HC Deb 18 May 1870 vol 201 cc878-92

Order for Second Reading read.

MR. RUSSELL GURNEY

, in rising to move that the Bill be now read a second time, said: I feel fully sensible of the responsibility which rests upon anyone who proposes a change in a system of law affecting the relation of husband and wife, which has long existed in this country, which has tended more or less to form our national habits, and upon which, in the opinion of some, the peace and purity of domestic life in no small degree depends; and it is only because I am convinced that there is no ground for the fears which are entertained as to the results of the proposed change, and that the law, as it at present exists, is no less mischievous in practice than it is unjust in principle, that I have been induced again to bring in the Bill now before the House. It is certainly not from any love of change, nor is it on any merely theoretical grounds that I am anxious to proceed; but it is because I am satisfied that the present state of the law is the cause of daily misery and almost daily crime that I propose its alteration. Indeed, for the law itself, in its present state, I scarcely expect to find a defender. The time has passed when we shall hear of its perfection—of its perfect adaptation to the relative position of husband and wife, and of the proof which it affords—as I think Blackstone said it afforded—of the exceeding tenderness which it manifested on the part of our legislators for the wants and feelings of women. However long that law may have prevailed in this country, however high its sanctions, if I have been able to learn anything of the state of public feeling, if I can learn anything from the Bill brought in by those who were last year my strongest opponents, it is now all but universally condemned. By that law half the married people of this country are pronounced unfit to exercise any right of property whatever. With respect to personalty, by the act of marriage a woman's property is at once forfeited. It may be, and doubtless is, an honourable estate into which she enters; but as to such property, it produces much the same effect as a conviction for felony. She forfeits what she previously possessed—she forfeits any which might come to her by gift or bequest—any which she might earn by her own industry or talent—all passes from her, and becomes at once and absolutely the property of her husband; and this law, as it now operates, has been the result of accident rather than design. It has arisen from a gradual change of circumstances, and has not been arrived at on any principle. The wife's position formerly was far more favourable, so far as it was regulated by the common law. The property of the country was then almost wholly what is known to lawyers as real property; and, with respect to such property, although the husband had the use of it during their joint lives, he could not part with it—the property remained with the widow, and she had also her right of dower, which gave her for her life one-third of all that she had at any time during marriage possessed. But by recent legislation, with the view of simplifying the transfer of land, she has lost this advantage, and has gained nothing to counterbalance it. This is the law which our Courts of Common Law are bound to administer, and it is so manifestly unjust that it could not have lasted to the present day if it had not been for the relief afforded by our Courts of Equity; for it is not the least remarkable thing connected with our law of husband and wife, that we have two perfectly different systems, founded upon two perfectly opposite principles, administered by Courts of co-ordinate jurisdiction. While our Courts of Common Law ignore any right of property in the wife, by our Courts of Equity it is recognized and encouraged. The House knows well that in practice the wife's property is secured to her by means of marriage settlements, the provisions of which are enforced in a Court of Equity; and there is probably not a Member of this House who, upon the marriage of a daughter, does not pronounce his condemnation of the principle of our common law by securing to her, by means of a settlement, the enjoyment of her property. Now, with these settlements I do not propose to interfere—they will probably continue to be made hereafter much the same as they have been in times past; and, consequently, the Bill, if it should become law, will make very little difference in the position of the richer class. But, unfortunately, these marriage settlements are for the benefit of the rich only. In their case the common law is, in fact, abrogated; but it is in their case only. Settlements are not suited to those who possess small fortunes. Who would think of tying up in settlement a £50 or £100 legacy? Indeed, the Courts of Equity refuse to interfere in cases where a legacy to a married woman does not exceed the sum of £200. But, unsuitable as they are to cases of small fortunes, they are wholly inapplicable to the cases of those earning wages. Does the House know how many there are of these cases? It appears, from the Census, that there are no less than 800,000. Are these to be without relief? Remember, the law depriving a married woman of a sepa- rate estate is condemned and virtually abrogated in the case of the rich. Is it possible for us to continue it in full force in the case of the poor? The House can scarcely be aware how hardly this law operates, and how extensive is the evil. I ventured, when I addressed the House last year, to refer to cases which had occurred in the Court over which I have the honour to preside. I was told by a right hon. Friend near me that these were sensational eases, and that the House ought not to be asked to legislate for sensational cases. Permit me to say that, if they were sensational, they were not exceptional cases. There is not a clergyman labouring among the poor, there is not a district visitor who could not multiply them a hundred-fold. The evidence taken before the Committee upon this subject, two years ago, was conclusive upon this point. We examined witnesses from all classes—clergymen, district visitors, manufacturers, police magistrates—and they all agreed as to the extent and the greatness of the evil. I will not, at this time, weary the House with many extracts; but I cannot help referring to the evidence given by the hon. Member for Sheffield. No one was better qualified to give information on the subject. He employed upwards of 2,000 women, of whom 800 were married, and when asked to give the Committee the result of his experience, he said— I will give the Committee two instances which I know at this moment. One is that of a woman who married a widower having one child; she took that child, and has been very kind to it, and brought it up. She had a good home of her own when she married this man, and yet this man has persecuted her and neglected her, and his drunken conduct has been so bad that she was obliged to take her furniture and go away with his child. That man has taken her articles of furniture out of her house while she has been at work, and would repeatedly have sold the whole but for the neighbours interposing some obstacles to prevent him from making off with all her property. I know another case of an excellent woman, whose husband has really driven her away; acting on the principle of killing no murder, he has just stopped short of that in his cruel and abominable treatment of her. She went away from him, and got a little home together of her own. Five years ago she had a legacy left her; I think it was about £50, and the trustees will not pay it to her without her husband's signature, and she dare not tell him, because he would go and draw it, and spend the whole of it. It would be a great comfort to that woman if she could have that money; it would help to set her up in a little way of business, and do her a deal of good. I have a number of cases of this kind come before me of women who marry early, and when they marry they can earn often as much as the man; the men get sometimes into dissipated habits, and the women have to keep the family, and on Saturday, when they take their earnings home, the men will take the earnings which ought to keep the family away from them, and spend them in drink. I have known many cases of that kind. It is very lamentable to see to what an extent the earnings of women are often dissipated by bad husbands, and they have no protection. I have known cases where the husbands have drawn the wife's savings out of the savings bank, and spent them. Of course they have been deposited in the husband's name. When asked what the feeling of the women on this subject was, he added— I have talked to poor women in this position, and the mere mention of this subject always brings tears to their eyes. They say—'Oh! if we had but some means of taking care of our earnings, we would be exceedingly grateful for it.' But I am glad to say that the desire for an alteration in the law is not confined to the women. The hon. Member stated that he was sure that the thinking, sensible working men would be in favour of it. But we have even better evidence on this point than the opinion of the hon. Member. There is in Rochdale a co-operative society with 7,000 members, including many married women who hold shares in their own name. In some cases the husbands have claimed these shares, to which, of course, they have a legal right; but the Committee, consisting as it does entirely of working men, have invariably resisted the claim, and such is the state of public feeling that in no one case has the husband's right been enforced. I have heard of another cooperative society where a similar course has been pursued. In legislating, therefore, in the way I propose, we shall not be running before public feeling, but shall be rendering that legal which in these cases is done in defiance of the law. The effect of the present state of the law seems to be equally bad on the husband and the wife. It makes—as one of the witnesses said—"the men idle and the women reckless." I was struck with the evidence of a clergyman who was examined, who spoke of the effect produced in a district where the hard earnings of a wife had been carried off by her husband. "It makes," he said, "the poor women gather together in the street, saying—'What is the use of a' body striving.'" The fact is, as another witness said, it produces a hopelessness that cripples exertion. We come, then, to the question—What is the fitting remedy for this acknowledged evil? An extension of the principle of marriage settlements has been suggested; but that, as I have shown, will not afford the necessary relief to the married women of the poorer classes. Again, it is said that protection orders might, upon application, be granted by magistrates; but that would be the surest mode of producing the discord which our opponents profess to dread. The application to a magistrate would be viewed as a declaration of war, and all the witnesses assured us that as a remedy it would be futile, as it would never be applied for till the case was desperate and the mischief done. Those who suggest this as an appropriate remedy, little know how faithfully the poor woman clings to the man she has chosen, and how much she will bear before she makes known her sufferings. There is one man, indeed, who knows it well, and that is he who ventures to interfere in a matrimonial quarrel, and to take the part of the injured wife. I propose to strike at once at the root of the evil, and that the act of marriage shall no longer operate as a forfeiture of the property of the wife, and that that shall be done directly by the law which is now done indirectly by the Court of Equity. Lord Cottenham, in one of his judgments, has described the course pursued by the Courts of Equity— When," he said, "the Court of Chancery, looking to the interests of society, first established the separate estate of a married woman, it violated the laws of property between husband and wife; but it was thought beneficial, and it prevailed. What are the objections to this proposal? We are told that it will promote divisions in families, and that the husband will be deposed from his headship. I say now, as I said before, that as a married man I am ashamed to hear it argued that family union and the lawful authority of the husband depends upon his having the power to deprive the wife of her property. But, surely, experience here may be our guide. Lord Cottenham tells us that it has been found beneficial to violate the laws of property in order to establish the separate estate of the wife, and that therefore it has prevailed; and I appeal to hon. Members whether, in their experience, they have found in the case of the rich, where the wife's property is secured to her and forms her separate estate, those evils which are now apprehended in the case of the poor? But it is objected that the Bill will introduce all sorts of anomalies, and that under it there will be great difficulty in enforcing the rights of creditors, as they will not know whether to sue the husband or wife. There is, indeed, a clause in this Bill which will obviate that difficulty in no small degree; but the same difficulty exists under the present law. Complaints have reached me, not a few, of tradesmen who have given credit to a large establishment, and have found that the husband has no property in it, and that they have no remedy against the wife. One case was mentioned last Session, by my hon. and learned Friend the Member for Dover, of a noble Lord who kept such an establishment, and who, when a creditor seized his portmanteau, was found to be not only penniless, but breechless and shirtless—as every coat and every shirt was the property of his wife's trustees. I come now, I believe, to the last objection, that there is a want of reciprocity, as the wife will retain her own property, and that the husband will still remain liable to the payment of the debts. This matter was much considered by the Committee to which the Bill was referred, and they reported as follows:— It does not appear to be necessary to make any alteration in the liability of a husband to maintain his wife, in consequence of such a change in the law with regard to the property of married women. A married woman living apart from her husband can only bind him for what is necessary, and her possession of property of her own pro tanto negatives the authority arising from necessity. A married woman living with her husband has an authority which, in spite of some fluctuation and uncertainty of judicial decisions, seems to be regulated by the general principles of the law of agency. Agency is a mixed question of law and fact, and the Courts will give due weight to such a fact as the possession of property by a married woman without any express statutable direction. The law upon this point has, I think, been much misunderstood. In one of the most recent cases it was held that where a wife has been supplied by a tradesman with articles suitable to her station in life; the husband was not liable, because he had forbidden her, although unknown to the tradesman, to incur the debt; and, invariably in these cases, one question put to the jury is, whether the wife has means of her own? If so, she must pay for anything for her exclusive use. With respect to the support of the children, the Bill imposes upon the wife the same liability which by law is imposed upon the husband, and that is what may be called the Poor Law liability. We trust—and, generally speaking, we are right in trusting—to the natural affection of the father, and no one will doubt that we may as safely trust to a mother's love. We have, however, something better than theory or conjecture to guide us as to the probable effect of the change which I propose. There is, I believe, no civilized country which has adopted the law which has prevailed here. It did, indeed, exist for a time in the United States of America as a part of the English law which the founders of those States carried with them across the Atlantic. But in State after State has it been repealed, and in none have the ill-consequences followed which are apprehended by our opponents. The change was strongly opposed there as it is here—the same arguments were used, the same objections urged, but all are now agreed that the change has been beneficial. We had the strongest testimony upon this point from American witnesses. Mr. Dudley Field, of New York, whose name is so well known in this country, told us that— Scarcely any one of the great reforms which have been effected in this State has given more entire satisfaction than this. Mr. Fisher, from Vermont, said— I do not believe that I have ever seen an individual in the State who wanted to go back to the old law. Mr. Washbourne, a Professor of Law, at Harvard University, said— I regarded the first inroad upon the common law with apprehension that it would cause angry and unkind feeling in families. I am so far convinced of the contrary, that I would not be one to restore that common law if I could. This opinion is not confined to lawyers. Mr. Atkinson, a manufacturer at Lowell, said— The objection of the opponents of a separate estate for women, on the ground that it will promote division in families, simply suggests a smile. No such result has followed from our legislation, except where the brutality or laziness of the man has rendered such separation proper and right. The law has been changed, too, among our own fellow-countrymen in Canada; and Mr. Rose, the Canadian Minister, states— I have not heard any desire on the part of either men or women to return to the old law. I am supported, too, in the change I propose by high authority on this side of the Atlantic. Some years ago a Commission was appointed to prepare a Code for India. I find in their Report the following recommendation:— It has been necessary for us in one or two cases to introduce provisions affecting rights as between living persons. We propose that a man shall not, through the mere operation of law, acquire by marriage any interest in his wife's property during her life; but that she shall continue to possess the same rights with reference to it as if she were unmarried, and shall have full power to dispose of it by will. This recommendation was signed by the present Lord Romilly, Sir William Erle, Sir Edward Ryan, the present Chancellor of the Exchequer, and Mr. Justice Willes, and now forms part of the Code of India. These are the grounds upon which I ask the House to read this Bill a second time. The question which the House will really have to decide to-day is, what is the best mode of remedying the evils which I expect will be admitted to exist. The Bill which I introduce has, at any rate, been well considered. It has passed through two Select Committees of the House. By one its principle was affirmed; by the other its details, after full and very careful consideration, were determined. On the one of those Committees we had the assistance of the Law Officer of the late Government. On the second, that of the present Solicitor General. I am not so bigoted to the Bill which I have assisted in framing that I would not gladly adopt any other by which unanimity could be obtained, and by which the evils of which I complain would be removed. But I implore the House not to adopt a half measure. If they should be induced to adopt a plan of which we shall hear more presently, they will indeed afford relief to a few of the richer classes, who, through negligence, indifference, or ignorance, have not had their property protected by marriage settlements; but will do little or nothing for the working classes who are suffering from the present state of the law. They will protect the rich woman's Consols, but they will not protect the poor woman's mangle; and the relief, slight and inadequate as it will be, will be obtained at much greater risk of producing domestic discord, than would be incurred by adopting my fuller measure. But if the House will strike at once at the root of the evil, and place I the relation of husband and wife upon a just and equitable basis, it will soon be here, as it has been found on the other side of the Atlantic, that the idea that family division would be the result will suggest only a smile. They will receive the blessing of multitudes of toiling women who now, when they see the hard earnings of a fellow-workwoman swept away, gather together in the streets, saying—"What is the use of a'body striving." And they will have the higher reward of witnessing the great improvement in the working classes, which will be the natural and necessary consequence of increased self-respect, arising from increased sense of responsibility among the women, and increased respect for womanhood among the men. One word more, Sir, and I have done. I have reason to know that the women of this country feel deeply on this question; the poor women, especially, feel that they are suffering a grievous wrong. I have to appeal on their behalf to a Legislature elected exclusively by men. I trust that it will appear that the Members of a Legislature, so elected, are as keen to discern the evil, and as earnest in applying a remedy, as if the appeal were made on behalf of those whose voices could be heard at elections, and whose votes could be recorded at the hustings.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Russell Gurney.)

MR. RAIKES

said, that having, in the exercise of his duty last year, moved the rejection of this Bill upon its third reading, he felt it to be due to the House that he should explain the reason why he did not adopt that course on the present occasion. He fully agreed with the right hon. and learned Member (Mr. Russell Gurney) as to the miserable and scandalous state of the law on this question, and as to the absolute necessity for a great and speedy change. At the same time, he did not think the House should commit itself to the details of this measure, and he was afraid that, in endeavouring to relieve us from existing evils, the right hon. Gentleman's Bill would involve us in others far worse. He (Mr. Raikes) had himself introduced an alternative scheme, and he trusted that the House would read both Bills a second time on that day, in order that both might be considered together by a Select Committee. He must re- mind the House that the principle of the Bill of his right hon. and learned Friend had received affirmation as regarded some of its most important clauses, when it was considered by a Select Committee, only by the casting vote of his right hon. and learned Friend. The Government had promised to deal with the question of law reform; the fusion of law and equity must necessarily affect the rights of married women; and that alone was a sufficient reason for withholding their full assent from the measure under discussion. The Bill proceeded practically upon an assumption that the first act of every husband was feloniously to appropriate to himself his wife's property. He did not doubt the singleness of the intentions of his right hon. and learned Friend—they were above suspicion—but the object of those who supported him was two-fold, including the recognition of the novel principle of civil equality between the sexes. Imaginary rights were mingled with the real wrongs of women. With regard to the operation of the Bill if it passed into law, he believed an inducement would be offered to a husband to exercise duress, in order to obtain possession of the property which the Bill gave to the wife alone. An hon. and learned Member, who was not now present, had acquired a kind of oracular position in the House on these subjects. He alluded to the hon. and learned Member for Richmond (Sir Roundell Palmer), who, at a recent meeting of the Juridical Society, had expressed an opinion adverse to altering the present position of married women. In France, before the Revolution, there existed two systems, under the name of the Dotal regime, in the first of which a portion of the wife's property was assigned to the husband, while over the remaining portion, called the paraphernalia, she had the entire control and management; but, under the second system, called the community system, the husband had control over the wife's property until the community was dissolved by death or separation, and the wife could not alienate any portion of her real property without the husband's consent. There was another form of the Dotal régime in Scotland. Was it not, then, rather rash that we should take so summary a step as that proposed to be taken by this Bill? In America husbands and wives lived in hotels, without the comfort of the homes in which the English so much delighted, and their case did not apply to us. He would protect the wife, not merely against the rapacity of the husband, but against her too great willingness to give up her property to her husband, and he would do this by the appointment of an official guardian over property which ought to belong to herself, and to go to her children. He would propose that the husband should, in the first instance, be the trustee of any property belonging to his wife, but that the wife should have power to oust him from his trusteeship by application to a County Court Judge. He deprecated the passing of this measure, on the ground that it would disturb the peace of every family, and destroy for ever that identity of interests at present existing between husband and wife, which had hitherto been regarded as the basis of the Christian family, and the peculiar characteristic of English society. The House was asked to create a factitious, an artificial, and an unnatural equality between men and women. But he also objected to the Bill, on the ground that it created an inequality between husband and wife; it retained to the wife the sole use of her property, and yet still obliged the husband to support the family. He asked the House to pause, and not to legislate on the eloquence of his right hon. and learned Friend, but to pass the best of the two measures. He asked it, further, to appoint a Select Committee on the Bill, and also on his (Mr. Raikes') Bill, for the purpose of obtaining a dispassionate settlement of this important question, lest when they endeavoured to give a great boon to society they should pass a Bill which would be unjust and humiliating to Englishmen, and would be still more unjust and, in its ultimate results, humiliating to English women.

MR. JESSEL

said, the hon. Gentleman who had just sat down had obviated the necessity of discussing the principle of the measure by introducing one himself for the protection of wives from brutal and fraudulent husbands. The question, then, was the best mode of accomplishing a common object, and he thought that those who had read the two Bills before the House would be of opinion that the Bill of the Recorder of London (Mr. Russell Gurney) was not only the one best calculated to accom- plish the object but was the only one that the House could adopt for accomplishing it. They had heard from the hon. Member for Chester (Mr. Raikes) a great many objections against the Bill. In the first place, he had told the House that though the Bill had been before the Select Committee, the most important clause in it had been only carried by the casting vote of the Chairman. Now, he (Mr. Jessel) had had the honour and the pleasure of sitting on that Committee, and he was totally unaware of that fact. Then it was suggested that the Government were about to introduce a great measure of law reform, which would include the fusion of law and equity; but he saw no reason for waiting for this large measure, when there was already a Bill before the House for accomplishing a portion, at all events, of its purpose. Another objection was that the Bill assumed that the husband was a villain. Now, what was desired was to deter from crimes by creating a fear of punishment. Because they passed laws against theft they did not stigmatize all citizens as thieves; nor did they, by passing laws against bad husbands, stigmatize all the married men in the country as villains. The hon. Gentleman said that some husbands did seek to deprive women of their property. Well, if so, they were villains. The Bill did not interfere with the Courts of Equity, which treated women as the weaker vessels, and accordingly protected their weakness. They admitted that the woman was entitled to protection, and they wished to surround her with a means of escaping from the coaxing or bullying of the husband who wanted to get hold of her property. The Bill, in fact, was a poor woman's Bill. It was intended to apply to the cases of women who were left unprotected by settlement, and to them it would afford protection in the only way in which it could be given to them—by making them the legal owners of their own property. His objection to the measure of the hon. Member for Chester was, that its first clause transferred to a trustee all the property of a married woman, except such parts as were transferable by mere delivery. The property of poor women consisted generally of a few clothes, a little furniture, and, perhaps, a small sum of money; and this, the property most urgently needing protection, would be excepted from the operation of the hon. Member's measure. He asked the House to read a second time the Bill of the right hon. and learned Member for Southampton, and not consent to its being sent to a Select Committee.

MR. CHARLEY

said, the principle of the Bill of the right hon. and learned Member for Southampton (Mr. Russell Gurney) was, that the doctrine that the property of the wife vested in the husband should be reversed. The principle of the other Bill was, that the existing system should be retained, but that the husband should be made a trustee for the wife, who should, however, be at liberty to ask for the substitution of a trustee in whom she might place more confidence. The right hon. Member for Southampton did not protect married women—a married woman had to deal with her husband as a feme sole; and there was nothing to prevent the husband from worrying or bullying her out of her property. He thought the Bill of the hon. Member for Chester (Mr. Raikes) was preferable, because it extended the principle acted upon by the Courts of Equity. He was in favour of giving to widows and spinsters the rights enjoyed by men; but he was not in favour of giving those rights to married women, and if the Bill of the right hon. and learned Recorder (Mr. Russell Gurney) became law, married women would be entitled to vote in respect of their property.

MR. STAVELEY HILL

said, he should support the Bill of the hon. Member for Chester (Mr. Raikes), because it extended the power of the County Court Judges to prevent the earnings of poor women from being squandered by dissolute husbands.

MR. HERMON

said, that as a large employer of labour, he thought the Bill of the right hon. and learned Member for Southampton would, of the two, give the best security to poor women for their earnings; but in Committee several important alterations would have to be made.

MR. MUNDELLA

said, he never passed his factory gate without having inquiries addressed to him as to when Parliament was going to pass this Bill. He knew of scores of cases in which the earnings of poor women were taken out of their hands by their husbands on Saturday evenings and spent in drink; and of the case of a poor paralyzed woman who had maintained herself for some years, and who had lately had a legacy left her, but the trustees dare not pay it her lest the husband should get it. There were many such cases. He trusted that the House would pass the Bill of the right hon. and learned Member for Southampton.

THE SOLICITOR GENERAL

said, he could not refrain from congratulating his right hon. and learned Friend opposite (Mr. Russell Gurney) on the advance which this question had made since last year. Why, last year, the hon. Member for Chester (Mr. Raikes) moved the rejection of his right hon. Friend's Bill; but the hon. Gentleman now came forward with a Bill of his own, which was a great advance on his speech of last year. If he were not afraid of breaking the rules of the House, he should say that this was a great example of a Raike's progress. He thought that this Bill should pass a second reading on broader grounds even than those put forward by the right hon. Gentleman. He (the Solicitor General) did not regard it so much as a woman's question, or even as a poor woman's question, but simply as a question of justice. If A, by law, took away the property of B without B's consent, that seemed to him, unless there were an overwhelming necessity for it, to be an unjust state of the law. The Court of Chancery existed chiefly to mitigate in some respects this inequality in the laws; in the case of persons who had recourse to it. Persons of prudence and experience had recourse to marriage settlements, and the Court took upon itself to violate the law, and set up the rights of married women to property against the decisions of the Law Courts. And why should not this protection, which was thrown around the rich by the force of marriage settlements, be thrown about the poor by law? On the broadest ground he gave his cordial assent to this measure. He trusted that a measure to promote a fusion between law and equity would shortly come down from the other House; but with regard to the present measure tending in the same direction, there was no reason why its immediate passing should be delayed.

Motion agreed to.

Bill read a second time, and committed for To-morrow.