HC Deb 15 July 1857 vol 146 cc1515-23

Order for second reading read.

Motion made and Question proposed, "That the Bill be now read a second time."


said, he rose to move as an Amendment, on behalf of his hon. and learned Friend the Member for Wallingford (Mr. Malins), that the Bill be read a second time this day three months. He thought that the Bill went too far, and was calculated to introduce into families a great deal of discomfort and dissension. There was no greater source of dissension in married life than the existence of separate property, and this measure would add to those dissensions. It was not his intention, however, to enter into a detail of the difficulties which would be likely to arise under the Bill if it became law, because they were of too delicate a nature to be canvassed in that House; but he might state his belief that there were very few mothers of families, having the control of property which they ought to devote to the benefit of the whole of their children alike, who would have nerve and composure enough to refuse to grant pecuniary aid to any one of their children—say their firstborn—who might stand in need of such assistance. Again, by the Bill as it stood, a married woman becoming possessed of property after marriage had the power of alienating that property and of dealing with it as she pleased. She might, with the best intentions, lay it out, without consulting her husband, in some worthless railway shares or in some unsound speculation, and the husband might find that the whole of that property, to which he had looked, perhaps, for the maintenance of himself during his lifetime, and for the benefit of his children afterwards, had been swept away. He believed that the Bill had been introduced to meet an exceptional class of cases, which ought to be dealt with separately—such as where a wife who lived apart from her husband entered upon some business by herself, and there from acquired property, which in the present state of the law the husband could take possession of. He did not attempt to defend that state of things, but he did not consider that such cases belonged to society at large; and he thought that, as a general measure, the Bill was uncalled for. Of course he could not be expected to enter into the legal and technical objections to the measure, but in the absence of his hon. and learned friend he had no hesitation in moving, as an Amendment, that it be read a second time this day three months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."


whose name was on the back of the Bill, stated that he regarded the question far more as a social than as a legal one. The position of married women in this country was peculiar in this respect, that there existed with regard to them a law, which applied to all married women alike, unless they entered into an express contract for the purpose of modifying or avoiding that law. The object of the Bill, then, was to make that the law for all classes, which by custom it had become for the wealthy classes, for it very rarely happened that on the marriage of a woman possessing property her property was not made the subject of the most careful arrangement. This had produced the most striking conflict between the common law and equity on this matter; for while the former declared that the wife could hold no property, yet equity allowed her to hold property settled on her at the time of the marriage, and to bequeath it according to the terms of the settlement. Again, by the common law, the husband had a right to the earnings of his wife; but it was held in equity that the wife had an absolute right to all savings arising from the settled property. It was said that the cases quoted in support of a Bill like the present were peculiar cases, but he maintained that they were such as might happen at any time. Take the two cases mentioned by the hon. Member for Suffolk (Mr. Waddington). One was the case of a lady possessing considerable property who married a man by whom she was treated with great cruelty; she was deserted, and left almost penniless by him. The man died soon after, and then she discovered to her horror that she was left entirely penniless, all her property being bequeathed by her husband to an illegitimate son of his. Another case was that of a woman whose husband had committed a brutal assault on her, for which he was condemned by a court of law. In the meantime, her father dying, a considerable portion of property devolved to her. That property under the law went to the husband, and he being a felon, escheated to the Crown. Nothing but some such alteration in the law as was proposed by the present Bill could meet that state of things. The relations between husband and wife in France, with regard to property, were regulated either by the regime dotal, or the communauté de biens; the first resembled the marriage settlement in this country, and the latter, which was the practice followed in ninety-nine cases out of a hundred, established the possession of property by husband and wife in common, no portion of that property being capable of alienation without the consent of both parties. On sufficient grounds, however, either party could apply for a separation de biens, and then the property of the wife would be secured to herself. Perhaps it might be said that this would he a more desirable state of the law than that which was now proposed to be enacted, but he did not think so, as it was not applicable to the state of domestic life in this country, and might tend to familiarize the people to an objectionable degree with the idea of separation between man and wife. At the same time, he believed that the rejection of a measure like the present would lead to the adoption of such a state of things as he had just described. It might be said that at this late period of the Session it would not be advisable to proceed with the consideration of the present Bill, particularly as another Bill, with some similar provisions, was likely soon to come under discussion. That other measure, however, was connected with the establishment of a new Court of Divorce; and as that Bill might not be carried in that House, he trusted that the second reading of the present measure would be assented to, so that it might go up to the other House and receive the consideration of the law Lords. Lord Brougham had placed a reform of the law in respect to this subject on a level with the abolition of the slave trade and other great measures of that kind, and those who talked of the chance of domestic peace being disturbed by such an enactment as the present should bear in mind that they would disturb that domestic peace much more by leaving the law as it stood. The present condition of married women was, in the respects to which the Bill referred, alien to our habits and feelings, and it would he ungenerous and unmanly not to attempt to improve it. He hoped, therefore, that his hon. Friend on the Treasury bench would approve of the measure.


said, he could not make a very favourable response to the appeal of his hon. Friend. It was more a question for the law officers of the Crown than himself. But as he understood from the hon. and learned Member for Devonport (Sir E. Perry) that he had communicated with the Attorney General on the subject of the present Bill, and that that law officer approved it, though he was desirous of introducing some extensive modifications into the measure, he (Mr. Massey) should support the second reading. There was a distinction in the mode in which the property of married women was treated by courts of common law and courts of equity, and as there was that conflict of jurisdiction, it might well be said that the matter was not at present in a satisfactory state. Whether the provisions of the Bill were in accordance with the state of the law recognized by the courts of equity and with the habits of society in this country was another question. Some of those provisions appeared to stand in need of careful revision, or they might disturb the whole of the relations of married life, and revolutionize all the principles which applied to the rights of property in this country. He admitted the great hardship which was suffered by a woman in not having, when separated from a profligate husband, the power of applying the proceeds of her own industry to her own subsistence or to the subsistence of her children. He did not believe that it was not possible for the Legislature to find a remedy for that evil, but the effect of the fourth clause of the Bill relating to the earnings of a wife in separate trade would be to sot every creditor at defiance, and to drive the estate of husband and wife into the Court of Chancery. When he saw one particular and known grievance dealt with in a manner so loose and unsatisfactory, he could not give his assent to the proposed second reading, without the qualification that the Bill required the most careful consideration. He believed that such a Bill must undergo the careful revision of a Committee upstairs, composed of lawyers and others in whose judgment the House was likely to place confidence. The existing state of things called for legislation, but it must be cautious legislation, and he feared that at the present advanced state of the Session the hon. and learned Gentleman would scarcely be able to induce a sufficient number of hon. Gentlemen to consent to act as a Committee to consider the Bill. However, the hon. and learned Gentleman would partly have attained his object by ventilating the question, and next year, whether taken up by him or any other hon. Member, it would be felt to deserve the attentive consideration of Parliament.


said, the Bill required great care, because there were nice legal difficulties to be provided against. At the same time, no greater or more pressing evil existed than the position of married women in this country. If the Bill were sent before a Select Committee, he hoped a remedy might be found.


said, he trusted that the Bill would be withdrawn altogether. He thought the House was not prepared to adopt the principle laid down in the very first clause of the measure, which began by saying that a married woman should be capable of being sued as if she were a femme sole, without the slightest reservation that she should be sued only for matters arising under this Bill. That was a principle the House could not sanction even so far as to pass the second reading of the Bill. Again it was provided that no marriage solemnized after the passing of the Bill should make any change whatever in the property possessed either by the husband or the wife except in so far as it should be specified in any settlement made before marriage. How many marriages, he should like to know, in the middle classes took place in which settlements were not made? The higher classes would be exempted from the operation of this Bill, but what would be its effect on the lower classes? The moment a married woman acquired property after marriage the whole of the existing law in respect to such property would be suspended. He was prepared for some change in the law; and if the Bill were confined to the single object of protecting the wife's property against the husband, in cases where the wife was separated by decree of a court or by agreement, so that she might possess the means of livelihood for herself and family, he should not object to it, but he could not consent to send to a Committee upstairs a Bill like the present containing unsound and objectionable principles.


said, he found the Bill did not extend to Ireland. He thought, however, that if such a measure passed it ought to extend to all the three kingdoms. If an Irishwoman were married to an Englishman she would stand in a very different position under the Bill from her sister, who might have married an Irishman. Such marriages were very frequent, and the more so the better for the interests of the kingdom.


said, he had no objection to adopt that suggestion in Committee, but, as the Government assented to the second reading of the Bill, he could not follow the advice of the hon. Member for North Warwickshire (Mr. Spooner), and withdraw the Bill. The Bill did not deal with an exclusively legal question, but with a general principle, of which any hon. Member might judge. That principle, however, was not to be found, as the hon. Member conceived, in the first clause or in a word of a clause, but in the preamble, which declared that the law of property, with respect to married women, was unjust in principle and grievous in operation, and ought to be altered. The first clause, to which the hon. Member objected, was intended to give to all married women the same rights as those only possessed now who had settlements. The common law of the land gave the whole of the property of the wife, whether acquired before or after marriage, to the husband. He contended that that principle was unsound, and that it behoved that House to amend it. He had not heard any objection of validity urged to the Bill. The hon. Under Secretary for the Home Department had objected to the fourth clause, respecting the earnings of a wife in separate trade; but the hon. Gentleman was not, perhaps, aware that in the City of London such a usage existed. A married woman living with her husband, but carrying on a separate trade, was there entitled by law to all the profits of that trade, and might be made bankrupt. That law had existed from time immemorial, and worked well. The objections which had been urged to the Bill were objections of detail, and he should be most willing to take them into consideration. The Bill was the result of years of attention to the subject by men of the highest learning, and had been approved by the Government draughtsmen; and, if it were now read a second time, he would readily adopt the suggestion of the Under Secretary for the Home Department to refer the Bill to a Select Committee—a course which he proposed some weeks ago to the hon. and learned Member for Wallingford (Mr. Malins), but which was rejected by him. The Attorney General for Ireland assented to his proposal that the Bill should be referred to a Select Committee; and if the Government would give a pledge that that course should be adopted, he (Sir E. Perry) would not press the Bill this Session. He could not, however, consent to withdraw the Bill immediately, and for this reason: in a few days a very important measure, the Divorce Bill, would be brought under the consideration of the House. During the discussion which occurred with reference to that measure in another place, several clauses had been introduced with the object of protecting the interest of married women. It was very probable that the Divorce Bill would encounter great opposition in that House; and he thought it most desirable, if that Bill should be thrown out, that some of the clauses in the present measure should be discussed at a morning sitting, in order that the nature of the objections entertained to them might be clearly understood. The subject might then be referred to a Select Committee; and he hoped that before the end of the next Session of Parliament, those blots which now rendered the law of England on this subject a scandal might be removed. The course proposed by this Bill had been sanctioned by the Roman lawyers, who were masters of jurisprudence, and by our brethren in the United States, who had so far amended the common law of England.


said, he would recommend the hon. Baronet (Sir J. Y. Buller) to withdraw his Amendment. He thought many of the clauses would operate beneficially, and he hoped the Bill would be read a second time and go to a Select Committee, so that next Session it might be presented to the House in such a form that they would be enabled to give it their sanction.


said, he understood it was intended to propose the extension of the measure to Ireland, and he could, therefore, only assent to the second reading of the Bill under protest. He did not regard this Bill as one calculated to amend the law, but to effect a complete revolution in the law, which would disturb all the relations of husband and wife. He could not help saying that it was, in his opinion, a most rashly constructed measure, and one which was likely to lead to very mischievous consequences. He was far from maintaining that the law affecting husband and wife did not require amendment, but he thought it was a most dangerous experiment to attempt such a change as would be effected by this measure. The Bill would enable a married woman to contract what debts she pleased; to bind herself personally; to enter into litigation; to sue and be sued, without the knowledge or control of a husband or trustee; and the consequence might be, that a gentleman who was strongly attached to an extravagant wife might find her arrested at his dinner-table in respect of transactions of which he had no cognizance whatever. It had been said that married women were now liable to be sued. If a married woman was possessed of property settled to her sole and separate use which the husband could not touch, she was not liable to be sued; but if she entered into engagements under circumstances which the law considered pro tanto an appointment of her property, proceedings might be taken in Equity for the application of the property to the discharge of her liabilities. He thought this Bill would, in fact, afford the means of effecting a summary divorce between husband and wife. He would gladly assist his hon. and learned Friend in endeavouring in Committee to amend the law relating to husband and wife, but if this Bill were to be read a second time, he must enter his protest against its principle, which he regarded as far too large, and its details, which he thought would be found to operate most injuriously.


said, his hon. and learned Friend who last addressed the House had spoken of this Bill as an experiment, but he must be aware that its principle had been adopted in all those countries which were subject to the Roman law. The object of the Bill was to continue the wife as a legal entity after her marriage, whereas by the present law of England her marriage merged her existence in that of her husband. She could not acquire property, although she might contract debts; and it frequently happened, especially among the poorer classes, that when the wife of a profligate husband, who had deserted her, succeeded to property, the drunken rascal came in and seized everything she had acquired. He (Mr. Roebuck), therefore, hailed this endeavour to remedy such a disgraceful state of the law with the greatest satisfaction, and he hoped the House would assent to the second reading of the Bill.


said, if he required any inducement to vote against the Bill it was afforded by the statement of his hon. and learned Friend that he intended in Committee to propose the extension of its provisions to Ireland. He was far from desiring the application of the measure to Ireland, and on looking over the Bill, the clause which struck him as least open to objection was that which provided that the measure should not extend to Ireland. He did not oppose the Bill because he considered that the law affecting husband and wife was not capable of very great improvement, but because he believed such improvements would not be effected by this measure, which would, on the contrary, have a tendency to interrupt and destroy the intimate and confidential relations which ought to exist between husband and wife.


said, if he correctly understood that the hon. and learned Member for Devonport (Sir E. Perry) merely proposed to read the Bill a second time, and then to abandon it for the present Session, he was ready to withdraw his Amendment.


said, that he did not entertain the slightest expectation of passing the Bill this Session; but if it should be read a second time, he hoped that, in the event of the Divorce Bill being thrown out, the House would consent to discuss, at a morning sitting, the principles embodied in this measure.


intimated that, under the circumstances, he felt it his duty to press the Amendment.

Question put, "That the word 'now' stand part of the Question."

The House divided: Ayes 120; Noes 65; Majority 55.

Main Question put, and agreed to.

Bill read 2°, and committed for Wednesday next.