§ Order for Second Reading read.
§ MR. RUSSELL GURNEY, in rising to move that the Bill be now read a second time, said, he regretted that the measure was not still in the hands of the hon. Member for Reading (Mr. Shaw Lefevre), to whom, for his advocacy of a similar measure last Session, all interested in this subject must be under the highest obligation. The hon. Gentleman felt, however, that his official duties would prevent him from taking charge of the Bill, and at his request he (Mr. Russell Gurney) had undertaken his duty. The Petitions which had just been presented in favour of the Bill showed not only a great but a growing interest in the question, and at this he was not surprised when he considered the nature of the Bill, and the extent of the injustice which it was designed to remedy. It was now proposed that, for the first time in our history, the property of one-half of the married people of this country should receive the protection of the law. Up to this time the property of a wife had had no protection from the law, or rather, he should say, in the eye of the law it had no existence. From the moment of her marriage the wife, 761 in fact, possessed no property; whatever she might up to that time have possessed, by the very act of marriage, passed from her, and any gift or bequest made to her became at once the property of the husband. Nay, even that which one might suppose to be her inalienable right, the fruit of her mental or bodily toil, was denied her. She might be gifted with powers which enabled her to earn an ample fortune, but, the moment it was earned, it was not hers, it was her husband's. In fact from the time of her entering into what was described as an honourable estate, the law pronounced her unfit to hold any property whatever. It was true that this state of the law had come down to us from a very early period of our history; but in those days it was accompanied with counterbalancing advantages, and did not bear upon the wife with the same harshness as at present. Property was then almost always landed property; even leases for years were almost unknown: with respect to real property belonging to a married woman, though the husband enjoyed the rents and profits he could not dispose of the land without the wife's consent; and at his death it was once more at the wife's absolute disposal. In return for the husband's rights in the real estate of the wife, she was formerly entitled to dower in respect of his real estate, and by that right of dower enjoyed upon the death of the husband one-third of the rents of all the lands which at any time during marriage he might have possessed. Of this right, by comparatively recent legislation, she had been deprived, and now the state of the law might, with sufficient accuracy, be said to be this—that the husband had absolute dominion over all which, but for marriage, would have been the property of the wife—except that he could not part with the land without the wife's consent—and that he retained absolute dominion over all which at any time during the marriage had been his own. This was the law of England—a law so unequal and so unjust that it could never have lasted to the present day had it not been for the means of evading it, sanctioned and encouraged by our Courts of Equity. The law itself was praised and held up to admiration, and its principle must be contended for as right by those who opposed the principle of his Bill; but the common sense and the right feeling of 762 mankind had revolted against it, and had, as far as they could, worked out a partial remedy, and the strange thing was that while the courts on one side of Westminster Hall upheld the law in all its stringency, the courts on the other side have striven hard, and to some extent successfully, to evade and defeat it. He need not say that the chief mode of defeating it had been by means of marriage settlements. Scarcely a case occurred in which, on the marriage of a woman of fortune, she did not deprive herself of the control of her property, and vest it in trustees for her separate use. The Common Law ignored these trusts, but they were sanctioned and encouraged in equity. But the Courts of Equity had gone much further than this. They had, indeed, proceeded gradually. They first recognized the wife's separate estate in the hands of trustees; the next step was that, if property were bequeathed to a wife during coverture, and the husband could not obtain possession of it except through the intervention of equity, the Court would refuse to interfere unless he recognized the wife's right to have a portion of the property settled upon her. The Court of Chancery was, however, very tender as to the amount it would settle on the wife in such a case; for although a husband might have deserted a wife and be living in adultery, the wife supporting her family, a portion of the property would go to the husband or his creditors; one of the most distinguished of our Equity Judges observing that, though the court would be tender of the interests of the wife and children, it must also consider the wives and children of creditors. The next step taken by the Court of Equity in the interest of married women was to give the wife a settlement upon her application, even where the husband did not require the help of the court to obtain possession of property coming to her. They had since recognized her right to sue and to be sued. What was the meaning of all this? How was it that courts of co-ordinate jurisdiction were thus at variance on what was sometimes described as a fundamental principle of our law, on which our social fabric was said to depend? The House would remember that it was not in some single and accidental case that Courts of Equity stepped in to prevent an unjust operation of the law. It was the principle itself 763 on which they differed. If the doctrine of the Common Law were the right doctrine, then the elaborate system which the Courts of Equity had sanctioned, and even framed, must be wholly wrong. The fact was that as every marriage settlement was a silent protest against the law so did every decree of the Courts of Equity on this subject proclaim their sense of its impolicy and injustice. And it was well to observe that no dissatisfaction was caused by this constant interference of our Courts of Equity. No one complained of the recognition of these trusts—no one complained of the securing to the wife a large portion of a legacy bequeathed to her after marriage—no one complained even of the right given to the wife to sue and be sued. All felt it to be just, and that a partial remedy was thus applied to that which would otherwise be an intolerable wrong; but it was only a partial remedy after all, and the misfortune was the greater because it was a remedy altogether out of the reach of any but the comparatively rich. He supposed that a marriage settlement in the ease of a fortune of £200 or £300 was scarcely ever known. Small properties would not bear the expense of a settlement; and the difficulty which persons in a humble position would find in obtaining trustees was almost insuperable, and it was a mere mockery to send such persons to the Court of Chancery for protection. But while scarcely applicable to the case of women with small fortunes, it was wholly inapplicable to that of women earning wages. The last Census showed that there were 3,000,000 of married women in this country, upwards of 800,000 of whom were earning wages, and upon this large class of persons a law, which he might almost say was confessedly unjust, and which would not be endured by the rich if it were not for the relief afforded by our Courts of Equity, bore with unmitigated harshness. The Committee of the last year heard evidence from persons in all classes of life—clergymen, police magistrates, clerks, manufacturers, district visitors, and working men—who were unanimous in their opinion of the impolicy of the law, and the strong feeling which women entertained of its injustice. He would not weary the House with many extracts, but he would refer to the evidence of an intelligent police magistrate, who spoke of the numerous 764 cases which were mentioned to him of women, after being left by their husbands, making, through their own exertions, their homes comfortable, and finding those homes upset by the return of their husbands, who took possession of the whole of their property by virtue of conjugal right. Testimony to the same effect was given by others; but, as to the strong feeling entertained by the working women on this subject, he would refer the House to the important evidence given by the hon. Member for Sheffield (Mr. Mundella) who had 2,000 women earning wages in his employment, of whom two-fifths were married. That hon. Member stated that he had talked with the poor women on this subject, and the mere mention of it brought tears to their eyes, and one of them told him that she lived in terror lest, upon returning to her home on any occasion, she should find everything she possessed swept away. The feeling of dissatisfaction at the present state of the law was not confined to the wives of the working men, but the men themselves felt the hardship to which their wives were subject; and the hon. Member for Sheffield—than whom no person had a better right to speak with authority on the subject—said he was sure that all the sensible and intelligent working men would be in favour of a change in the law. But even stronger evidence was given on this subject by the secretary of a Co-operative Society at Rochdale, who was examined before the Select Committee. The society consisted of 7,000 members, who were entirely working people, and a great number of married women, registered as shareholders, received the profits derived from their shares. Husbands had sometimes made what was, no doubt, a legal claim, but so strong was the public feeling in Rochdale in support of the payment of those profits to the women that none had ventured to enforce their claim. But what he wished to call the attention of the House to was this—that this society of working men and working women, managed entirely by a Committee of working men, were unanimous in their desire to secure to married women the undisturbed possession of their earnings. He was aware that general statements of this kind hardly produced a strong impression, and he would, therefore, refer to two cases which were very recently 765 investigated in the Court over which he presided. One was the case of Susannah Palmer, from whom he had that day presented a Petition in favour of the present Bill. She was convicted of unlawfully wounding her husband. She had been married to him for many years, during which she had been most brutally treated by him. On one occasion she and her children were turned out of their home by the husband, and had to remain in the street all the night. The only protection she could obtain from the magistrates was temporary and insufficient for her purpose. He would not enter into particulars, but at last it became clear that if she was to have a regard to her single daughter's honour, it was impossible for her to remain together with the daughter under the same roof with her husband. She took another place, and by her own industry and that of her children, she managed to obtain a livelihood, and get a few things together, but no sooner was this done than the husband made his appearance, and claiming a husband's rights, seized the things, sold them, and left her without a bed to lie upon. This did not happen only once—she was, he had almost said, cursed with a spirit of industry and independence, which led her to struggle with her difficulties, and made her worth pursuing. The facts of this case being detailed in court attracted attention, and the result was that a small subscription was raised, a place was taken for her to live in, and some things were got together and put in it; but they could not be made over to her, for, if they were, they would at once become the property of the husband. Everything, therefore, stood in the name of the sheriffs of London, for thus only could be secured to her a home. This woman now craved of the House that protection might be afforded to her, and her hard earnings secured from what she, poor simple woman, in her ignorance of law, described as "robbery." Another case, which had been before the court since he gave notice of this Bill, was that in which a man called Joseph Gray was concerned. He had been sentenced to fourteen years' transportation, and at the end of seven years he received a pardon, on the condition that he should not quit the colony. His wife carried on a small business in this country, and, allowing her affection for her husband to over- 766 come her reverence for the law, she sent the man some money to enable him to come back to England. She soon had cause to regret her conduct, for it was not long before she was obliged to give her husband into custody for assaults on her. She at last was persuaded to allow him 30s. a week, if he would keep away from her. This arrangement, however, only lasted for a short time; for he came back to her house, and was in the act of selling her goods, when the police, having learnt what was his position, took him into custody. As this man had been released from a captivity of seven years upon a, condition which had been broken, he, as Judge, felt he was only doing what was right in remitting him again to imprisonment for that term of seven years; and, in declaring that punishment, he felt a satisfaction which it was not usual for him to feel in passing a severe sentence, as it was only by that sentence that the peace and comfort of the wife's home could be secured. These cases might be multiplied a hundred-fold. He would venture to say that there was not a district visitor in our crowded towns who had not met with many, and it would be for the House to say whether they would allow a law to continue in force which offered temptation to the strong to oppress, and filled the weak with a sense of injury and wrong. Various modes, some partial and all of them totally inadequate, had been suggested to remedy the evil complained of. Sometimes they were told that they ought to afford increased facilities for divorce; but he did not think that view would meet with the sanction of the House. Sometimes it was said that more power ought to be given to magistrates with regard to orders of protection. That might be a partial remedy, but it would not meet the evil to the full extent. He ventured to say that the only remedy that struck at the root of the evil was to allow the wife to retain her property with the same rights and subject to the same liabilities as her husband. That was the remedy proposed by the present Bill; and, as the measure might not be found in all its clauses to carry out the proposed object, he would suggest, if the House agreed to the second reading, that the Bill should be referred to a Select Committee, where the clauses 767 might be more carefully considered. The principle embodied in the measure had already been recognized in many important parts of Her Majesty's dominions. The Commission engaged in the preparation of a Code for India had reported their opinion that a man should not by the operation of law acquire any interest in his wife's property during her life, but that she should have the same rights over it as if she were unmarried, and should possess full power to dispose of it by will. The Commissioners added that such rights were frequently reserved to women by marriage settlements. To that Report the names of the Master of the Rolls, of Vice Chancellor James, of the Chancellor of the Exchequer, and of Sir Edward Ryan were appended; and the recommendation thus made had been already carried out in India by the Succession Act. Other parts of the proposed Code had been considered open to question, but on this point no difficulty or hesitation was felt. That fact constituted, he thought, no small authority in favour of the Bill he now recommended to the House. A similar law prevailed in Canada; and the example of that country carried peculiar force with it, because it had enjoyed the opportunity of comparing the old French law on the subject, that prevailed in Lower Canada, with the English law of Upper Canada, and of benefiting by the experience of the United States in the matter; the result was that the English law had been abrogated, and married women allowed to retain the property they possessed before marriage. One difficulty which the Select Committee had to encounter arose out of the liability of the husband for his wife's debts and the maintenance of his children; but it did not appear to the Committee to be necessary to make any alteration of the law in those respects, as the husband was only bound to pay for necessaries supplied to his wife—and her possession of property of her own would negative the supposition of necessity—and, with regard to debts contracted by her, the husband was not liable, unless, in contracting them, she acted as her husband's agent. The presumption of agency might arise from her being the mistress of her household, and also from the fact of the goods ordered being suitable to her condition in life; but it had been decided in a recent 768 case, in which the goods were found to be necessaries, and the wife had not sufficient means of her own for her support, that the husband was not liable because it was shown that the agency had been determined, and that she therefore had no authority to pledge the credit of her husband. The liability of a husband to support his wife and children was, indeed, far less than was imagined; all that it amounted to being a Poor Law liability. With regard to the children, the only liability of the husband was to preserve them from starvation, and this he was bound to do to save himself from the penalties of the Criminal Law. He (Mr. Russell Gurney) would not in the least object to a provision that any liability which Poor Law Guardians had power to enforce against the husband they should be able to enforce also against the wife if she had property of her own. Judging from past debates, he presumed that the first objection to the present Bill would be that it was a revolutionary measure, and that phrase, he supposed, meant that the Bill effected a great change. He admitted that it did, but when it was considered that the course he now asked the House to pursue had been adopted by bodies not very remarkable for revolutionary ideas—the Courts of Equity—the House, he fancied, would not be deterred from supporting the Bill on account of its being called revolutionary. Then, it was said, that there bad wives and foolish wives. Undoubtedly there were, but he believed that the very last ground on which it would be safe for the opponents of the Bill to rest their arguments was the comparative virtues of the two sexes. It was a fact that in all good working people's families the wife was made the treasurer of the household. But it was said that the success of the present measure would be fatal to family and domestic harmony. He confessed that, as a married man, he was almost ashamed to reply to such an argument. He could not understand how anyone who really knew what domestic harmony was could suppose that that which constitutes the glory and the joy of married life depended on the husband having possession of his wife's property, and the power to stop the supplies. It not unfrequently happened that Statesmen had to take "a leap in the dark." They see the extent of an evil—they recognize the necessity of a 769 change, but they have no experience to teach them as to what will be the consequences of the change; but, in the present matter, there was abundance of experience to guide the House in coming to a decision. The law of England on the subject was entirely peculiar, and there was not another civilized land, he believed, in which such a law at present prevailed. There was no such law in France, in Russia, in Prussia, or throughout Germany. It had prevailed formerly in the United States, but upwards of thirty years ago the States began to change it. Vermont took the lead in reform, and all the New England States adopted the change. The new law prevailed throughout the Western States of America, in some of which it had been made part of the Constitution. The only complaint now made was heard in the Southern States, where coloured women lamented that they had, on becoming free, lost the control they formerly possessed over their earnings. In Jamaica he heard, when he was there, that mothers were unwilling that their daughters should marry, because the husbands would obtain power over their earnings; and this was one reason to account for the immoral state in which a large number of the population were living. Nothing could be more conclusive in support of the proposal he now made than the evidence which was given in respect to America, for the Committee were told, by Mr. Dudley Field and others who were very capable of judging, that those who had been the strongest opponents of the new law in that country were now its strongest supporters. But he could not help thinking that the practice in England afforded the strongest possible testimony in favour of the proposition embodied in the present Bill. No wealthy parent allowed his daughter to marry until her fortune was secured to her; no Court of Equity allowed a female ward to be married without a satisfactory settlement. Those who had wealth, and friends were, to a certain extent, already cared for. He asked the House to extend to the poor and the friendless the same protection as the natural affection of the parent in the one case, and a sense of justice on the part of Courts of Equity in the other, afforded to those who were the subjects of their care. He moved that the Bill be now read a second time.
§ MR. JESSEL, in seconding the Motion, said, it would be vain for him to attempt to convince the House if it were not already convinced by the admirable speech of his right hon. Friend. This Bill was emphatically a poor woman's Bill, for the rich were already sufficiently well protected. The existing law was a relic of slavery, and the House was now asked to abolish the last remains of slavery in England. In considering what ought to be the nature of the law, they could not deny that no one should be deprived of the power of disposition unless on proof of unfitness to exercise that power; and it was not intelligible on what principle a woman should be considered incapable of contracting, immediately after she had, with the sanction of the law, entered into the most important contract conceivable. The slavery laws of antiquity were the origin of the Common Law on this subject. The Roman law originally regarded the position of a wife as similar to that of a daughter, who had no property, and might be sold into slavery at the will of her father. When the Roman law became that of a civilized people, the position of the wife was altogether changed. She was allowed, as was proposed by this Bill, to have the absolute disposal of her property, and full power of contracting, with the sole exception that her immoveable property was not to be alienated without the consent of her husband. The ancient Germans—from whom our law was derived—put the woman into the power of her husband in the same sense as the ancient Roman law did. She became his slave. The Law of Slavery, whether Roman or English,—for we once had slaves and slave laws in England,—gave to the master of a slave the two important rights of flogging and imprisoning him. A slave could not possess property of his own, and could not make contracts except for his master's benefit, and the master alone could sue for an injury to the slave; while the only liability of the master was that he must not let his slave starve. This was exactly the position of the wife under the English law; the husband had the right of flogging and imprisoning her, as might be seen by those who read Blackstone's chapter on the relations of husband and wife. She could not possess property—she could not contract, except as his agent; and he 771 alone could sue if she were libelled or suffered a personal injury; while all the husband was compellable to do for her was to pay for necessaries. It was astonishing that a law founded on such principles should have survived to the nineteenth century. The reason was because the laws of this country were made by the rich and for the rich, and wealthy women had no cause of complaint in England. They received here better treatment in regard to their property and rights of contract than in any other country with the laws of which he was acquainted. When a daughter of Belgravia married she had a settlement. If the husband owned landed property, he had to secure her out of it pin money and a jointure, and to settle the estate upon the eldest son, and to charge it with certain portions for the other children; and while he did this, the wife retained the separate use of her own property for her life, and it was generally settled upon the children after her decease, and it was also usual to provide that any further property coming to her should be settled in the same manner. This law was nearly 200 years old, and we were entitled, therefore, to argue from experience as to the effects of this method of settlement. Now, he would give the House just one illustration of the manner in which the Law of Settlement was sometimes taken advantage of. It came within his knowledge at a very early period of his professional career. A noble Earl whose Irish estates did not produce an income at all equal to his wants or wishes, married the wealthy daughter of a plain citizen, the large fortune of the lady being settled upon her in the usual way. The happy couple went to the Continent, but, landing at Dover, on their return, the husband was confronted by a sheriff's officer, who took possession of his portmanteaus. The lady's were not touched. When the husband's trunks were opened, they were found to be full of clothes and jewellery of a very valuable description, even for an Irish nobleman, being worth more than £1,000. The joy of the creditor at this capture was but of short duration, for within twenty-four hours he was served with notice of a Bill in Chancery, and the affidavits filed in support of it stated that the seized goods were purchased by 772 the wife and with her money, that the invoices were made out to her, that the receipts for payment were given to her in her name, and that the husband had signed a paper declaring that the articles in question were only lent to him during the will and pleasure of his wife. Upon that statement the Vice Chancellor granted an injunction. He (Mr. Jessel) was counsel for the creditor, and in the face of these facts was obliged to advise him to give up the articles and submit to the injunction, and to ask the Countess to let him off the costs, which her ladyship was good enough to consent to. The case was kept out of the newspapers; the noble Earl walked about London in his wife's coat and trousers, and probably not one of his friends at the club or in the park ever suspected that the nobleman's "outer man" belonged to his wife. This showed what might, under extreme circumstances, happen, though he did not say that it was a common case. He supported this Bill because he believed it would raise the position of the wife without injury or injustice to the husband. This Law of Settlement had done no harm among the rich, and a law analogous to it could do no harm, but would do great good, among the poor. He thought he had clearly shown that in this Bill there was really no new law. It simply proposed to return to what was the law of the civilized world before the incursion of barbarians brought back slavery and darkness. The experience of the Roman law for ages, of the law of England in regard to marriage settlements for 200 years, and of the law of Canada and the United States during the last fifteen or twenty years might be cited in its favour, and was not that a sufficient amount of experience upon which to found an Act? In the debate last year, it was argued by the opponents of the Bill that under the present law the wife enjoyed perfect immunity from the payment of her debts; but the fact was, she gave up everything and got nothing, and that was called immunity. Again, it was said that the husband gave the wife protection and support in return for confidence. But it was too often protection such as a great orator said the East India Company gave to the native princes of India—"such protection as vultures give to lambs, covering and devouring them." Then it was said that the law had 773 worked well in practice. But that was always the argument when great and useful reforms were advocated; the same plea had been advanced in favour of slavery itself. Again, it was argued that after marriage the wife might be influenced to make over her property to her husband; but, even so, she would be no j worse off than at present; if she was coaxed out of her money, at any rate she would get the benefit of the coaxing. But the Roman law, he might observe, did not recognize irrevocable donation between the husband and wife, and, if thought desirable, some such provision could be introduced into this Bill. To the argument that they should not legislate for indolent, reckless, and improvident husbands—that they should not legislate for the few—he replied that they always did and must legislate against the minority, for the benefit of the majority. It is the minority who steal, rob, and murder. To the argument that the wife might protect her husband's property against his creditors, he replied that a provision in the Bankruptcy Law could easily be framed to meet such a case; and at any rate there was no more reason to apprehend this practice from the wives of poor men than from those of rich ones. It had been also said that the Bill would cause discord and immorality. The learned Recorder had refuted the argument as to discord. As to immorality, he would admit that he had known two or three cases in which a wife had used her separate property to maintain an adulterer. These instances were, however, very rare, and, after all, they were simply giving the wife her own property by this Bill. But if this were an objection to the Bill, were its opponents willing to act in the analogous case, and were they willing to deprive the husband of his own property because it sometimes was applied to support a mistress? He believed that by passing this Bill they would remove a great grievance under which wives in the humbler classes laboured; that they would raise the status and position of married women in those classes; would procure for them more respect and consideration from their husbands, and would thus be conferring, indirectly, a benefit on the husbands themselves; for oppression degraded and injured the oppressor almost as much as the oppressed. This Bill, too, would do much to 774 save this country from the reproach that was sometimes—and not altogether unjustly—cast upon it, that our poor women were worse treated by their husbands than those of any other civilized country in the world.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Russell Gurney.)
MR. LOPES, in rising to move that the Bill be read a second time that day six months, said, he was conscious of the difficult task he had undertaken in proposing the rejection of a measure introduced by the right hon. Member for Southampton (Mr. Russell Gurney), but he firmly believed the provisions of the present Bill were distasteful to the majority of the legal profession, and to such of the public as understood its tenour and scope. He objected to it because if it became law it would go far to impair the confidence that ought to exist between husband and wife, and which was the mainspring of domestic happiness. The support of this Bill was put upon a false issue—namely, the protection of the earnings of married women. He was strongly convinced of the necessity of such a measure, and this was no new concession on the part of the opponents of this Bill. Last year the then Attorney General, Sir John Karslake, admitted that this grievance existed, and said that he would concur in any alteration of the law, having for its object the better protection of the earnings of married women. This was also his (Mr. Lopes') wish, but he objected both to the form and principle of this Bill. A large number of those who had signed Petitions in its favour had done so because they believed it to be a poor man's Bill and did not understand its operation. The present law of England was that on marriage, in the absence of a marriage settlement, the personal property of the wife vested in the husband, as well as—to a limited extent—her chattels, and the husband having a right to deal with these while he lived, but not to dispose of them by will. He had also a life interest in the income of her real property, the ultimate destination of which rested with the wife; and by the "courtesy of England" he had a right to a life interest in his wife's estates of inheritance if he survived her and had a child by her capable of inhe- 775 riting. But he would ask the House to consider the liabilities of the husband under the present law. He was liable for all debts contracted by his wife before marriage, to support his wife and children, to pay her debts, and he was also liable to pay damages for any tort or civil wrong that she might commit. It really came to this, that the wife was at present shielded behind the husband from any hostile interference of the law; and so jealous was the law of the impunity of the wife, that if she committed a criminal offence in the presence of the husband the law presumed that that offence was committed at his suggestion and she was acquitted. The Preamble of the Bill began by declaring—"Whereas the Law of Property and Contract with respect to married women is unjust in principle." He maintained that this was incorrect, and that the law in question was not unjust in principle. It was in accordance with public feeling which recognized the fact that the wife was the weaker vessel, that there ought to be only one head of the house, and that the husband was the proper head, being physically, at all events, better fitted to bear the brunt of the outer world than his wife. The proposed change was to enable the wife to alienate her property as she pleased, to sue and be sued, and to act in every respect as if she were a feme sole, or indeed a man; but the husband would still be liable to pay the wife's debts and to maintain their children. In common justice, if the husband had still the liabilities he ought to retain the advantages. How would the Bill work? Take the case of a husband and wife who had each £1,000 a year, and assume that this Bill became law. Suppose they engaged a house, incurred certain liabilities for rent and taxes, and sent their children to school. Who was to pay? The wife might refuse. The person who took the house was most likely the husband, and he, being the contracting party, would be obliged to pay these debts, and to maintain and educate the children, and to pay all the expenses of the household, while the wife would remain behind the scenes, and would not pay a penny. Then, as to the things ordered by the butler or housekeeper. Who was to be liable for them if the husband and wife severally disputed the liability? 776 The female servants were usually engaged by the wife, but she might say her husband was responsible for these also. Then, take the case of a husband married to an extravagant woman to whom he was greatly attached. She would incur, perhaps, enormous debts, and would be sued. Execution would be issued, and when her person was about to be seized the husband must either allow his wife to go to prison or else impoverish her and the children by paying her debts. The hon. and learned Member for Dover (Mr. Jessel) might reply that they were about to do away with imprisonment for debt, but not in all cases, and it would not be contended that persons were in future to be allowed to incur any amount of debt without inconvenience. The punishment would fall on the wife it might be said, but the screw would be put on the husband, and unprincipled creditors would induce the wife to incur extravagant debts, relying upon the affection of the husband. Suppose, again, that the wife had a taste for speculation, and became engaged with bubble companies. If she were threatened with arrest, the husband and the wife and children might be impoverished from his wish to shield her from the consequences of her indiscretion. The Bill, if passed into law, would moreover open the door to fraud. They might have a husband engaged in the grocery and his wife in the millinery trade. The millinery might succeed and the grocery business might fail, and the husband might gradually transfer his capital and the proceeds of the grocery stock to the millinery department. When he stopped payment there would be nothing for the creditors in the grocery, and the husband might retire with his wife into the millinery business. It might be said that the case he was about to mention was an extreme one, but the way to try principles was to push them to their logical results. Suppose a wife the legal owner of a house in which she and her husband lived, what was to prevent her from bringing an action of ejectment against the husband, forcing him to leave, and next day introducing some stranger into it? He only gave this in illustration of the extraordinary defects of this Bill. An unprincipled man may marry a girl with a large sum of money, might treat her kindly for a time, and induce her to convey the whole 777 of her property to him. If he then began to treat her tyrannically she would be worse off under this Bill than if she were protected by a marriage settlement. The hon. and learned Member for Dover might say she would not be worse off than under the present state of the law, but he maintained the contrary, because but for the Bill her property would be tied down by a marriage settlement. A married woman under this Bill would not be liable for her own wrong. Suppose the woman were driving her carriage and ran over some one. The wife must be sued; but if she had no property of her own the injured party would get nothing from her, and it would only be got from the husband by the kind of pressure to which he had alluded. The Bill, so far from being advantageous to the poorer classes, would inflict great hardship and inconvenience on them. Take the case of a journeyman whose affairs took him from home every day, and whose wife was arrested. He would be obliged to stay at home and take care of the children. The Bill would interfere with the wife getting the necessary credit, for tradesmen would hesitate to supply her with the articles requisite for her family unless the husband were there to give the order for the goods. It was said that it was unreasonable to oppose the Bill, because it did nothing more than the. custom of all mankind had done by means of laws in other countries and marriage settlements in this. And the Chancellor of the Exchequer in his speech last year said it was the duty of the State to place itself in loco parentis to women of the humbler classes, and to take the same precautions on their behalf as a guardian would take for his ward. There was, however, a fallacy in that argument—
——Pergis pugnantia secumFrontibus adversis componere.It was comparing things which were diametrically opposite in their character. Marriage settlements were not sanctioned by the law in order to protect the wife against the husband, but to protect her against her own improvidence as well as his, and to secure an inalienable provision for their children. This Bill did nothing of the kind, for it left the property absolutely in the hands of the wife, to do exactly what she pleased with it. Therefore, the case of the wife, 778 provided for by marriage settlements, and the provisions of this Bill were entirely dissimilar. Then, again, he believed that in the Court of Chancery, where trusts were created for a separate estate, it was the practice to add clauses against anticipation, of which nothing, of course, would be seen under this Bill. When money, too, came to the wife after marriage, and it was sought to enforce her equity to a settlement, the Court regarded not only the interests of the wife but of the husband, and, more than all, the interests of the children. It was said that the principle of this Bill had answered in America, but he was not of opinion that the success of any particular kind of jurisprudence in America was a criterion that it would answer here. It was like applying the same medicine to two different constitutions—to the infant and the man of mature age. England was an old country with matured habits and confirmed sympathies; America was a new country, with the elastic: flexibility characteristic of youth. Bather than look to America he would ask the House to turn its attention to the homes of England, nurtured and fostered under the existing law, and to say where could be found so much domestic happiness, so much conjugal felicity, and so much assiduous care for the offspring of marriage. He was not surprised at the proposal to refer this Bill to a Select Committee, because it was crude and unfit for adoption, and because the Committee which sat last Session had recommended that the subject should undergo further inquiry. If hon. Members would read that Report and the evidence taken by the Committee they would not find a single independent or unprejudiced opinion given by any of the witnesses. Believing that the whole tenour of the Bill was to ignore the authority of the husband, that it would diminish the proper responsibility of the wife, and that it was likely to lead to the formation of a domestic imperium in imperio, he opposed the second reading. The spoliation of the savings of the women of the humbler classes by dissolute and idle husbands was an admitted evil which required an adequate remedy; but the way to remedy this special and exceptional wrong was not by introducing a measure which would alter the relation 779 of husband and wife as it was established by every law, human and divine.
MR. STAVELEY HILL, in seconding the Amendment, said, the Bill might be looked at in its relations both to the upper and richer class of married women, and. the lower and poorer class. The former class would be left much in the same position as it was in at present, because of the power of settlement which in the case of women in the upper class was generally exercised, being left untouched by the Bill. It was said, however, that the measure would lead to the protection of J wives of the poorer class. For his part, he would most readily support any measure for protecting that class of married women from the spoliation of their savings by their husbands; but that might be done very easily, indeed, without raising the complicated and difficult questions of law that would be raised by this Bill. It would be remembered that when the Divorce Act of 1857 was passed, a clause was inserted in it which provided that a wife deserted by her husband might, on application to a magistrate, obtain an order for the protection of her past and future earnings. All that was necessary was to strike out the words relating to the desertion by the husband from that clause, and then the woman could apply to the magistrate, or, if it were thought better, to the County Court Judge, and the whole matter would be done and a proper protection afforded without the necessity for this Bill.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Lopes.)
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. SHAW LEFEVREsaid, that though he felt some personal regret at his inability again to take charge of the Bill, he was sure that it had a better chance of success in the hands of his right hon. Friend the Recorder (Mr. Russell Grurney), than whom, from his judicial position and high character, no one was better entitled to the confidence of the numerous heads of families who would be affected by it. He hoped he might be allowed to make a few observations, not on the part of the Government, but of himself. He must congratulate the hon. and learned Member for 780 Launceston (Mr. Lopes), who last year gave an unmitigated opposition to the measure, on his willingness to give some protection to the women of the poorer classes. If, however, his intention was only to protect the earnings of married women on special application to a magistrate, this would be utterly inadequate; but if he was willing to give absolute protection to such earnings, he had certainly made a great, and it was to be hoped would soon make a still further advance. The Select Committee over which he presided last year, took the evidence of a considerable number of persons interested in the subject, but the lateness of the Session did not allow them to go into the details of the Bill. He therefore thought it better to ask the Committee to report generally in favour of its principle, leaving details to be settled by a Committee in the present Session. The Committee had accordingly simply expressed approval of the principle of the Bill. It was essentially a poor woman's Bill, and was designed for the benefit of that large proportion of the population to whom the system of equity and marriage settlements was altogether inapplicable. That system was really one for the rich, while the Common Law, giving all the wife's property to the husband, was one for the poor. It was often urged in defence of the Common Law that the husband was bound to support his wife, and was also liable for her debts; but, as his right hon. Friend had pointed out, the only case in which that obligation could be enforced was when the wife had become chargeable to the parish, the parish authorities being able, under a recent Act, to recover the expense of the wife's maintenance. The wife had no other remedy, and though the husband might have £5,000 a year, she could not oblige him to spend £50 a year upon her. His liability for her debts was likewise of a trifling character; for the law simply placed her in the position of an agent, in the absence of evidence to the contrary, and he might, at any moment, withdraw his authority, and restrict her in any manner he thought fit. Chief Justice Erie, in a case which came before the Court of Common Pleas five or six years ago, said—
We consider that the wife cannot make a contract binding on her husband unless he gives her his authority as his agent to do so. When a 781 plaintiff seeks to charge a husband on a contract made by his wife, the question is whether the wife had his authority, express. or implied, to make the contract; and if the authority is to be implied the presumptions which may be advanced on one side may be rebutted on the other; and although there is a presumption that a woman living with a man and represented by him to be his wife has his authority to bind him by her contract for articles suitable to that station which he permits her to assume, still this presumption is alway to be rebutted.Mr. Baron Martin, too, had remarked that the presumption arising from cohabitation might be rebutted—the question being one of agency—and that if a husband told his wife he would not permit her to have a particular land of dress she could not bind him by ordering it; Chief Baron Pollock, in the same case, adding that the apparent result of the authorities was that a tradesman trusting a married woman must take his chance of payment. He could not see, therefore, that the Bill was open to objection, because it did not relieve the husband from his liability with regard to the wife's debts; but if the House thought fit further to restrict that liability he should offer no objection. As to the evidence taken by the Committee, it might, perhaps, be regarded as vague and general; but the reason was that, though evidence was offered on many particular cases of hardship, these were found to involve questions of fact which might have been disputed. A lady, for instance, was anxious to be examined, stating that her husband had taken to gambling, and insisted on taking the receipts of a profession by which she had been earning £400 or £500 a year; but the husband entirely denied the truth of her statement, and she was, therefore, not examined. There was not a single Member of the Committee of last year who was not persuaded that some change was required, and the only question was as to how far that change should go. Several suggestions were made—one of them being an extension of protection orders to cases where the husband was addicted to cruelty, drunkenness, or other misconduct. All the witnesses, however, agreed that this would be inadequate, for, as long as a wife was living with her husband, she would not give publicity to her domestic trials by applying for such an order, and before the application was made her property would have been 782 swept away. As to an extension of the system of settlements—which the hon. and learned Gentleman (Mr. Lopes) preferred to this Bill, on the ground that the latter would not protect the wife against herself—and making them compulsory in the case of the lower classes, the witnesses all stated that that system was quite inapplicable to the poor, who would find great difficulty in obtaining trustees, and who, further, did not want their property to be so tied up that they could not touch the principal. The majority of the Committee were consequently in favour of giving the wife an absolute right to her own property. He was aware that there were difficulties in the way, and that the details of the Bill would require further consideration; but he believed they would eventually be approved, being substantially identical with the statutes of Canada and the United States. As to the maintenance of children, he believed the Poor Law liability resting on the father applied also to the mother; but if this was not the fact he agreed that it should be so applied if the Bill passed. Mr. Dudley Field, however, had stated with regard to the wife contributing to the household expenses:—This is an idea entirely repugnant to Americans. It is not not only enforced, but it is the universal rule established by law, and approved by an unanimous public sentiment, that the husband is to provide for the whole family according to his means, without calling upon his wife for any assistance, whatever her means may be. If he is not able to provide sufficiently for his children, the wife and mother may be compelled to do so by the same process which would be used against him; but she cannot be compelled to provide anything but bare necessaries. It is usual for a wife who is richer than her husband to supply what may be necessary to keep the family in such comfort as her means will warrant, but this is entirely voluntary. I have never heard any change in the law in this respect proposed. It would be offensive to the pride which all men among us have in assuming the responsibility of their families.Then it was objected that the security of creditors would be diminished under this Bill. His hon. and learned Friend the Member for Dover (Mr. Jessel) had already dealt with this objection. The present law gave the husband opportunity of defrauding creditors by settling property on his wife, but he understood that the Bankruptcy Bill of the Attorney General would provide for this, and the objection on this head was one not of principle, but of detail. Besides that, he might state that the American law was 783 almost identical with the provisions of this Bill, and the American Judges, as appeared from the evidence taken by the Committee, held that the Common Law had not been repealed to a greater extent than the express words of the statute implied; so that for most purposes the husband and wife were still one person, and could not bring actions either of ejectment or of any other kind against each other, nor could the husband make over property to his wife. He could not doubt that our Judges would construe the Act in the same way. The objection that the Bill would create domestic discord was equally applicable to marriage settlements; but hon. Members must be acquainted with many instances of such settlements, and his own experience had not shown him that greater disunion existed in those families than in others. Moreover, there was evidence of the satisfactory working of the new system in Canada and America, and notwithstanding the hon. and learned Gentleman's argument that to apply American experience to England was like prescribing the same medicine to two persons of different constitution—he could see no substantial difference between the two countries. In New England, particularly, home and social relations were precisely the same as in this country, the only difference which had struck him being that the position of a wife was better, and that she was treated with more respect in private as well as in public. Whether this was the cause or the consequence of the change in the law he did not know, but an alteration in the English law might possibly be attended with a like improvement here. In America the law was originally the same as our own, but more than twenty years ago a change commenced, an advantage being that one State could make an experiment, and that if it succeeded others could follow it. New York was nearly the last to adopt the alteration, which had given universal satisfaction. Mr. Atkinson denied that it had promoted division in families, except where the brutality or laziness of the husband had rendered such separation proper; and Mr. Dudley Field had observed no tendency to break up or sow dissensions in families. Mr. Rose, the Finance Minister of Canada, had given testimony to the same effect, and Mr. Welles, a leading Judge of Massachusetts, had stated that in the manu- 784 facturing towns many women had been saved from hopeless poverty and slavery. Mr. Hill, an eminent Boston lawyer, after speaking unfavourably of other legal and constitutional alterations made by the same Legislature, said it was a high tribute to the wisdom of the changes made in the laws in regard to married women that they were now so generally approved. He believed the same beneficial result would attend the passing of this Bill, and that, great as the change was, it might be made with safety.
§ MR. BERESFORD HOPEdivided the question into two imputed grievances—the one that of the needy and the other that of the easy class—and observed that he adopted this phraseology with a purpose. It was not a question between the so-called higher and. lower classes—it was not one of pedigree and social distinction; but dealt with the classes to whom their daily living was, and those to whom it was not, of easy acquisition. Every one admitted, to the best of his belief, and was ready to remedy, the grievance of the needy—namely, the misuse of the savings of the hardworking wife—which had formed the principal portion of the Recorder's eloquent and touching speech. The question was, however, whether this Bill would remedy this particular case which all were anxious to meet, or whether it would not—wantonly, as he should say, were the measure in any other hands—import a new element of disturbance into the relations of married life among the easy classes. The hon. Member for Reading (Mr. Shaw Lefevre), the hon. and learned Member for Dover (Mr. Jessel), and the right hon. Recorder of London had held up, as precedents to be followed, the examples of America and of other foreign nations. The hon. Member for Reading had asserted that the relations of married life in the United States were almost identical with those in England. He was not about to raise an alarm cry against Americanizing our institutions; but, without expressing any opinion as to which of the two systems was the better, he must say that the relations of married life in the two countries stood upon an entirely different basis; not only were they not identical, but they were essentially discrepant. What were the facts bearing upon this point? In England indissolubility was the general principle of married life, and 785 divorce was the exception, while in the United States there existed what might be termed free trade in divorce. At a synodical meeting of one of the principal American religious bodies—the Protestant Episcopal Church—a debate arose on the marriage law, the substance of which was admirably recapitulated in The Times, although he had himself read it in the original and full report. These meetings, he must observe, of the governing bodies of different denominations in the States had a value as exponents of general social opinion which similar assemblages in England did not possess, on account, both of the absence of any State establishment, and also of the difficulty which beset men of refinement in getting into the temporal legislatures, which did not meet them in such cases. From this it appeared that one gentleman present at the meeting stated that he blushed for the state of public manners in his country, the Law of Divorce being so uncertain that in one State a man might be a married man, in another a bachelor, and in a third a bigamist. Indiana, which was a very flourishing Western State, seemed to be the paradise of discontented spouses, and there divorce was a very simple and exceedingly cheap matter, managed by tribunals corresponding to our petty sessions and County Courts. In Connecticut, one of the most wealthy and best educated of those New England States to which his hon. Friend the Member for Heading specially referred, it was averred, and not contradicted, that about one marriage in ten culminated in a divorce. Under these circumstances, the hon. Member was not justified in asserting that the marriage relations in America were identical with those in this country, although, doubtless, there were millions of happy married people in the former as in the latter country who remained faithful to each other to their lives' end; but it was not for these, but for the unfortunate residuum of ill-assorted husbands and wifes, that they had to legislate. He trusted that he had shown that the whole legal and social relations of husband and wife in the United States were diametrically opposed to those which existed in this country, and therefore it was impossible to argue that because certain laws were suitable to American society their results would be equally successful here. The same observations would apply to 786 the precedent afforded by the practice in continental nations, which had been cited in favour of the Bill. He appealed to the experience of all who had become familiar with the social life of the easy classes in the foreign capitals to say if the cases of husbands and wives living in a condition of virtual separation, neither knowing much about nor caring much for each other, were not vastly more frequent in continental society than in our own? Granting, then, that married life in England was in a more pure and satisfactory condition than either in America or on the Continent, must there not be some reasons for this difference; and where was any reason more likely to be found than in the laws which governed the conjugal relation? To his mind the system, as he found it in England, presented itself as an admirable instance of practical national common sense. There was, on one side, the common law of the absolute right of the husband creating the rule, and, on the other, the liberal elasticity of exception which custom had devised. It was idle to argue that because these exceptions, as such, were so salutary therefore they ought to be raised into being the rule, and would as such continue equally beneficial; for by this process their subordination to other conditions on which their actual success depended would be destroyed, and evils would arise which found no place at present. It might be said that settlements were too expensive—that too many sheets of sheepskin were spent over them—well then abridge the forms, and so cheapen the procedure. If the principle of séparation den biens were to be made a rule of law instead of an exception, our whole social relations would be changed. Old-fashioned people like himself were not ashamed to declare that it was written in nature and in Scripture that the husband was and ought to be lord of his household, the regulator of its concerns, and the protector of its inmates, which, if this Bill passed, he would no longer be. He advised the House to leave the question of settlements to be dealt with as now by the friends of the intending husband and wife, and not to interfere with it by making its principle an universally applying law. The present system was one in which confidence and caution were fairly blended; it might be defined as general confidence, regulated according 787 to individual circumstances by sufficient caution, whereas the proposed change would bring into existence a system in which normal mistrust would alternate with spasmodic improvidence. A settlement was at present a regulated drama, in which the parents, the lawyer, and the young couple played the well-known parts. Under the new system it would be a chance-medley, and not unfrequently a hostile encounter. The hon. and learned Member for Dover had told them a good story, and told it very well, of an Irish Lord who had married a rich wife walking unconcernedly among his creditors dressed in his wife's coat. He wondered, however, that the hon. and learned Member had not found out that he was in truth furnishing a very telling argument against his own side. The point of his case was that the noble Lord had been enabled, by reason of the property belonging to his wife, to take off his hat to his creditors and leave them in the lurch. But this was precisely the state of things which the Bill proposed to make reciprocal and general. At present he could only point to one Peer having enjoyed the free use of his wife's coat. But if the law of separate properties were set up, so that the wife became a financial femme sole and the husband a legal bachelor, it would become the study of speculative couples mutually to adjust their purchases to the non-use which they made of those purchases, and then what would there be to restrain the constant spectacle of the husband walking about in the wife's coat and the wife in the husband's gown, neither of the articles of dress having been paid for? If the Bill were passed, the present system of retail credit would be revolutionized, and a house would be kept up by a limited company consisting of two partners, neither of whom could be fixed with liability for the debts of the establishment. Such an arrangement would result in either a total suspension of credit throughout the country or in enormous losses on the part of the honest and confiding tradesman, occasioned by organized swindling between unscrupulous married persons. He hoped, therefore, that the House would refuse to pass the Bill in its present shape. A measure calculated to protect the unfortunate wife from the profligate knave would receive his support; but he implored the House not to destroy that 788 marital confidence upon which the marriage laws of this country had been based from time immemorial.
§ MR. C. O. MORGANsaid, no one who had paid any attention to the subject before the House could come to any other conclusion than that the law of husband and wife was in an unsatisfactory state. If a wife had freehold property the right of the husband was of a very limited extent, and only in the case of there being children would he have even a life interest in it. But if the wife had land on a lease of 1,000 years, the husband might mortgage it, or sell it, or make a present of it to his own relations, or to his mistress. If the wife were possessed of personal property, for instance, of a sum of money in the funds, the right of the husband to it was absolute, after his death it went to his relations, as if it had not belonged to the wife at all. Again, supposing the wife was entitled to personal property in reversion, the right of the husband depended on the accident of whether he lived until the time that the reversion fell into possession. But side by side with this practice of Common Law there had grown up the Equity system, by which a woman was able to acquire all the rights that this Bill would give her. This was a confusion of rights that was not creditable to the code of a civilized country. If the law had worked pretty well for a number of years, to what was it owing that it worked well? Not to the satisfactory state of the law, but to the ingenuity of Judges and lawyers in evading the Common Law. What was the whole doctrine of separate use but an evasion of the Common Law? What was the whole system of settlements but a protest against the injustice of the Common Law? What could be a more monstrous state of things than that there should be two systems of courts, one sitting in Lincoln's Inn, the other in Westminster]; the Courts of Common Law ignoring the principles of the Court of Equity, and the Court of Equity engaged in restraining the Common Law. The best of all arguments in favour of the present system was this, that the Common Law was so desperately bad that in nine out of ten marriages of the wealthy class the lawyers were engaged to defeat its operation. It was for exceptional cases that legislation on this subject was required, because it was in 789 exceptional cases that the hardship occurred. The experience of his hon. and learned Friend (Mr. Jessel) must have made him acquainted with many cases where the operation of the Common Law had reduced the wife to beggary. His own experience was of a much more limited nature, but he could give a dozen instances, particularly among the middle classes, in which, simply from the want of some such protection as this Bill would afford, a husband had been able to dissipate his wife's property by extravagance, or something worse. One such case he would mention. He knew a lady who had the misfortune to become mistress of her own property at a very early age. She made what was called a love match—that was to say, she insisted upon marrying one of the greatest scoundrels in the country. She happened to be an illegitimate child, and tad no one to look after her interests, and she was allowed to marry without any settlement, so that her whole property passed under the control of her husband. It took that husband just three years to dissipate very nearly the whole of the property, and having accomplished that he absconded with the rest to America, and the unfortunate heiress died in a workhouse. It was true there was nothing in this law, if it were passed, to prevent the lady making a present of her property to her husband after marriage, still less to prevent foolish marriages, but there was a vast difference between allowing persons to injure themselves and allowing the law to injure them. The one they could not prevent—the other they could, and ought. People in the higher classes had their lawyers to look after their interests, but it was the poor who wanted this protection. The Bill would secure to the wife of the poor man the savings of her industry. He wanted to know why the savings of a woman should not be as sacred in the eyes of the law as the savings of her husband. She had probably struggled harder for them than the man. Having said thus much in favour of the Bill, he must be allowed to point out one or two clauses which might require alteration. There was the danger of running into an extreme. It did not follow that because the law, up to the present time, had been too severe, it should, all of a sudden, become too lenient. So long as a woman 790 was stripped of all rights, it was only common justice to exempt her from all liabilities; but, if they gave her these rights, they ought also to impose, a little more definitely than was done by this Bill, certain liabilities which should be inseparable from rights. It might be just to provide that as to certain debts the estate of both husband and wife should be jointly liable, and perhaps in some cases that the estate of the wife should alone be liable. Again, vested interests should be carefully protected, as otherwies those who had advanced money to the husband, or had purchased from him the property of the wife, might lose their security. The latter point was especially of importance, because as he understood the matter, the Bill, in its present shape, would invalidate one-half if the securities held by insurance companies. These, however, were only questions of detail, and did not affect the principle of the measure. The present law had its origin in semi-barbarous and feudal times; it did not obtain in Rome, and it had been condemned by the experience of the United States of America, by the opinion of some of the most eminent jurists here, and by the common sense of the country. He was in favour of the proposed change in the law, because he believed the law required amendment; because he believed it had its origin in semi-barbarous or feudal times; and because he believed that such a law prevailed in no other country of Europe.
MR. HENLEYsaid, his right hon. and learned Friend (Mr. Russell Gurney) in introducing this Bill had pointed out that the interests of the married women in the higher and richer classes of society were already sufficiently secured. He (Mr. Henley), however, differed from the hon. and learned Member who had just spoken when he asserted that the abject of marriage settlements was to defeat the operation of the Common Law, because the object of such deeds was to prevent the property from being squandered by either the husband or the wife to the prejudice of the rights of the children. The right hon. and learned Gentleman and the other Members who had followed him had attached great weight to the practice that prevailed with respect to this subject in foreign States, but not a word had been said by the right hon. and learned Gentleman 791 upon the social condition of any one of those countries as compared with this country. The hon. and learned Member for Dover (Mr. Jessel) had carried the House back to the days of Rome, and after giving them the name that attached to the condition of a married woman in those times he went on to assert that the conditions of married life were precisely the same now; but he was afraid that if the hon. and learned Gentleman were to apply that name to a married woman in certain societies he would be requested to "prove his words." The right hon. and learned Gentleman said that the object of the present Bill was to protect the earnings of married women who worked for wages; but it was a great question whether it was wise, for the sake of a limited portion of the community, to bring in a general law of this kind that might disturb the whole state of society. He had been surprised at the way in which this question was handled by his right hon. and learned Friend and by the hon. and learned Member for Dover. Unfortunately such was the condition of human nature that they could easily get sensational cases on either side. In arguing this subject it was impossible to escape from the question of mutuality. The right hon. and learned Member dealt very tenderly with the subject of how far the husband was to be released from the wife's debts—he hardly seemed to like to handle it all. The hon. and learned Member for Reading passed over the question with the remark that imprisonment for debt would soon be abolished. The hon. and learned Gentleman seemed to forget that the humbler classes were not exempted from imprisonment for debt in the Bill which tad been recently introduced to the House. County Court imprisonment still hung over them, and anyone who had any experience of working men knew that many husbands would be in gaol for debts which they had no means of controlling or stopping. The right hon. and learned Gentleman also touched very lightly upon the liability of the husband to maintain the children, observing that he was only bound to keep them from starving. But it was a very essential part of the matter whether the maintenance of the children was to come out of the husband's earnings solely. If the husband's property and person were to 792 be liable for the wife's debts, he did not see how the wife's property could be exempted from liability for the husband's debts. No one had ventured to get up and say that the relations of married life in other countries where other systems prevailed were better than in this. He for one, believing that a better state of relations did not exist between married persons in those other countries, was not prepared to vote for affirming the principle of the Bill. It appeared to him that this was a very large measure to remedy a limited evil. No one was more ready to admit that there was an evil. The House could not deny it, for they had already recognized its existence by giving, in certain cases, protection to the earnings of married women. It might be that legislation ought to go further in that direction. He did not say that it ought not, and he believed everyone would be glad to see the earnings and property of respectable women protected against the rapacity of unworthy and dissolute husbands; but when it was proposed to meet the case by such a Bill as this, he thought the remedy went beyond the disease; and therefore if a vote were taken, he should not be able to support the Motion of his right hon. and learned Friend.
§ SIR FRANCIS GOLDSMIDsaid, the result of the discussion so far had been to narrow the differences which at first appeared to exist between the promoters and the opponents of the Bill. It was admitted on all hands that something must be done to protect the earnings of married women, while the objection raised against the Bill was, that it did not adopt the right mode of dealing with the question. If the principle of the Bill was wrong, what had been offered in its place? The only suggestion he had heard of a different principle was that proposed by the hon. and learned Member for Coventry (Mr. Staveley Hill), who recommended an extension of that clause in the Divorce Act which now enabled a wife, after she had separated from her husband, to have protection for her property. The hon. and learned Member suggested that that clause should be extended, so as to apply to women who had not separated from their husbands. But in that case a woman would have no property with which to deal. It was necessary to contemplate the protection of the wife's 793 earnings before she could have the means of acquiring property of her own. To say that a wife's earnings should only be protected in case she separated from her husband would be to make the remedy miserably insufficient, and any remedy which could be supplied under the provisions of the Divorce Act must necessarily be very tardy. The right hon. Member for Oxfordshire (Mr. Henley), objected that there was no sufficient mutuality or equality established in this Bill between wife and husband in regard to liability. But there was a clause in the Bill which expressly exempted husbands from liability for the debts contracted by the wife antecedently to the marriage; while, as to debts contracted after marriage, it was already established by law that a husband was only liable for those of his wife's debts which she contracted while acting as his agent. In the same way the wife would, under the proposed law, be liable for debts contracted by her husband as her agent, and therefore there would be mutuality. It was, moreover, laid down in a case by Lord Campbell that a married woman having separate property, and not paying off her own debts with it, would be liable to imprisonment. It had been argued, in opposition to the Bill, that in those countries where a different law from ours prevailed on the subject, the relations of married life were not so satisfactory as they were with us, and marriages were more frequently dissolved. He could not speak as to Connecticut, which had' been specially mentioned; but he believed that in most of the States in America marriage was not more easily dissoluble than in this country. They need not, however, go to other countries. No one would allege that in the higher classes of this country, among whom marriage settlements were usual, the marriage relations were less satisfactory than in other classes. Therefore if they did not like to trust to the experience of foreign countries, let them trust to the experience of our own. He did not think that the arguments of his right hon. and learned Friend the Recorder of London had been met by the right hon. Gentleman who had just sat down, or by any of the other opponents of the measure. The Bill might need amendments. His right hon. and learned Friend had admitted that it would re- 794 quire consideration in Committee; but the arguments which had been used against the Motion for the second reading did not affect the principle of the Bill.
THE SOLICITOR GENERALsaid, he thought it might be satisfactory to the House to know the views entertained with reference to this Bill by his hon. and learned Friend the Attorney General and himself. First, he felt that the House owed a debt of great gratitude to his right hon. and learned Friend the Recorder of London (Mr. Russell Gurney) for the manner in which he had brought the question forward. He could not agree with the right hon. Member for Oxfordshire (Mr. Henley) that his right hon. and learned Friend's speech was in any way made up of sensational stories or of arguments drawn from sensational sources. He (the Solicitor General) would recommend the House to agree to the second reading of the Bill, and he was not induced to do so by any sensational appeals, or in consequence of the effect produced on his mind by any eloquent and touching story, such as in any country and under any system of laws might be produced for the purpose of affecting the feelings of those who heard it. He ventured to recommend the acceptance of the Bill on this ground—that in truth the state of the law on the matter, apart from the way in which it worked in particular instances was not such as could be satisfactorily defended. There was no parallel for it in the world, and, so far as he had heard, no one had ventured to defend it. They had heard various statements of the effects of the present law, some of which had been said to be sensational and some exceptional; but he would read a statement of what that law was by a great man lately taken from among us, who did not indulge in sensational arguments, and whose conclusions, whatever they might be, were always stated with singular strength and moderation of language. He regretted to say that some persons had not, on all occasions, appreciated the great and genial qualities of that distinguished man's head and heart. He referred to Lord Lyndhurst, and he would rather cite him than some other authorities because his character was a national possession. In a speech delivered by him, in the House of Lords, in 1856, Lord Lyndhurst thus described the law as it affected married women— 795
If a woman is separated from her husband by a sentence of the Ecclesiastical Court, and a legacy is left to her, or if she succeeds to personal property in consequence of intestacy, or in any other way, such property belongs to her husband. He can receive it and generally does so, and he may appropriate it altogether independently of his wife. … Again, if the wife succeeds to real property by devise or by inheritance, to whom does that property belong? The husband occupies it during the lifetime of his wife and may take the income from it, notwithstanding a separation in consequence of his misconduct. But much worse than this, if the wife tries to eke out a scanty subsistence for herself and her children by the exercise of any art in which she is proficient, or by instruction, the husband can seize upon the proceeds of her industry and bestow them upon his mistress. … Let us look at the other side, and mark the position in which every wife is placed. With the exception of a scanty allowance in the shape of alimony, whatever personal property belongs to the husband, he may appropriate as he thinks proper; he may assign it, or bequeath it by will, and leave his wife and children destitute."—[3 Hansard, cxlii. 409–10.]Cases of this kind had come under his notice times out of number. A man married a woman with some small means. He remains with her a short time, dissipates her money, and then abandons her. She struggles on by herself, until by some good fortune she receives a legacy, or by her industry accumulates a little money, when the man re-appears, seizes the property, claims it as his own, and then acts the old part over again until, the money being spent, he finally abandons her. Again, Lord Lyndhurst used these words—There is no reciprocity or equality in such a case… … Nine-tenths of the marriages in this country take place without any settlements, and are governed, as to rights of property, by the Common Law… … A wife is separated from her husband by a decree of the Ecclesiastical Court, the reason for that decree being the husband's misconduct—his cruelty, it may be, or his adultery. From that moment the wife is almost in a state of outlawry. She may not enter into a contract, or if she do, she has no means of enforcing it. The law, so far from protecting, oppresses her. She is homeless, helpless, hopeless, and almost wholly destitute of civil rights. She is liable to all manner of injustice, whether by plot or by violence. She may be wronged in all possible ways, and her character may be mercilessly defamed; yet she has no redress. She is at the mercy of her enemies. Is that fair? Is that honest? Can it be vindicated upon any principle of justice, of mercy, or of common humanity?"—[1bid.]Every word of that he believed to be a perfectly correct exposition of the law, and therefore he ventured to say that, quite irrespectively of cases of individual 796 hardship, no one looking at the law in a spirit of candour would be prepared to defend it. It was said that the upper and richer classes were sufficiently protected by marriage settlements, and, to a certain extent, that was true. He also agreed in the remark that marriage settlements were not made with the distinct and avowed object of evading the law; but obviously the law was not satisfactory in the opinion of those who made marriage settlements, or they would not enter into terms that were in contravention of it. The fact that those parties made the bargains which were the subject of marriage settlements was a strong argument to show that they were not content with the bargains that the law made for them; and, therefore, it was strong as showing that the state of the law was not felt to be satisfactory. Here he must observe that he thought our Common Law had been somewhat hardly dealt with in this discussion. It was said that the Common Law did not operate rightly in respect of personal property; but it should be remembered, that when the Common Law took its form personal property was so insignificant as to be almost nothing at all. With respect to real property, the Common Law did protect the wife a great deal more than with regard to personal property, and would protect her still further but for distinctions between leasehold interests and interests in fee, which it required a legal eye to see—he would not say which it required a legal understanding to comprehend—because he was not prepared to hold that they could be comprehended by any understanding. Take the case of a woman with £1,000 a year in fee. She married without a marriage settlement, and yet she had protection by Common Law for her fee. Take the ease of another woman who had £1,000 a year on a leasehold interest of 999 years, and on account of which she paid 40s. a year to some nobleman. For all conveyancing purposes, the latter woman had as good a title as the former. Indeed, in some respects her title was better than the fee; but for protection it was very different, because she had none at all. This of itself was sufficient to show the Common Law, which was framed under a different state of circumstances, did not provide a remedy for the evils complained of. The action 797 of rich persons—persons who could make bargains for themselves—and the action of the Court of Chancery, which made bargains for those who were under its control, quite different from the bargains which the law of the country would make, showed that the present state of the law was not considered to be satisfactory. The House had the evidence of the Court of Chancery and the evidence of the higher and more educated classes of the country against that state of the law. What was there on the other side? The imagination of the right hon. Gentleman the Member for Oxfordshire—the right hon. Gentleman would excuse him for saying it—that a change such as it was proposed to make by this Bill would have an injurious effect on the relations between husband and wife. Necessarily he had a great respect for any argument coming from the right hon. Gentleman; but in this case he must say that for his objections there was no evidence nor argument whatever. He would not follow his hon. and learned Friend the Member for Coventry into his learned disquisition on what his hon. Friend called the laws of the Ten Tables. When he was at school they were Twelve Tables; but perhaps his hon. and learned Friend was thinking of the Ten Commandments, in the tenth of which no doubt a wife was treated as an article of property, and formed part of a list of things with a man's house at one end and his ass at the other. But he must say that, in his opinion, if a wrong was admitted, it was the duty of the House to at once proceed and apply a remedy co-extensive with that wrong. He declined to treat this as "a poor woman's question." It was "a woman's question." He could not see why a woman's property should not be protected just as much as a man's was. He should therefore support the Motion for the second reading of the Bill, which he believed was substantially the Bill brought in by his hon. and. learned Friend the Member for Beading (Mr. Shaw Lefevre) last year. No doubt it would require amendment in Committee; but he understood his right hon. and learned Friend the Recorder of London to say that he would consent to have it referred to a Select Committee. In all these matters there were advantages and disadvantages. There was no Bill, however good, to which there was 798 not some objection; but one ought to give his vote on the side which had the balance of advantages. In this case he thought the balance was on the side of the Bill, and therefore he should support the second reading.
§ MR. BARROWsaid, he wished to see the poor woman protected, but he was anxious that the poor man should be protected also. There was a want of mutuality in the Bill. If it passed in its present shape, the husband might be imprisoned for his wife's debts, while the wife might spend her husband's earnings in opium or anything else, without incurring any legal consequences. It was said that imprisonment for debt was about to be abolished. But a poor man might still be imprisoned for not paying his wife's debts, because his not doing so would be treated as a criminal offence. He wished to call attention to another point in connection with this Bill. If a widow who had several children married again the second husband was bound to maintain those children. But if this Bill became law, and if a separation took place between the parties, the husband would remain liable for the maintenance of his wife's children by another marriage; while the wife would be able to dissipate any property she might possess in any way she thought proper. It was contended that married women had no protection for their earnings; but the fact was that there was now in existence a provision under which a woman could apply to a magistrate for the protection of her earnings.
§ Amendment, by leave, withdrawn.
§ Main Question put, and agreed to.
§ Bill read a second time, and committed to a Select Committee.
§ And, on April 22, Committee nominated as follows:—Mr. CHANCELLOR of the EXCHEQUER, Mr. CROSS, Mr. SOLICITOR GENERAL, Mr. AMPH-LETT, Mr. HEADLAM, Mr. SCOURFIELD, Mr. LEFEVRE, Mr. LOPES, Sir JOHN SIMEON, Mr. BEN-TINCK, Mr. JESSEL, Mr. JACOB BRIGHT, Mr. PEMBERTON, Mr. DOWSE, and Mr. RUSSELL GURNEY:—Five to be the quorum.