§ Order for Second Reading read.
§ Motion made, and Question proposed, "That the Bill be now read a second time."— (Mr. Shaw-Lefevre.)
, in rising to move that the Bill be read a second time that day six months, said, it had been introduced in a very plausible manner by the hon. Member for Reading (Mr. Shaw-Lefevre); but would, in his opinion, if passed, materially affect the existing relations between husband and wife, and introduce discomfort, ill-feeling, and distrust where hitherto harmony and concord had prevailed. As the hon. Member had stated in introducing the Bill, it was similar to one which had been introduced in 1857 by Sir Erskine Perry, and which received some amount of favour from the House, having been read a second time and afterwards referred to a Select Committee. But at that time there were admitted grievance with regard to the law of husband and wife. Thus, no facilities existed for obtaining a dissolution of marriage— a privilege then confined to the wealthy—and the earnings of a married woman deserted by her husband received no protection from the law. The Divorce 1353 Act of 1857, however, provided a remedy for these grievances, and since then little or nothing had been heard on this subject. Reference had been made to the fact that the law of the United States had recently been something like that proposed in the Bill. That change in the law had had but a short trial, and he was not at all prepared to admit that the institutions or the jurisprudence of the United States were suited to this country. He would rather appeal to English law, and ask whether, under it, the relations of husband and wife were not rightly adjusted, and whether the characteristics of an English home ought not to be preserved? It had been said that the present Common Law of the land pressed severely on the industrial classes, while wealthier people evaded its operation by settlements and by the help of Courts of Equity. But the proposal of the hon. Member to give the wife uncontrolled dominion over her property was not analogous to the operation of settlements, the object of which was not to protect the wife against the husband, but to protect the property brought into settlement, and make an inalienable provision for wife, husband, and children. Thus settlements tied up property, and prevented the very thing which the hon. Member desired— namely, that a wife should retain the absolute control of her own property. By the existing law the personal property of the wife passed upon marriage to her husband, is well as (to a limited extent) her chattels real, the husband having a right to deal with these while he lived, but not to dispose of them by will. With regard to the wife's realty, the husband was only entitled to the in come; the destination of the property rested with the wife; he could only deal with it during his life with her assent, and subject to certain conditions as to her separate execution; and, after her death, if there were children of the marriage, he enjoyed her real estate for his life as tenant by the courtesy. On the other hand, the wife upon marriage obtained perfect impunity. Her husband became able for her antenuptial debts; he will bound to support her children by a prior marriage; he was liable in the event of any action brought against the wife for civil tort, and any property purchased or acquired by him was subject, in case there was no will, to her thirds or dower. Thus there was nothing unequal or harsh in the law, which was consistent with the whole relations between husband and wife. It was founded on the 1354 principle that in return for the confidence of the wife the husband gave her protection and support; that he was most competent to deal with any property belonging to either; that there must be one head of the family, and that he was the proper head. That principle of law had worked well for centuries, and there was no reason why it should be altered. Now, the Preamble of the Bill was drawn with a very bold hand. It said —Whereas the law of property and contract with respect to married women is unjust in principle, and presses with peculiar severity upon the poorer classes of the community.And then the 1st clause went on to enact that—A married woman shall be capable of holding, acquiring, alienating, devising, and bequeathing real and personal estate, of contracting, and of suing and being sued, as if she were a feme sole.In his opinion such a change in the law was uncalled for, and would be most pernicious. Among the upper classes it would have no effect whatever, because they would still resort to settlements. But suppose the husband and the wife each had £500 a-year, and the marriage was not a well-assorted one. When the rent, taxes, servants, and other expenses of an establishment came to be met, what would happen? The utmost dissension. Again, suppose there was an extravagant wife, to whom the husband was, nevertheless, fondly attached. She might be arrested for debts, perhaps at the dinner-table, and the husband would either have to pay them or allow her to go to prison. The probability was that he would pay and be impoverished by this change in the law. But would the Bill be any real protection to the wife? Suppose a man married a woman for her money. According to the Bill he might still influence her after marriage to convey to him the whole of her property. Then it could not be doubted that women were inure liable to be imposed upon than men. Take, for instance, such cases as that of Mrs. Lyon, and that of Mrs. Borradaile, who had actually paid £4,000 in order to be made "beautiful for ever." He now came to the case of the industrial class. It could not be denied that in 499 cases out of 500 women of that class had not a halfpenny of their own, and what good could a Bill of the kind be to them? They would take nothing by it, but some liability. At present the wife; could not be sued; but what was likely to happen if the Bill passed? The husband, 1355 was away from home all day providing the means of subsistence for the family. The wife was the person who made the purchases for the house, and, being the contracting party, she might be sued. In that case she would not be likely to thank the hon. Gentleman for having introduced a Bill by which she took nothing except that very unpleasant liability. And then where a brutal husband was concerned did hon. Gentlemen think that when the wife got some money he would not go and take it away from her at once? His hon. Friend had provided some machinery for the protection of the wife by means of the County Court; but the man would get the money into his own hands long before that protection could be obtained. He maintained, therefore, that this Bill was uncalled for; that it would be inefficient and pernicious; and he honestly believed that if the married women of England were appealed to they would be found opposed to it. They would prefer that spirit of mutual confidence, which was the great element of happiness in marriage, to the possession of the most unlimited power over their property. He would like to know for whom the hon. Gentleman proposed to legislate? It was, in the words of the hon. Gentleman, for "the reckless, the improvident, the vicious, the self-indulgent, and the indolent—" [Mr. Shaw-Lefevre: Husbands.] Well, but why were those reckless, improvident, and vicious husbands to be legislated for to the prejudice of the community? This was exceptional kind of legislation; it was legislating for a certain class to the disregard of the interests of the greater portion of the population, and therefore he begged to move that the Bill be read a second time that day six months.
, in seconding the Amendment, said he objected to the Bill as the most revolutionary measure that had been introduced to the House since he had had the honour of a seat in it. He objected to it on two grounds— in the first place, because it would effect an entire revolution in the social status of husband and wife; and in the next, because it would work a like revolution in regard to the law of property; and it was difficult to say under which head it was most open to objection. He would ask the House to judge of the Bill upon its own merits, and by that test to throw it out. There was an extreme discrepancy between the Preamble and the enacting part of the Bill. 1356 The recital in the Preamble was that the law of property with respect to married women was unjust in principle, and pressed with considerable severity upon the poorer classes of the community. Anyone would suppose from such a Preamble that the Bill was intended to amend the law with regard to the property of the poorer classes; but for every pound's worth of their property affected by the Bill there would be hundreds of thousands of pounds worth of property affected belonging to those classes upon whom, according to the Preamble, the law did not press harshly in any way whatever. Now, what were the objections to the Bill as regarded the first point? The law of this country had not grown up suddenly; it was the growth of ages, and they must go to the time of the Conquest to trace it to its source. It was founded upon the assumption that the husband and wife were one person— that position was denoted by the word "coverture"—that there should be but one head of the family, and that the husband should be that head. One of our best legal writers (Blackstone) had laid down more than once that such a state of things showed how great a favourite the woman was with the Law of England. The result of only one person being at the head of the family involved, according to text-writers on law, "supremacy" on the one hand, and "subjection" on the other; or, as he would say in modern language, authority on the one hand, and obedience on the other. But the hon. Gentleman denied to alter the law—the growth of ages—and to make two heads of the family instead of one, which could have no other effect than that of introducing discord and confusion into family life. The second branch of his objection related to the law of property; and the revolution that would be brought about in that respect could hardly be conceived. The change proposed had been advocated with great plausibility. But it was the superficial character of the measure which enabled it to be presented to the House in a plausible form; and the moment they looked into the existing state of the law it would be seen how utterly impossible it would be for such a measure to work. He maintained first of all that the Bill was utterly unnecessary, for the existing law did full justice to married women; and next, that if the poorer classes of the community were subject to any injustice, the so-called remedy proposed in the Bill would not only not touch the evil, but would even aggravate it, There existed 1357 no necessity whatever for such a change, so far as the upper classes were concerned, for the rights of a married woman could be protected by marriage settlements; and any person who wished to make over to her individually any properly had only to insert the words "for her separate use," Under the present law married women were better protected than they would be if this Bill passed, for they had the protection of trustees. On the other hand, the alteration now proposed would have no other effect than to take away from married women of the poorer classes a great part of the protection which was afforded by the existing law. The proposed Bill was unnecessary, and would prove inefficient, and even disadvantageous to those whom it was intended to protect. It would be wrong to give to a woman the sole possession of property as against her children. Then with respect to real estate, it was proposed that the husband should hold the land for an estate by the courtesy; which was inconsistent with the principle of the Bill he objected also to the County Courts having jurisdiction to any amount in cases of quarrels between husband and wife. If this Bill passed, a hardworking journeyman, whose employment took him, from home, might find, on his return, that i his wife was in gaol instead of taking care of his family, and all on account of the very questionable benefit of her liability to, sue and be sued, as if she were a feme sole. He contended that whatever inconvenience was experienced under the present state of the law might be easily removed by the introduction of a short Bill to extend the provisions of the Divorce Act of 1857, so as to give the magistrates the; power of determining in cases of cruelty as well as in those of desertion, that the earnings of the wife, or any property which she might afterwards acquire, should vest in her. He begged of hon. Gentlemen opposite to reconsider the subject between this time and the next Session of Parliament; and if they did he trusted they would come to the conclusion that there, was no necessity whatever for interfering with the law, which, he repeated, had ripened into its existing state after the lapse of many centuries. The only thing he could see in favour of the Bill was that on the back of it was the name of the right hon. Gentleman the Recorder (Mr, Russell Gnrney), and also that of the hon. Member for Westminster (Mr. Stuart Mill). 1358 He entertained the very highest respect for the Recorder; but that right hon. and learned Gentleman was not in his place to state his reasons for supporting the measure, and with all deference to so high an authority as the hon. Member for Westminster, whose writings they had read with pleasure; he thought hon. Gentlemen would agree with him when he said that, in spite of that hon. Member's great ability and research, he had treated the matter as regarded husband and wife in a philosophical rather than a practical spirit, he recollected one passage in the hon. Gentleman's work on political economy which had struck him very much. The hon. Gentleman had mentioned in that valuable work that in cases where the husband and wife were most nearly assimilated in regard to labour—as, for instance, in handloom weaving— their condition was most precarious, and they were very badly paid. Where, therefore, there was an assimilation in the position of the man and his wife, poverty and consequent degradation were pointed out as the remit. With reference to other passages in the hon. Member's work, he would say that he did not think the hon. Gentleman appreciated sufficiently the difference between a man and woman in this country. There wore more things with respect lo this important rotation in heaven and earth "than were dreamt of in his philosophy." He did not menu to disparage the writings of the hon. Gentleman for they all knew that one of the greatest of philosophers had written the most fanciful and even the most irrational things with regard to women. In conclusion he would say here you have a building raised up by the labour of a great number of years; it existed as a whole—one great and entire edifice, but so far as he was able to understand this Bill, if it were passed in its present form, under the pretext of interfering with a few bricks or repairing a few rents, it would pull down the whole structure.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months." — (Mr. Lopes.)
said, he should support the Bill. Whatever doubts he might have entertained on the subject would, he felt bound to say, have been removed rather than strengthened by the exaggerated statements of hon. Gentlemen opposite. They had spoken of a social revolution. But 1359 those who used that language in one place maintained in another that the Bill would have no effect whatever with regard to the larger portion of society. With regard to marriage settlements, they would continue to be made if the Bill passed, so that there was no pretence for saying that it would create a social revolution or produce domestic discord. There was no better proof of the hardship of the Common Law than the Judge-made law to which successive Chancellors had contributed, and which had materially mitigated it. The poorer class, however, could not afford to go to the Court of Chancery, and were exposed therefore to the full hardship of the Common Law. When that law sprang up personal property scarcely existed. There were no railway shares, for instance. It was therefore not unreasonable that a husband, on becoming liable for his wife's debts, should take possession of her effects; but even then an exception was made with respect to paraphernalia, and in the case of real property a wife's rights were to some extent recognized. He admitted that, practically, the present state of things, though anomalous, worked very fairly among the higher classes; but a serious evil existed with regard to the poorer classes, and he thought there was a decided necessity for legislation. He was not altogether satisfied with the changes proposed by the Bill, but he would vote for the second reading, if only for the sake of the 4th clause.
§ MR. GOLDNEY
said, he thought that the question was one quite worthy of legislation, though he could not approve of all the provisions of the Bill. It was undoubtedly hard that a drunken husband should be allowed whenever he chose to sweep up all the earnings of a woman so unfortunate as to have married him; and he would support a provision by which a married woman should be permitted to put her earnings into a separate bank, from which they should not be withdrawn except by her consent, but it would be un-advisable to permit married women to sue or be sued separately from the husband, and he could not help thinking that if such a measure were passed it would give great facilities to fraudulent debtors to set their creditors at defiance. It would enable a man to use his wife's money in business, and if unfortunate to hand over her share at the last moment to his wife, and thus deprive his creditors of their rightful claim. To recognize a separate 1360 interest for the wife was contrary not only to our Common Law, but to the practice of ancient and modern States. The Bill would practically render marriage a common partnership, the wife enjoying all its advantages with none of its risks. He also feared that it would introduce the elements of discord into domestic circles, and lead to a great deal of immorality, because it would so free a woman from restraint that in any quarrel she might have with her husband she would be enabled to say, "I have my own property, and if you don't like me I can go and live with somebody who does."
§ MR. POLLARD-URQUHART
contended that cases of hardship ought to be provided for, and reminded the House of a noble poet who married a lady with a large fortune, the greater part of which, on their early separation, he spent in a way which could not be approved. No doubt such cases were exceptional, and hon. Members might perhaps recall the poet's lines—But oh! ye lords of ladies intellectual,Inform us truly, have they not henpecked you all?The liability of the husband for debts contracted by his wife before marriage was another question which required revision, for, as the same poet had said—The milliners who furnish 'drapery misses'…. gave such creditThat future bridegrooms swore and sighed, and paid it.He hoped the Bill would be allowed to go into Committee, where the legal objections which had been offered might be considered.
disputed the statement that 499 women out of 500 in the humbler classes possessed no property, remarking that 800,000 women were in receipt of weekly wages in factories, and one in four of the married women are employed in manufacturing industries. Protection against dishonest and reckless husbands was urgently required, and he was not terrified at the epithet "revolutionary," remembering how systematically it was applied by hon. Gentlemen opposite to measures designed to improve the social condition of the masses. In the homes of many thousands in the manufacturing districts the passing of such a measure would be regarded as an inestimable boon.
§ MR. JACOB BRIGHT
said, he believed that what he was about to say would represent the feeling of a large portion of 1361 the population of Manchester. The hon. Member on the opposite side (Mr. Lopes) who moved the rejection of this Bill, said that there were not 5 per cent of the married women of England in favour of the Bill. But if he (Mr. Jacob Bright) was not misinformed, some ten years ago a very similar Bill was before the House, and on the question of the second reading received the votes of a large majority of the House. Such a result would imply a strong opinion in favour of the Bill out-of-doors. Some important petitions had been presented, and he himself had presented a petition from Manchester signed by 5,000 persons in favour of this Bill. If they had party organizations such petitions would not be remarkable; but when no such organizations existed these petitions showed that there must be very strong reasons indeed in favour of the measure. An hon. Member spoke of the great danger of such a change, and of the difficulty of reconciling it to the general laws of the country; but he (Mr. Jacob Bright) believed that the laws of England would have to adapt themselves to the feeling among the people of what was just, and he was never more certain of anything than that the principle on which this Bill rested would ultimately receive the assent of the great majority of the people of England. He did not happen to be in the position which had been referred to by an hon. Member in having married a woman with a much larger property than himself. He could not agree with the hon. Member in thinking such a position a degradation; but he certainly should think it a degradation if he took upon himself to spend such property without the consent of the person whom he believed to be the rightful owner. If the House agreed that it was a discredit to the husband to spend the money of the wife against her will, the wife ought to be in such a position as would prevent such a thing taking place. If, indeed, it could be shown that women were mentally incapacitated from holding and managing property to the advantage of themselves and their families, he would acquiesce in the existing disqualification; but it was impossible to endorse such a proposition when they remembered that widows and unmarried women who, unfortunately were more numerous in this than perhaps in any other civilized country, possessed the full control of their property and managed it successfully. No doubt there had been recent instances of women investing their 1362 money imprudently; but they had invariably been preceded by numbers of the other sex, and some of the leading commercial men in the country had been sharers in their misfortunes. It was pointed out by the late Mr. Cobden that women in Franco generally held the purse, and it was the opinion of that great statesmen that they had certain moral qualifications which entitled them to hold the purse. This was not in any sense a party question, and he was sure that if the hon. Member for Reading (Mr. Shaw-Lefevre) went to a division hon. Members on both sides of the House would be found in the same Lobby with him. It might be a class question, but it was not so in any disagreeable sense. It was a class question only in this sense— that women of the upper classes had already to a great extent protected themselves, and the object was to enable those in the lower ranks to do the same. It would be easy to bring many illustrations to show the hardships of the present state of things. But it was hardly necessary, because everyone knew that where no protection was given wrong was inevitable. It would not be necessary, for example, to prove that if there was no law against burglary, burglaries would be committed. If married women were not protected they would be sure to Buffer wrong. A. letter that had been placed in his hands from a lady in Manchester gave some striking instances of the cruel and oppressive operation of the present law. One was that of a woman who had a good business as a shopkeeper, and whose husband sold off her stock-in-trade and household furniture, which were her property before marriage, and went away to America, leaving her quite destitute. This led to an application to a magistrate; but the magistrate could only say he was sorry, but there was no remedy, as the husband had not exceeded his legal power. Another was the case of an elderly lady of considerable property in Manchester, who had married a much younger man than herself. Her husband wasted all her property and deserted her. She was taken to the workhouse and died there. If she had had the power she would doubtless when half her property had been squandered have secured the remainder. The letter further mentioned that a woman employed by the writer as a laundress told her that during her husband's life, when she earned a pound or two she dared not put it in the bank, but had to conceal the money. 1363 Since he (Mr. Jacob Bright) had bad the honour of a seat in that House, confiscation appeared to be the strongest charge that could be brought against any public man or measure, but it seamed to him that confiscation, or something just as cruel, was taking place in thousands of cases every week in this country. It was said that England was on a par with other countries in its legislation for the protection of the property of women, but this was a mistake. In the United States and in Canada women had received the protection which was now sought to be given them by this Bill, and in some of the most important countries in Europe women were entitled to much greater protection than they received here. It was well-known that the husband could not alienate the wife's freehold; if, then, land which was the property of women should be secured to them, Consols and bank shares or cash should also be secured to them; and, on the other hand, if the husband had the right to spend the wife's money invested in railway or bank shares, or in the bank, he had just as much moral right to alienate the land and squander the value of the freehold. If there were one title to the possession of property stronger than another, it was that which attached to what a man had himself created; but to his mind property created or earned by a woman was still more sacred, because she had given a much larger portion of her life for every pound sterling she earned than a man would have to do. Nature had put barriers in the way of her earning her own subsistence, and the law, instead of assisting her weakness, denied her the commonest protection. If the Bill were not now passed, he believed that the time was not far distant when either this or a similar measure would be passed. It would be an act of justice to women and children; and there could be no such act which was not also an act of justice to men, for the children of one generation were the men of the next. With an increase of independence, such as the Bill would secure, there would be an increase of respect for women—of real respect, which is a thousand times more valuable than the conventional politeness which it is always so easy to pay. If this Bill were passed thousands of homes would be Jess miserable, many children would be educated who are now neglected, and many families would be supported by the industry of the mother who are obliged to seek parish relief. A stimulus would be given to the industry of women; they would 1364 be enabled to earn money happily, and in the light of day, whereas in many cases they had now to earn it by stealth. He believed no measure the public was likely to obtain through that. House in his lifetime would confer a greater benefit on the entire community than that now proposed by the hon. Member for Reading.
§ MR. LOWE
Sir, the question before the House is simply this — ought the Common Law with regard to the property of married women to stand or not? There is not the slightest occasion for going into minute details or technicalities. It is that large question which we have before us. Now, the Common Law is this— that the personal properly of married women, whether possessed before or acquired after her marriage, is not hers at all, but is the absolute property of her husband, and that the land of a married woman is for the benefit of the husband during her life, and in the event of his surviving her is his property, in case there are children by the marriage, till his death. Is that right or not? The question is not that which was stated by the hon. and learned Member for Colchester (Mr. Karslake), whether this can be traced up to a long succession of ages in the most barbarous times, and whether it has been confirmed and consolidated and built up into an edifice— the question is, on what is that edifice founded? Is it founded on justice and righteousness, equality and fairness, or is it founded on injustice, tyranny, and oppression? That surely is a very simple question, and there is no need to talk about disturbing social order in families and about destroying the husband's influence over the wife, which is saying in so many words that unless you put the whole property of a married couple into the hands of the husband and give him, like this House, the power of stopping the supplies whenever he thinks proper, there is no chance of concord and harmony in the marriage state. Let us dismiss considerations of this kind, because we have to go to these which are much more elementary. The law holds that when a man or a woman has got property they are not bound to show that they will make a good use of it, so as to make it conduce to social good or to anybody's good. They have got it, it is their possession, and it is respected as such, with the single exception of married women. If a woman possesses property and is married, the law, being no doubt afraid the husband might tyrannically take it from her, puts that temptation out 1365 of his reach by taking the property away and giving it to him all at once. That is the simple state of the law. Now show me what crime there is in matrimony that it should be visited with the same punishment us high treason— namely, confiscation, for that is really the fact. The property is as much confiscated and taken from the woman and her children by the husband as if she had committed a capital offence; it is gone from her for ever. It is for those who uphold this, not to talk about social strife, but to show how, on any principles of equity and justice, it can be justified. Now let us take the opinion of mankind on the subject. Suppose a girl has a considerable property, and that she has a father or a guardian, what, in the view alike of those who oppose and those who support this Bill, is the duty of the father or guardian? Clearly to make a marriage settlement in order to protect her property. Why so, if the Common Law is just? The common sense of mankind, the natural affections of mankind, the practice of mankind, utterly condemn this law, and its operation is systematically avoided by special contracts made to remedy its injustice. Every marriage settlement that is made is a tacit protest against it. Well, now, what is the duty of the law?— for; we sitting here as legislators have just as much a duty to perform as fathers or guardians. The only occasion when our duty comes into play is when from any reason, whether accident or improvidence, no marriage settlement is made; and what ought we to do? Why, surely we ought; to put ourselves in loco parentis, and show towards the persons we are bound to protect just the same feelings of kindness and beneficence, and the same wish to protect and spare them from injury, which the; parent or guardian is bound to show to his child or ward. We cannot make the same provision that they can, because we do not know the circumstances of each case, and can only deal with cases generally; but I; maintain that where a change of condition has not been provided for by special contract it is the duty of the law to make as just a settlement as it can for the generality. And what is the most just settlement? Is it to give over the whole of her property to her husband? Is that discharging the duty we undertake? We have Courts of Equity to temper the severity of the Common Law, and which themselves; order a, settlement to be made in certain cases, A ward of the Court of Chancery 1366 has a settlement made for her by decree of the Court; and if a woman have a legacy left to her after marriage the Court will compel the husband to make a small settlement upon her. That is an admission; on the part of the Court of Chancery that the present law is unjust. Thus the practice of mankind and the voice of the higher, Courts are alike against it. In ordinary cases we allow persons to retain the property to which they are entitled until a case is made out for depriving them of it. Is there no practical mischief arising from the present state of things? Observe this, that the mischief does not occur through the negligence of the parties, but through the action of the law, because a woman is in a condition to make terms after marriage as well as before. But the law steps in, and that which occurs is principally and primarily owing to the operation of the law. Cases sometimes occur in which a man without a shilling marries a woman with landed property, He becomes the tenant for his own life by the courtesy of England. He takes a dislike to her, he studies the law of cruelty, and having adopted a course which just prevents her from getting a judicial separation, he drives her from her home, and his children with her, to live in poverty, and almost in need, where they are unknown, while he keeps a great establishment, perhaps on her estate and at her expense, and is a great person in the county. And that is done not through her fault or negligence, but by the iniquity of the law, which puts it in his power to do this by taking her property from her, and enables him to fatten upon the spoils of her whom he has sworn to love and cherish. Then there is the very common case of the legacy left to the wife and taken and squandered by the husband. We are responsible for this if we allow those things to be done. Let us put aside all questions of social policy and marital rights, and ask ourselves whether anything can be shown to justify us in taking away property from one person and giving it, without any consideration, to another? We are actually giving a premium to a man to run away with a girl and marry her without the consent of her parents. If a man makes honourable love to a girl the matter is carefully looked to by her parents and guardians, and her property is settled upon her. But if a man can induce a young woman to leave her father's house and marry him her property becomes his absolutely, so that it is to the interest of the 1367 man to marry her without the knowledge of her parents and without settlement. For these reasons I cannot let this Bill pass a second reading without bearing my testimony to the flagrant iniquity of the present law. Should we make such a law for India, or any dependency into which we were introducing a law of marriage? The hon. Member for Chippenham (Mr. Goldney) says that a husband might use the property of his wife so as to get credit; but if a woman allowed her husband to use her property in business she would become a dormant partner, and her property would be fairly liable to pay the debts thus contracted. I trust that my hon. Friend will persevere with his Bill.
THE ATTORNEY GENERAL
Sir, I agree that we ought not to discuss this question from a party point of view; but although it may be necessary to give greater protection to married women in the disposal of their property and earnings, the change proposed to be made in the law by this Bill is so great that in its present form I am not prepared to assent to it. The right hon. Gentleman says that women in the upper classes are protected by a settlement made before marriage, and that this is the best proof of the errors and wickedness of the Common Law. But marriage settlements are framed not only to protect the wife; but to take care that on her part she does not make away with the property and prevent the children of the marriage from being benefited by it. A marriage settlement is never made for the benefit and protection of the wife alone. Hon. Members who have argued in favour of this Bill have forgotten the extent of the change which it proposes to make in the present law. It is true that the wife gives up a certain amount of interest in her property to her husband, but what does she get in return? Perfect immunity from the debts contracted by herself. A wife may order goods for which her husband must pay. The Bill proposes to treat the married woman as if she were a feme sole. What is the object of so treating her? That if the husband falls sick or otherwise and the wife can make an income, she is to be entitled to prevent the husband from spending a single shilling she gets. The next consequence is that she must be entitled to be sued in her own name. But if you sue the wife for the debts she contracts are you to sue the husband also? The husband will still be liable for the debts she contracts, so that you will have 1368 an action brought against her, and the screw will he put upon the husband so that he must pay the debts or allow the wife to go to prison. Again, if the husband refuses to provide for his children, he is under a Common Law liability to maintain them. But by this Bill, even if the wife should be earning an income of £3, £4, or £5 a week, the Common Law liability will still attach to the husband to maintain his children, while the wife will be under no liability to contribute to their maintenance. After this we come to the property of the married woman. The principle laid down appears to be that if no settlement is made at marriage everything that is the wife's will remain hers. She may engage in any trade or speculation and the husband will have no control over it. I do not think that this would be a wise or a prudent law. The next clause is also objectionable. It has a retrospective effect, and clauses of this kind always require great care and attention. Up to this time persons have married on the assumption that the law will dispose of their personal estate as it has hitherto done. But the clause alters the law by enacting that—Every woman married before this Act has come into operation shall, notwithstanding her coverture, have and hold all the real and personal estate her title to which shall accrue after this Act shall have come into operation, free from the debts and obligations of her husband and from his control and disposition, in all respects as if she had continued unmarried.So that persons who have married on the assumption that the estate shall belong to the husband will find that the Bill makes an entire change in the rights enjoyed by the husband. The next clause enacts that—The earnings of a married woman in any trade or other occupation carried on by her separately from the trade or other occupation of her husband shall be deemed to be her personal estate.Then comes a clause the extent and scope of which the hon. Member cannot have observed. A husband is not to be liable "for the debts of his wife contracted before marriage, and shall not be liable in damages for any wrong committed by her." What is the effect of that clause? The effect of making the wife a feme sole will be that if the lady drives out in a carriage with the servants under her own control and the carriage comes into collision with anything or anybody, she commits a wrong possibly against some one. But is the wrong committed by her or by her husband? You say that the wife acts as a feme sole, and, 1369 whether she has a shilling of her own or not, you are to sue her and not her husband. If a husband supplies his wife with a horse and carriage, and a wrong is thereby committed, is not that a wrong that ought to be redressed by the husband? Then it is said that a great deal of suffering exists among the lower class of women in consequence of the present state of the law. But why should you alter the whole law of England to meet particular cases? The hon. Member for Manchester (Mr. Jacob Bright) has told us of the number of persons who have petitioned in favour of this Bill. No doubt the persons who sign these petitions think that the wrongs of a certain class ought to be redressed or remedied; but they could not have known the extent of the change which it proposed to make in the law of this country. The 20 and 21 Vict. contains a clause to the principle of which I entirely assent, and which protects women of the poorer class in the enjoyment of their earnings. I would be the first to assist the hon. and learned Member for Reading (Mr. Shaw Lefevre) in extending the benefit of that law, and in giving protection to the poorer classes, but I protest, against making a change in the whole law to effect this object. The Bill, in fact, proposes such an immense change in the law as to make it necessary in Committee to strike out a great number of the clauses. By the Act to which I have referred — the Divorce Act — a clause which has been productive of very beneficial consequences enacts that where the husband has deserted the wife she shall be allowed to go before a magistrate and obtain protection for the enjoyment of her earnings. It may be that this clause does not go far enough, and that in cases of cruelty or ill-treatment arising from dissipation some further protection may be necessary, but the powers of the Divorce Act might be extended without altering the entire law of this country. I think that this Bill would create a great social change, and that you are proposing by it to put a married woman on the same footing as a man. If she is to be entitled to her separate earnings she ought, at least, to be equally liable to maintain his and her family. If these and other necessary alterations are to be made the Bill would, I fear, require more consideration than can be given to it in the present Session I have considered the subject without party feeling, but the Bill goes far beyond what 1370 the hon. Gentleman really wishes to effect, and a much simpler measure would meet the hardships which, no doubt, often occur among the labouring classes.
§ MR. J. STUART MILL
Perhaps, Sir, those who, like myself, support the extension of political rights to women, should desire the rejection of this Bill, because it is quite certain that its rejection would give an extraordinary impulse to the movement for giving the suffrage to women which has already advanced with so much vigour. But I confess that I should like my own sex to have the credit of giving up unjust and impolitic privileges before they are brought under the influence of other motives than their own good feelings. The debate has produced several most gratifying expressions of feeling, more especially the able and persuasive speech of the hon. Member for Manchester (Mr. Jacob Bright) and the logical and high-principled address of the right hon. Member for Calne (Mr. Lowe). The hon. and learned Member for Colchester (Mr. Karslake) said with great truth that the real authors of the Bill are not present, and he seemed to think they must be persons in whose eyes any change in existing institutions must be an improvement. I am Sorry the hon. Gentleman has left the House, as I could have informed him who some of those persons are. I do not suppose the hon. Gentleman was aware that among the persons whom he was condemning were those eminent socialists and revolutionists the noble Lord the Secretary of State for Foreign Affairs and the right hon. Gentleman the Secretary for War; the noble Lord having been, along with that distinguished Judge, Sir Lawrence Peel, a member of the committee of the Social Science Association by whom the Bill was drawn up which was introduced into the House by Sir Erskine Perry; and the right hon. Gentleman having taken the chair at a public meeting held in support of its principles. The hon. Gentleman is aware that the right hon. Recorder of London (Mr. Russell Gurney) is a supporter of the Bill, because his name is on the back of it; but he seems to think that Gentleman's absence intentional, though, as a lawyer, it is strange he should not have known that the Recorder's absence is caused by his presiding in his Court. That conscientious and feeling Judge was very desirous of being present, and would, from his judicial experience, have put the House in possession of the real effects of the present 1371 law, and afforded to the Attorney General and the hon. Member for Colchester some information as to the true working of that power in the Divorce Act to which allusion has been made. It is only in cases of desertion that this power comes into exercise, and that the magistrate has power to make orders of protection; but cases are continually happening, some within my own knowledge, in which the husband just avoids the amount of desertion which would enable the magistrate to give protection to the wife. He stays away for a sufficient time to enable her to accumulate a small sum, and then lives with her just long enough to squander it. As, however, the Attorney General has expressed a willingness to extend and improve the operation of that Act, I trust that he will himself introduce a Bill on the subject. There has been, indeed, on the part of the Legislature a wonderful overlooking of the need of some such protection. Even in cases where the words "to her separate use" introduced by the Court of Chancery for the wife's protection, have been employed, the sole effect of the words is that the trustees cannot pay the income of the settled property except upon the wife's receipt That is a perfect protection if the wife is living away from her husband; but if she is living with him, the money immediately becomes the husband's income, and he has a right to take it from her the moment she receives it. A large portion of the inhabitants of this country are now in the anomalous position of having imposed on them, without their having done anything to deserve it, what we inflict as a penalty on the worst criminals. Like felons they are incapable of holding property. And the class of women who are in that position are married women, whom we profess a desire to surround with marks of honour and dignity. It seems to be the opinion of those who oppose the measure that it is impossible for society to exist on a harmonious footing between two persons unless one of them has absolute power over the other. This may have been the case in savage times, but we are advanced beyond the savage state; and I believe it is not found that civilized men or women cannot live with their brothers or with their sisters except on such terms, or that business cannot be successfully carried on unless one partner has the absolute mastery over the other. The family offers a type and a school of the relation of superiors and inferiors, exem- 1372 plified in parents and children; it should also offer a type and a school of the relation of equality, exemplified in husband and wife. I am not insensible to the evils which husbands suffer from bad and unprincipled wives. Happily the sufferings of slavery extend to the slave master as well as to the slave. But if you want to give the wife the strongest possible motive to strain to the utmost her claims against the property of her husband, what step more effectual for this object could be taken than to enact that she should have no rights of her own, and should be entirely dependent upon what she can extract from the husband? It is only by doing justice to people that we can hope to prevent their encroaching on the rights of others. Would the hon. Member for Colchester accept for himself exclusion from all rights of property, on condition that some one else should pay his debts, and make atonement for his wrongs? The Attorney General certainly hit the weakest part of the Bill when he pointed out that, if the rights of husband and wife were to be equal, their obligations ought also to be equal. If the Bill gets into Committee it will be necessary to alter some of the clauses so as to establish an obligation equally on both parties. The Bill will no doubt require a great deal of consideration, not so much in regard to the omission of any of the clauses as to the addition of others. It is very true Unit if the Bill passes, many other alterations of the law will be necessary; for when the law is founded on a bud principle much re-adjustment is necessitated by the adoption of a good one. But if it should please the House to refer the Bill lo a Select Committee, there are hon. and learned Gentlemen on both sides of the House quite capable of proposing such alterations as will make the Bill work smoothly.
§ MR. DENMAN
said, he could only agree to support the second reading of this Bill on the understanding that the whole subject was then referred to the consideration of a Select Committee. As the Bill at present stood it contained much that neither accorded with the existing principles of the law, nor the social happiness of the community. Many changes would be required in the Bill; many clauses of great importance were doubtful; many fresh clauses would be required, and a large amount of law was involved in the discussion. The technicalities with reference to the subject, he need hardly say, 1373 were but little known to the majority of the Members of the House, he doubted if many hon. Members know what the courtesy of England meant, which was to be reserved by the Bill. Nothing but a Select Committee would be a sufficient tribunal for the consideration of this Bill in the first instance; and this was so important a subject that it also ought to be understood that even after the Bill came back from the Select Committee hon. Members reserved to themselves the right to support or oppose any portions of it. For his own part he thought much more good would be effected by altering the 20 & 21 Vict. than attempting to pass so sweeping and mischievous a Bill as the present was in the shape in which it had been introduced to the House.
§ VISCOUNT GALWAY
said, he thought it a pity the author of the Bill had not considered that question in connection with the marriage service. After the speech of the hon. Member for Westminster it was impossible that the marriage service could remain as it was. A woman could hardly say that the would love, honour, and obey a man when it was distinctly averred by the hon. Member for Westminster that she was to be a feme sole. Instead of the words hitherto used in the marriage service, the woman should in future say she was to enter into a partnership with the man on equal terms.
pointed out that the noble Lord who had just spoken appeared to have forgotten that the words of the marriage service were not now in harmony with the existing law, because they declared that the husband endowed his wife with all his worldly goods, whereas, in fact, everything which the wife possessed became her husband's. The tendency of the speech of the hon. and learned Member for Colchester (Mr. Karslake) reminded him very much of the lines in "The Taming of the Shrew,' addressed by Petruchio to Katharina—I will be master of what is mine own:She is my goods, my chattels; she is my house,My household-stuff, my field, my barn,My horse, my ox, my ass, my anything.The question before the House was, after all, one which ought to be discussed upon social grounds. The first point to be considered was whether the Common Law was just or not; and the second was whether the Bill he proposed would remedy the evils, or at least one which would not be, accompanied by evils equal to those he 1374 sought to remove. If he wished to condemn the Common Law he had only to go to the Courts of Equity for that purpose. If they looked at the decisions of the Judges of those Courts they would find them constantly speaking of the severity of the Common Law, and they had introduced a system under which, by means of marriage settlements, all the wealthy classes really escaped from its operation. The system, however, of settlements and trusteeships was quite inapplicable to persons of small means, on account of the difficulties and expenses attending it. It was particularly, however, with reference to the labouring and poorer classes that the evil effects of the Common Law were to be perceived. Since the introduction of the Bill he had received a great number of communications pointing out cases of hardship arising from the law, but would not weary the House by reading more than one or two of them. In a letter which he bad received from the Rev. Septimus Hansard, the rector of Bethnal Green— a clergyman of great experience among the labouring classes— the writer said—My own experience leads me to believe that to raise the social position of women among the lower classes, by securing to them their separate property, would be of great benefit. Cases come before me constantly of idle and profligate men taking the earnings of the industrious wife for their own selves. Not long ago I had to help a. poor woman through her confinement, who had saved from her earnings a little money to meet this emergency. Her husband was a drunkard, and finding she had a supply, ascertained the source, and beat her in her weak condition in the most brutal manner until she delivered up her money. I did not think he would have done this if he had not known that legally the money was his own.Mrs. Phillips of Manchester wrote to him that that subject excited much interest among the working classes, many of whom bad signed petitions in favour of the Bill remark that they had near friends or relations who needed its protection. One married woman in signing the petition, said—I have a husband who is a clever workman, and can earn good wages when he phases, but I go out as a daily cook and make money. This he takes from me, leaving me penniless whenever he chooses. So I have left him, and for the present taken refuge with friends who would put me into some way of earning money but for fear of his coming and seizing all.He admitted that these were exceptional cases; but still they were numerous; and it should be remembered that laws were wanted to restrain not the good and generous, but those who were the very reverse. The remedy of protection orders, referred 1375 to by the Attorney General, was wholly inefficient, many poor women naturally objecting to apply to a magistrate against their husbands. The right thing to do was to repeal the Common Law, which gave everything the wife had to the husband. It was said the measure would introduce divisions into families; but the experience of its working in America refuted that assertion. During the last twenty years almost all the Northern States had legislated in that direction, and had now arrived at the very point at which he wished to place the law of England. That was the case especially in New England, where the principle of his Bill had been in operation twelve years; and in regard to that experiment in New England, he had received a letter from Judge Washbourne, once the Governor of a State, and now the Professor of Law in an American University, in which he said—It is now move than twenty-five years that the subject of the independent ownership by married women of their separate property has been a subject of consideration by our Courts and Legislatures, and the course of action has from time to time uniformly been in the direction of a more rather than a less independent right over their property by married women. I believe any attempt to go back to the Common Law would find little favour at this day. So far as my own observation extends, I have seen no mischievous consequences growing out of the change. It certainly makes wives more independent in the matter of property than the Common Law did. But I have never known it to breed discord or discontent in families; it often saves a family from the consequences of the recklessness or misfortunes of the husband or father by saving from the reach of the creditors the estate which belongs to the wife. I am free to say that although I regarded the first inroad upon the Common Law as to the rights of husbands in their wives' estates with apprehension that it would cause angry and unkind feelings in families, and open the door for fraud, so far as his creditors were concerned, I am so far convinced to the contrary that I would not be one to restore that Common Law if I could.Similar testimony was given by the head of one of the largest manufacturing firms in New England, and also from Mr. Dudley Field, the eminent jurist, of New York. The latter gentleman said that in the State of New York the law had been changed twenty years ago as regards property, but had been extended to earnings only six years. The only part of the Union in which the new system had not been adopted was the Southern States, where, since the emancipation of the negroes, great dissatisfaction had arisen from the state of the law. Formerly, marriage being illegal between slaves, what property the 1376 masters allowed the negresses to hold was their own; but when the slaves were set free, and got married in great numbers, it was found that the black men were very willing to see their wives work while they themselves remained idle, because the law, like our Common Law, gave them power over the wives' earnings. The result was that the rage for matrimony abated, the negresses preferring to remain single and enjoy their own property as they did before emancipation. He had heard it stated that in some of the manufacturing towns of our own country where women worked for high wages a similar phenomenon presented itself — a matter which those who felt strongly about the sanctity of marriage would do well to ponder. There were many collateral questions, such as the extent to which the wife should contribute to the expenses of the household, and others into which he could not then enter, but which had been carefully considered, and with which, whether in Committee of the Whole House, or in a Select Committee on the Bill, he would be prepared to deal. The clause with reference to tenants by courtesy he was ready to omit from the Bill. In conclusion, believing that the measure would confer a great boon on the labouring classes, he hoped the House would not refuse it a second reading.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided: — Ayes 123; Noes 123.1378
|Akroyd, E.||Craufurd, E. H. J.|
|Allen, W. S.||Crossley, Sir F.|
|Amberley, Viscount||Davenport, W. B.|
|Baines, E.||Davey, R.|
|Bass, M. T.||Davie, Sir H. R. F.|
|Bazley, T.||Denman, hon. G.|
|Beaumont, W. B.||Devereux, R. J.|
|Berkeley, hon. H. F.||Dillwyn, L. L.|
|Blake, J. A.||Dixon, G.|
|Bonham-Carter, J.||Dimsdale, R.|
|Brady, J.||Duff, M. E. G.|
|Bright, J. (Birmingham)||Dutton, hon. R. H.|
|Bright, J. (Manchester)||Edwards, H.|
|Browne, Lord J. T.||Ewing, H. E. Crum-|
|Bruce, rt. hon. H. A.||Fawcett, H.|
|Buxton, C.||Fildes, J.|
|Candlish, J.||Fordyce, W. D.|
|Cave, T.||Forster, C.|
|Cavendish, Lord F. C.||Forster, W. E.|
|Cheetham, J.||Gavin, Major|
|Childers, H. C. E.||Gibson, rt. hon. T. M.|
|Clay, J.||Glyn, G. G.|
|Clinton, Lord A. P.||Gorst, J. E.|
|Cowen, J.||Gray, Sir J.|
|Cowper, hon. H. F.||Grenfell, H. R.|
|Greville-Nugent, Col.||Peel, J.|
|Hadfield, G.||Percy, Mjr.-Gn.Lord H.|
|Hankey, T.||Pim, J.|
|Hardcastle, J. A.||Pollard-Urquhart, W.|
|Headlam, rt. hn. T. E.||Potter, E.|
|Henderson, J.||Potter, T. B|
|Holden, I.||Power, Sir J|
|Hornby, W. H.||Price, W. P.|
|Hughes, W. B.||Pryse, E. L|
|Hurst, R. H.||Ramsay, J.|
|Hutt, rt. hn. Sir W.||Robertson, D.|
|Ingham, R.||Roebuck, J. A.|
|Jervoise, Sir J. C.||Russell, A.|
|Kavanagh, A.||St. Aubyn, J|
|Kinglake, A. W.||Samuda, J. D.A|
|Lawson, rt. hon. J. A.||Samuelson, B.|
|Leatham, W. H.||Sherriff, A. C.|
|Leeman, G.||Smith, J.|
|Lloyd, Sir T. D.||Smith, J. A.|
|Locke, J.||Smith, J. B.|
|Lowe, rt. hon. R.||Stacpoole, W.|
|M'Laren, D.||Synan, E. J.|
|Mainwaring, T.||Taylor, P. A.|
|Melly, G.||Thompson, M. W.|
|Mill, J. S.||Trevelyan, G. O.|
|Moffatt, G.||Vernon, H. F|
|Moncreiff, rt. hon. J.||Villiers, rt. hon C P.|
|Monk, C. J.||Vivian, H. H.|
|Moore, C.||Waldegrave- Leslie, hon. G.|
|Neate, C.||Watkin, E. W.|
|Nicol, J.D.||Whitbread, S.|
|O'Brien, Sir P.||White, J.|
|O'Conor Don, The||Whitworth, B.|
|O'Donoghue, The||Winterbotham, H. S. P.|
|Ogilvy, Sir J.|
|Parry, T.||Lefevre, G. J. S.|
|Peel, A. W.||Martin, P. W.|
|Antrobus, E.||Eckersley, N.|
|Ayrton, A. S.||Edwards, Sir H.|
|Barnett, H.||Egerton, E.C.|
|Barrington. Viscount||Eliot, Lord|
|Barttelot, Colonel||Feilden, J.|
|Bass, A.||Fellowes, E.|
|Beach, Sir M. H.||Fergusson, Sir J.|
|Beach, W. W. B.||Floyer, J.|
|Beccroft, G. S.||Galway, Viscount|
|Bentinck, G. C.||Garth, R.|
|Bernard, hn. Col. H.B.||Goldney, G.|
|Booth, Sir R. G.||Goodson, J.|
|Bruce, Sir H. H.||Gore, J. R. O.|
|Bruen, H.||Gore, W. R. O.|
|Calcraft, J. H. M.||Graham, W.|
|Carter, S.||Graves, S. R.|
|Cartwright, Colonel||Griffith, C. D|
|Cave, rt. hon. S.||Grove, T. F.|
|Chambers, M.||Guinness, Sir A. E.|
|Clive, G.||Gwyn, H.|
|Cochrane, A.D.R.W.B.||Hamilton, Lord C.|
|Cole, hon. H.||Hamilton, I. T.|
|Cole, hon. J. L.||Hardy, rt. hon. G.|
|Corry, rt. hon. H. L.||Harris, J. D.|
|Cooper, E. H.||Hartley J.|
|Cox, W. T.||Hay, Sir J. C. D.|
|Dalglish, R.||Henley, rt. hon. J. W.|
|De La Poer, E.||Herbert, rt.hn. gen. P.|
|Dodson, J. G.||Hildyard, T. B. T.|
|Dunne, rt. hn. General||Hodgson, W. N.|
|Dyott, Colonel R.||Holmesdale, Viscount|
|Horsfall, T. B.||Paget, T. T.|
|Hotham, Lord||Patten, rt. hon. Col. W.|
|Howes, E.||Pease, J. W.|
|Huddleston, J. W.||Powell, F. S.|
|Hunt, rt. hon. G. W.||Pritchard, J.|
|Karslake, Sir J. B.||Read, C. S.|
|Kekewich, S. T.||Russell, Sir C.|
|Kelk, J.||Sclater-Booth, G.|
|Kendall, N.||Scourfield, J. H.|
|Keown, W.||Seymour, G. H.|
|Knatchbull-Hugessen, E||Simonds, W. B.|
|Knight, F. W.||Speirs, A. A.|
|Lacon, Sir E.||Stanley, Lord|
|Laird, J.||Stronge, Sir J. M.|
|Lamont, J.||Sykes, Colonel W. H.|
|Langton, W. G.||Taylor, Colonel|
|Lefroy, A.||Thorold, Sir J. H.|
|Liddell, hon. H. G||Tottenham, Lieut.-Col. C. G.|
|Lindsay, hon. Col. C.|
|Lindsay, Col. R. L.||Turner, C.|
|Lopes, Sir M.||Turnor, E.|
|Lusk, A.||Vance, J.|
|M'Lagan, P.||Vandeleur, Colonel|
|Mahon. Viscount||Walpole, rt. hon. S. H.|
|Manners, rt. hn. Lord J.||Waterhouse, S.|
|Mayo, Earl of||Welby, W. E.|
|Montagu, rt. hn. Lord R.||Whitmore, H.|
|Montgomery, Sir G.||Williams, F. M.|
|Morgan, O.||Wise, H. C|
|Noel, hon. G. J||Lopes, H. C.|
|Paget, R. H.||Hogg, Lieut.-Col. J. M.|
Bill read a second time, and committed to a Select Committee.
§ And the numbers being equal, Mr. Speaker stated that he should follow the wise rule usually adopted in similar cases, by giving the House a further opportunity of considering the merits of the Bill at a future stage, and accordingly declared himself with the Ayes.
§ Main Question put, and agreed to.
§ And, on June 23, Committee nominated as follows: Mr. SHAW LEFEVRE, Mr. SOLICITOR GENERAL, Mr. LOWE, Mr. RUSELL GURNEY, Mr. HEADLAM, Mr. BAGGALLAY, Sir JOHN SIMEON, Mr. BEACH, Sir COLMAN O'LONGHLEN, Mr. AYRTON, Mr. GOLDNEY, Mr. BAINES, Mr. BENTINCK, Mr. JACOB BRIGHT, and Mr. POWELL:—Power to send for persons, papers, and records; Five to be the quorum.