by the speech of the hon. and learned Gentleman the Solicitor General. He was afraid, looking at that speech, that years might elapse before a satisfactory marriage law would be carried out; but still he had such confidence in his hon. and learned Friend the Attorney General that he would withdraw his Resolution, and look forward to a speedy rectification of the evils which he had too feebly, perhaps, pointed out.
§ Motion, by leave, withdrawn.