Commons Sitting of 18 April 1877

MINUTES.
— PUBLIC BILLS - Resolutions [April 17] reported— Ordered— First Reading—Public Works Loans (Ireland) [139].
Ordered—First Reading—Executors (Scotland) [140].
Second Reading—Married Women's Property (Scotland) [41]; Companies Acts Amendment (No. 2) [109]; Reservoirs [132] Norfolk and Suffolk Fisheries [117]; Local Government Provisional Orders (Horbury, &c.) [126].
Considered as amended— Metropolis Toll Bridges [131].
Withdrawn — Territorial Waters Jurisdiction [10].

TERRITORIAL WATERS JURISDICTION BILL— [BILL 10.]
(Mr. Gorst, Mr. Ritchie, Sir H. Drummond Wolff.)
TERRITORIAL WATERS JURISDICTION BILL— [BILL 10.]

  SECOND READING. BILL WITHDRAWN.
  Order for Second Reading read.
  MR. GORSTsaid, the Bill which he asked the House to read a second time
  1380
  consisted of two clauses only. The 1st declared that the sea within a distance of three miles from the coast was part of the Queen's dominions, and the second made provision for the better administration of justice within those limits. If the Motion for the second reading were adopted, the only principles to which, in his opinion, the House would be committed were, that these territorial waters were part of Her Majesty's dominions, and that some provision ought to be made for the better administration of justice within them. There would no doubt remain a further and very important question—namely, what that better provision should be. There was a good deal to be said both for and against the particular provision embodied in the Bill, that jurisdiction should be exercised by the authorities of the neighbouring counties; but he thought the fundamental principles to which he asked the House to assent offered matter enough for an afternoon's discussion, and he should, with the leave of the House, reserve what was to be said as to the particular provision to be made for the administration of justice till a further stage of the Bill. The necessity for some legislation on the subject had arisen from the well-known case of the Franconia. A. German vessel on her voyage from Hamburg to New York passed within two miles of Dover Pier, and, through the negligent navigation of her captain, ran down the Strathclyde, a British vessel, and caused a number of persons to be drowned. The captain of the Franconia was tried for manslaughter at the Central Criminal Court and found guilty by the jury. But a question of law was submitted to the Court for Crown Cases Reserved, as to whether the Central Criminal Court had jurisdiction to try a foreigner on beard a foreign vessel in the position of the Franconia for any offence whatever. The Court had ultimately, by a majority of one, come to the conclusion that the Central Criminal Court had not the jurisdiction it had assumed, and accordingly quashed the conviction. It was very important to bear clearly in mind what the Franconia case did and did not decide. It did not decide, as many persons had supposed, that the three miles' zone was not part of the Queen's dominions. Two of the Judges, it was, true, had expressed an opinion to that effect and had given

  1381
  their judgment upon that ground. The six Judges, however, who constituted the minority had expressly decided that the territorial waters were part of the Queen's dominions. The Lord Chief Justice of England and those who concurred with him had guarded themselves against being supposed to pronounce any opinion upon that question. The Lord Chief Justice said—
  "It is obviously one thing, for the Legislature of a nation may, from the common consent of other nations, have acquired the full right to legislate over a part of the world which was before high sea, and, as such, common to all the world; another, and a very different thing, to say that the law of the local State becomes thereby, at once and without anything more, applicable to foreigners within such part, or that, independently of legislation, the Courts of the local State can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things—the power of Parliament to legislate and the authority of our Courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which it is evident is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide."
  And Mr. Justice Lush, in assenting to this judgment, observed—
  "I wish, however, to guard myself against being supposed to adopt any words or expressions which may seem to imply a doubt as to the competency of Parliament to legislate as it may think fit for these waters. I think that usage and the common consent of nations, which constitute international law, have appropriated the waters to the adjacent State to deal with them as the State may deem expedient for its own interests."
  It was thus evident that the question whether the territorial waters were part of the Queen's dominions had, in the Franconia case, not been decided at all. Under these circumstances it was impossible for Parliament to evade the necessity of determining the question. But the Court had distinctly decided in the Franconia case—and against that decision there was no appeal—that there was no Court of criminal jurisdiction in the country which could punish a foreigner on board a foreign ship for any offence committed in that part—if it was a part —of Her Majesty's dominions. It was impossible that so soon as the existence of such a state of things was brought to
  1382
  the knowledge of the country its continuance could be any longer tolerated. He should, therefore, in the first place, endeavour to establish, to the satisfaction of the House, that the territorial waters were part of Her Majesty's dominions; and, should he succeed in bringing the House to adopt that opinion, he believed there would be little difficulty in convincing them of the further proposition that some better provision for the administration of justice should be made. It was necessary, in the first instance, to consider what power Parliament had in the matter. Of course, if they chose to declare by Act of Parliament that any particular place was part of the territory of the British Crown, all the Courts, Judges, and officers of Her Majesty would be bound to recognize it as such, and it would be for the Government of the country to settle any difference which might arise with foreign nations by reason of the jurisdiction so assumed. It was, moreover, true, as some persons had pointed out, that we could not admit that our Empire depended upon the agreement and consent of any foreign Power. Parliament itself must fix the limits within which the Queen's authority should be asserted, and within such limits Her Majesty might suppress by force any interference with, or resistance to, her authority on the part of any Power in the world. But however correct such a doctrine might be in theory, he should not dream in practice of asking the House of Commons to declare any place to be part of British territory unless it was certain that such declaration would be accepted as just by the Governments of all civilized countries. He would, therefore, proceed to show that foreign nations recognized the territorial waters of a State as part of its dominion, and to do this first by reference to writers on International Law, and secondly to the evidence of Treaties. The reason why the authority of writers on International Law was conclusive in a case of this kind was well stated by Mr. Chancellor Kent—
  "In cases where the principal jurists agree, the presumption will be very greatly in favour of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on International Law." [P. 43.]
  If, therefore, it turned out that the

  1383
  general body of writers on International Law recognized the doctrine that the territorial waters were a part of the dominion of the State, we might safely declare it to be so by Act of Parliament. Any civilized nation which objected would be arrogantly setting all ordinary law and justice at defiance. There were two points upon which no one would dispute that the authorities from Grotius downwards were agreed. First, that the jurisdiction of a State did not altogether cease at low-water mark, but that there was jurisdiction of some kind or other over the neighbouring seas; secondly, that such jurisdiction extended at least to a distance of three miles from low-water mark. Many writers contended for a much more extensive jurisdiction, but upon the distance of three miles they were all agreed. The point upon which there was some difference of opinion was, whether the jurisdiction thus conceded upon the high sea was an absolute jurisdiction, or one limited to certain specific purposes. Grotius, who was the father of International Law, laid down in the year 1609 the true principle, which every subsequent writer on International Law had followed. He says—
  "Videtur autem imperium in maris portionem eadem ratione acquiri, qua imperia alia; id est, ut supra diximus, ratione personarum et ratione territorii. Ratione personarum, ut si classis, qui maritimus est exercitus, aliquo in loco maris se habitat; ratione territorii, quatrinis ex terra cogi possunt qui in proxima maxis parte versantur, nec minus quam si in ipsa terra reperirentur."—[Lib. ii. cap. 2, s. 13.]
  So that Grotius seems to regard the jurisdiction exercised at sea to be of the same kind as that exercisable on land. Bynkershoek was the first who gave the reason for the geographical limit of this jurisdiction. He says—
  "Quare omnino videtur rectius eo potestatem terræ extendi, quousque tormenta exploduntur; eatenus quippe, cum imperare, tum possidere videmur. Loquor autem de his temporibus; quibus illis machinis utimur; alioquin generaliter dicendum esse, potestatem terra finiri, "ubi finitur armorum vis; etenim hæc,ut diximus, possessionem tuetur."
  Without troubling the House with a great number of intermediate authorities, and repeating the principles of Grotius and Bynkershoek, he would refer to a passage from Vattel. Vattel was a good authority upon questions of International Law, not from any special merits of his own, but because he had
  1384
  fairly collected and summarized the general propositions of International Law, collected from various sources which were current in his day, and, being a Swiss, he was likely to be peculiarly impartial in respect of any question which related to maritime jurisdiction. Vattel wrote as follows:—
  "A nation may appropriate to itself things, the free and common use of which may be dangerous to it. That is the reason why Powers extend their dominions over the sea as far as they can protect their right…. These parts of the sea thus subject to a nation are comprised within its territory."
  And he lays it down as most consistent that the dominion of a State over the adjacent sea should extend
  "as far as is necessary for its safety, or it can make its power respected." — [Droit de Gens, § 288.]
  The House would naturally attach great importance in a matter of this kind to American authorities, and he would therefore read to the House the statements of Chancellor Kent and Wheaton. Kent says—
  "All that can reasonably be asserted is that the dominion of the Sovereign of the shore over the contiguous sea, extend, as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as a cannon shot will reach, and this is usually calculated to be a marine league; and the Congress of the United States have recognized this limitation, by authorizing the district Courts to take cognizance of all captures made within a marine league of the American shores."—[P. 112.]
  Wheaton states that by the general approved usage of nations the maritime territory of every nation extends—First, to the ports, &c.; secondly, to the distance of a marine league, or as far as cannon shot will reach all along the coasts of the State. Then, after explaining how absolute is the jurisdiction of the State within its ports and harbours, he proceeds—
  "It may, perhaps, be thought that these considerations do not apply with the same force to those portions of the sea which wash the coast of any particular State, within the distance of a marine league, or as far as a cannon-shot will reach from the shore. The physical power of exercising an exclusive property and jurisdiction, and of excluding the action of other nations within these limits, exists to a certain degree; but the moral power may perhaps seem to extend no further than to exclude the action of other nations to the injury of the State by which this right is claimed.…. This exclusive claim is

  1385
  sanctioned both by usage and convention, and must be considered as forming a part of the positive law of nations."—[§ 189.]
  Of the modern authorities, the doctrine of dominion over the territorial seas had been carried to the greatest length by Hautefeuille, from whom he cited several passages; and even the French writer, Ortolan, who was disposed to restrict the dominion of the sea to the closest possible limit, and who had been cited by the Lord Chief Justice as an authority on the other side, admitted that—
  "Les lois de police et de sûreté y sont obligatoires. En un mot l'Etat a sur cet espace, non la propriété, mais un droit d'empire; un pouvoir de législation de surveillance et de juridiction, conformément aux règles de la juridiction internationale."
  Professor Bluntschli, who had also been cited as an authority on the other side, admitted—
  "The State is entitled to extend measures necessary for the protection of its territory and its laws to these portions of the sea; and to make regulations of police with reference to navigation and fishing; but it is not entitled in time of peace to deny the right of passage or the use of these waters for navigation, or to exact tolls in respect of them. Ships which confine themselves to passing along the coasts of a State, in the part of the sea which forms a portion of its territory, are subject for the time to the sovereignty of such State, in this sense, that they are bound to respect the military and police regulations adopted by it for the safety of the population of the coast."
  It seemed to him, therefore, that even these last-mentioned writers admitted the authority of the State to exercise its ordinary criminal jurisdiction for the protection of life and property over the territorial waters. The fact was, that so soon as they admitted that a Sovereign State had a jurisdiction of some kind in a given place, the nature and extent of the jurisdiction which the State might think fit to exercise in that place could be limited only by its Sovereign will. They might keep a nation out altogether, so that it could exercise no jurisdiction whatever; but as soon as their admitted jurisdiction for any purpose their power to limit jurisdiction was gone. The admitted nation could be restrained by moral considerations only. The doctrine of jurisdiction over the territorial waters was constantly admitted in Treaties. We had Treaties in existence with France and until recently with America, by which rights of fishing were secured to French and American subjects in certain
  1386
  parts of the territorial waters of Newfoundland. It appeared to him that by stipulating that these particular foreigners should peacefully enjoy the right of fishing, we implied such jurisdiction over these waters as would maintain security of life and property. We were also under Treaty engagements of very ancient date between France, Russia, and the United States, to prevent the capture of any of their vessels by their enemies in time of war, so long as these vessels were within our territorial waters, and these engagements prove that these waters were regarded as part of our dominions. He thought he had given the House sufficient reason to think that the declaration contained in the 1st clause of the Bill was warranted by International Law, and that all the civilized countries in the world not only regarded our territorial waters as part of our dominion, but considered the British Crown responsible for the security of life and property in these waters. The Franconia case established that there were no means for the protection of life and property against offences committed by foreigners. A foreigner on board a foreign ship might commit any crime, even murder, within those waters with impunity, not because we had no jurisdiction, but because the Parliament of the country had neglected to provide a tribunal by which justice could be administered. If such a state of things were allowed to continue we were liable at any moment to be disgraced in the eyes of the civilized nations of the world. The victim in the Franconia case was a British subject, but the same thing might have happened to a foreigner —say a French subject—and the person who had committed the homicide instead of being the subject of a State where justice was so well administered as in Germany might have been a citizen of a South American Republic, or of China or Japan. In such a case the crime, even if it amounted to murder, would go practically unpunished, and though there might be no ground for any claim of compensation, the French Government would have a just right to remonstrate with the Government of Great Britain for having left a part of its territory so insufficiently provided with protection to life and property. He now thought he had made out a case for the second reading of the Bill. It was quite necessary

  1387
  that we should make up our minds whether our territorial waters were or were not part of our dominions. If we came to the conclusion that they were, we ought to make adequate provision for the administration of justice within their limits. The Franconia case had proved to us that the provision for the administration of justice was inadequate, and we ought no longer to allow our well-governed land territories to be surrounded by a sort of maritime Alsatia. The hon. and learned Gentleman concluded by moving the second reading.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Gorst.)
  SIR GEORGE BOWYER,in moving that the Bill be read a second time that day six months, said, he had heard with great satisfaction the able and learned speech of his hon. and learned Friend. He could not, however, assent to the propositions which he had put forward in this Bill. No doubt his hon. and learned Friend had quoted the authority of various learned writers on International Law in support of his propositions; but it was a common mistake to suppose the writers on this branch of law were authorities—International Law was nothing more than the maxims of sound common sense which commended themselves to the acceptance of the universal sense of mankind. It was an abuse of terms to call the opinions of these writers authorities. In regard to these questions the maxim ought never to be forgotten—sententiœ ponderandæ sunt non numerandœ. This Bill consisted of two clauses. The 1st, which was not perhaps very accurately expressed, in substance amounted to no mere than what had been admitted in the Franconia case by all the Judges—namely the existence of the three mile zone. But the 2nd clause, which asserted our Courts to have jurisdiction over the high seas to a distance of three miles from the coast was utterly unprecedented in International Law. For such a claim to municipal, civil, and criminal jurisdiction, no authority had been cited by his hon. and learned Friend. No authority his hon. and learned Friend had quoted, nor any he had not quoted, held any such doctrine. The Emperor Hadrian himself, when he claimed to be Lord of the
  1388
  Earth, coupled it with the admission that God was Lord of the Sea. The principle was absolutely essential to the welfare of mankind. The sea was a common highway, and all the navies of the world were free to navigate it. Although the passages which had been cited by the hon. and learned Member spoke of "jurisdiction," the jurisdiction implied was very different from that which was exercised on land. It was admitted in the Franconia case that it was not an ordinary municipal jurisdiction, having reference to the civil or criminal law of the country; but that it was a jurisdiction conferred for the safety of the State or the enforcement of International Law. One absurd result of the view of his hon. and learned Friend would be that, if a child were born of French parents on board a French ship, within three miles of the English coast, it would be a natural subject of this country, and in this country might be indicted for treason for fighting against it. Another would be that if French subjects entered into a contract on board a French ship within three miles of the English coast, any dispute arising therefrom would have to be decided according to English law. These results would be contrary to the law of nations, under which every ship was governed according to the law of the nation whose flag it bore. The jurisdiction was one that could not be enforced by process of law, and could be enforced only by cannon shot. An attempt to extend a Queen's writ or the warrant of a magistrate to the high seas would be unprecedented, and would give rise to the greatest complications. An Act of Parliament might say that the Queen's writ should run to Paris; but what would the Act be worth? Again, it had always been hold that the high seas could not be appropriated as private property, as that would be an injury to mankind generally. That was a rule of common sense, and was supported by both International and natural Law. Again, a country could not exclude ships of other nations from using these waters beyond what its own safety required; and it was obvious that there could be no danger in allowing ships in the course of peaceful traffic to come within three miles, or even two miles, or a less distance of our coast, and to prevent them doing so would be illiberal and a great injury to mankind. On the

  1389
  other hand, the law of nations allowed a country to exercise jurisdiction within the three mile zone. That was admitted in the case of the Franconia; but what was that jurisdiction? It did not extend to the administration of the municipal law of the country, but of the International Law. It was not intended for a private purpose, but for the safety of the State. Parliament could not pass a law which would be binding upon foreign countries. There could be no derogation from the principle that every ship was part of the country to which she belonged; and before passing this Bill it would be necessary to ask foreign States whether they would consent to it or not, as without such consent it would be null and void. On the other hand, the passing of it might lead to the raising of serious questions and disputes with foreign countries. In the Franconia case the Judges could find no precedent to guide them, and they wisely decided against any municipal jurisdiction over a ship on the high seas. They drew a distinction between preventing the capture of prizes or making arrangements to secure the welfare of a country and the ordinary jurisdiction exercised on terra firma. The Bill would subvert the principle which resticted the operation of the Common Law to terra firma and to our ports, it would reverse a judgment of the Court of Appeal, and it would subvert the principles of International Law and involve us in difficulties with other countries; and for these reasons he moved its rejection.
  MR. STAVELEY HILL,in seconding the Amendment, said, there was no doubt that this country had a certain jurisdiction over these waters to a limited distance; but the real question was, what jurisdiction—that was the question—rested upon authority and convenience, and could not be determined by any authorities who wrote at a time when there was no such thing as public law. There was a municipal law which had authority over the land; but when they came to the high seas it became a question of International Law. On the seas all men met on an equality. The Bill would not promote public convenience, but it would raise considerable difficulty by taking away the material limit of municipal law—namely, low-water mark, and substituting an artificial limit of three miles within which
  1390
  this country was to claim exclusive jurisdiction. The limit itself, or the actual distance of a ship from the shore, would be a most difficult thing to prove to the satisfaction of a jury, particularly on a foggy day or a dark night. Further, by giving the jurisdiction to England, we should take it away from the country whose flag the ship carried. There was no difficulty now in pursuing a criminal to the country to which he belonged; and demanding that he should be tried according to the law of that country, and, if the wrong done were not a legal offence, it would be a matter for representation by one Government to the other. But he did not think there was any foreign Government that would refuse to take cognizance of the crime. The high sea, like the highway, was free to all to pass and repass, and we had no right to claim any exclusive jurisdiction beyond low-water mark. Ships were constantly passing and repassing, using the sea as a common highway. In exercising that right, even when within the three mile limit the riparian State had no control over them; but if they obstructed the navigation within the three mile limit, that would be an offence against the law of nations, and the adjoining state would interfere. He did not see that any new power was required, and if it were he did not see how it could be given; and therefore he seconded the Amendment.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Sir George Bowyer.)
  Question proposed, "That the word 'now' stand part of the Question."
  SIR WILLIAM HARCOURTsaid, he could not go as far as the two hon. and learned Members had done in opposition to the Bill, for since the decision in the Franconia case, it seemed absolutely essential that there should be legislation on the subject. The decision had taken the Governments of foreign countries by surprise, for it had up to that time been supposed that there was a power in every State to exercise jurisdiction within the three mile zone. The judgment in the Franconia case, therefore, appeared a disclaimer on the part of the English Courts of a jurisdiction which up to that time had been uni-

  1391
  versally supposed to exist, and which was exercised by the other countries of Europe. He did not understand the Judges to say that such a jurisdiction as was claimed in that case ought not to exist, but rather that from some defect of legislative authority it did not actually exist in this country. No one denied the proposition that the high seas were common to mankind; but that was not the question raised. He could not concur in the Bill in its present form, because the assertion of the 1st clause that the high seas constituted part of the dominions of Her Majesty was much too absolute; and it was not necessary to make an assertion of that kind for merely police purposes. A Bill upon so important a matter ought not to be in the hands of a private Member—he thought the subject ought to be taken up on the responsibility of the Government and dealt with without loss of time. Admitting that the dominion of the seas was free, it was universally admitted that it would not be convenient for riparian States or for other States that there should be no authority whatever within a certain distance from the land. The old rule was "within the range of cannon shot," but that was an uncertain definition, and it had been given up. It was then proposed that the visible horizon should be the limit — but that was equally uncertain and inconvenient, and in later times it had been thought better to adopt a marine league as a convenient distance. It did not amount to an absolute surrender of dominion on the part of other States to the riparian State, but it amounted to a consent on the part of other States that the riparian Government should exercise jurisdiction within that limit. But the difficulty now was that there was no legislative authority to exercise that jurisdiction, and, according to the Franconia decision, there must be legislative authority. It was also a question how far that jurisdiction was to go. At one time it was admitted that it went as far as the safety of the State was required, but in the Franconia case no authority was cited for the proposition. The hon. and learned Member for Wexford County (Sir George Bowyer) said there was no authority for asserting this jurisdiction, but he (Sir William Harcourt) thought that the Customs Laws Consolidation Act of last year, sec. 134, asserted that jurisdiction, inasmuch as it
  1392
  gave power to the Customs officers to follow a ship to that limit, and for many years England and America exercised such authority under the Hovering Acts, by which officers of Customs were authorized to board vessels for revenue purposes at a distance of four leagues from the shore. That was an extreme assertion of jurisdiction on the high seas for municipal purposes, which was last year restrained to the limit of one league; but it showed the claim of a country to exercise its jurisdiction on the high seas beyond the lines of high and low-water marks. No doubt claims of this kind could not be made except by the general consent of nations, and if this were a new question, it might be necessary, before proceeding to assert such a claim, to seek the consent of other nations by treaty; but as it was, we might assume such consent without treaties, and we should not find any foreign State objecting. It seemed to him that the Bill was in some respects defective—for instance, there was no provision with respect to bays, as was done in the French Act, by drawing an imaginary line along the opening of a bay, and measuring the outside limit therefrom. He could not agree that it was for the Parliament of England to declare that that should be done which had not been done since the days of the Stuarts. The only ground on which Parliament could claim to legislate was that there had been an universal or general consent that there should be a three mile limit; and this jurisdiction would be admitted so long as there was a moderate and judicious exercise of it, founded on that general consent. How far we should carry that jurisdiction was a matter of discretion which would require careful consideration, as the practice of other countries was not uniform. Some took cognizance of all offences on board merchant vessels in their ports, but France declined to interfere uunless a French subject was concerned. The Franconia judgment had brought this important question to a crisis, and he hoped they would hear from the Attorney General that Her Majesty's Government would take charge of the Bill. He had no doubt that the hon. and learned Gentleman the Member for Chatham would willingly resign his charge of it to those who could carry it forward with greater facility and responsibility.
  MR. WHEELHOUSEsaid, that the questions involved in this Bill, however short the measure itself might be, were really very large and very momentous; and it was necessary, therefore, that the House should be cautious before it entered upon any legislation of the character proposed. Further, he was decidedly of opinion that the Government should be responsible for anything that was done, rather than that legislation should be initiated by any private Member, in reference to this subject. It would easily be perceived that any course taken on so grave a question might involve, not merely the interests of this country, but even those of Europe and the world at large; and, therefore, it was of special importance that if the matter were to be dealt with at all, it must be by some Administration which would thus become responsible for what was done. They had been told that it was desirable to draw a hard-and-fast line of three miles from what was denominated—though somewhat vaguely—"the coast;" but he would remind the House that by naming such a line and by placing themselves by statute immediately upon, or about it, or in other words by setting forth a statutory jurisdictional limit, they might, and indeed most probably would, by that very act, raise hundreds of other and most difficult questions of International Law. Take the example just pointed out by the hon. and learned Member for West Staffordshire (Mr. Staveley Hill) of anything occurring at sea on a foggy day, and just upon the alleged border of this three-mile limit; surely this would in itself become a subject of endless litigation; and upon that ground he, for one, thought it most undesirable to lay down any hard-and-fast line, at least by legislation. To say that every vessel, when passing on the regular and open tideway of the sea within three miles of any bay or headland of this country, should be subject to our jurisdiction, and our jurisdiction alone, would be to enunciate a principle which, he was satisfied, would immediately be disavowed by every country in Europe. This Bill reminded him of an old adage common in his own Profession—"Hard cases make bad law;" and he could not help thinking that if it had not been for the late and very exceptional instance of the Franconia they would never have heard of this Bill. He cer-
  1394
  tainly thought that it was undesirable to legislate in order to meet the circumstances of one comparatively small case; because, although important enough to those immediately concerned, the matter of the Franconia, when considered in relation to the whole subject, must be looked upon as really but a small case, and he was satisfied that the question would be dealt with infinitely better and more satisfactorily by the lawyers in Westminster Hall than by laying down some hard-and-fast line in any statutory enactment whatever. If the law required interpretation, the Common Law Judges, and especially those who were connected with Admiralty jurisdiction, were far better able to supply one than the House of Commons. By these means they would have the best trained and most astute intellects brought to bear upon the several matters in dispute, and each case would be more carefully considered than it could otherwise be. So far as he had observed, in most matters of statutory law and of statutory legislation, every attempt to apply a very narrow limit to the discretion of those who practically administered it, had resulted in misfortune and in failure, nay, in some instances, had amounted even to something like an inadvertent denial, as it was sometimes called, of justice. The opinions of Grotius, of Kent, and of Vattel had been cited in support of the principle laid down by this Bill; but he contended that the views of old jurists, which, after all, were but the expression of a probable view of the construction of the various Courts in some possible and tentative instances, expressed it might be a couple of centuries ago, would form, in the changed circumstances of the years 1876-7, very little to guide our judgment in matters of the practical action of to-day. The views of the old jurists—and it was only right to say that he individually had a profound respect for them—were altogether beside this question, except for the purpose of showing what was in their minds at the time they wrote. Nothing could be more clear than that in every case of this kind it must be left to the Court to determine what the decision ought to be upon the facts disclosed by the evidence, aided by the careful application of our own well-known principles of Maritime Law. He would warn them, moreover, that if they endeavoured to lay down new principles of

  1395
  International Maritime Law, they would instantly be told—and most reasonably so—that, although they might be the best judges of their own position, other States claimed the like right to judge as to theirs. If they once admitted that each State was to be the arbiter for itself alone in matters of this kind, they would be rendering themselves liable and open to constant methods of retaliation. Each nation would immediately hold itself at liberty to act in the way which it considered most suitable to its own interest, and there would be constant differences which, in the end, might, nay, probably would, be magnified into a casus belli. England, which had very considerable interests at stake, the largest Navy, and the most important Mercantile Marine in the world, ought to be especially careful how she, of all others, dealt with this subject. It was urged that questions of this kind had been continually open. Granted; and more, he was free to say that he was very anxious that they should still keep the matter open very much as it was, until such time at least as some responsible Administration should see fit to deal with the question as a whole. If the Government could not see its way to undertake the matter, it would be far better to allow it to rest until they could find time to deal with it, since it was very improbable that a second Franconia case could arise for many years to come, if indeed for ever. This was, he thought, all the more necessary, because he doubted whether this Bill would even actually enable our several Courts to carry into effect the proposed jurisdictional legislation; or, if it did, he still thought the matter had better be left in the hands of those Courts. For all maritime purposes three miles might now be taken as the well-understood limit within which vessels might use the water as a highway, and as a highway solely. Beyond that, they, as lawyers, had understood that the sea was international; and he ventured to think that it was far more advantageous to rest upon that broad principle, clear, well-defined, and comprehensive as it was, than to seek either to enlarge, or to restrict it by the closer language of enactment. If they could hereafter, as a Parliamentary matter, in common with the legislation of other countries, and with a clear understanding both at home and abroad, in
  1396
  England—and with the assent of all the other civilized maritime States—deal with the question in a broader and more comprehensive spirit, he should be very glad to support any effort in that direction; but he thought that this Bill should not be passed in its present form. Again, there was another view of this matter, smaller in itself and of less importance, but of which the House must not lose sight, and to which he wished to call its attention for a moment. Along the whole of their coasts there were bays and indentations, where rights existed which belonged to several proprietors; sometimes those rights had been granted, sometimes they had been bought, sometimes they had been obtained by inclosure, and sometimes, again, they had been reclaimed by virtue of fortification walls or embankments against the sea. It was unnecessary to remind the House, too, that there were such things as private harbour rights, and rights of toll or fishery. Ho should like the House to consider seriously what might become of many of these rights if this Bill passed as it now stood. It would almost follow as a necessary corollary that there must be undue interference with many of such private rights if they made a line of demarcation so distinct and definite as that proposed. He was merely anxious that they should not lose sight of this, which he might call the landward view of the case, although he did not for one moment lose sight of, or even underrate, the importance of the graver questions of maritime rights or shipping interests. It must not be forgotten, too, that not only hon. Members of that House, but persons of all ranks in life, from the highest to the lowest, from the owner of a fishery to the fisherman himself, from the proprietor of the foreshore to the humblest gatherer of kelp and sea-weed, might have their rights on the one hand, or their business on the other, most seriously interfered with by the present Bill. He had every reason to believe that there was already a known line acted upon by the Courts in reference to anything bearing upon the maritime jurisdiction of the Crown, whether civil or criminal, in this country; and he was fully aware that the Courts were able to cope with any difficulty that might arise, and thus he thought it would be unwise, in the last degree, for the Legislature of this country, merely on account of the

  1397
  views of its Judges having differed on one single subject like that of the Franconia, to seek to disturb the great principles upon which our International Maritime Law was based. At any rate, according to his humble opinion, it would be absolutely necessary before such a Bill as this became law, to have some provision on the face of it, excepting not only the rights of these private proprietorships, but far more sedulously guarding even those of the Crown itself, which, notwithstanding the general understanding of the law saving those rights, were, he feared, in no small danger of being, by possibility, infringed: in short, the whole subject was far too large, in all its aspects, to be dealt with by that which, with all due deference to its promoters, he (Mr. Wheelhouse) could only consider as somewhat in the light of patchwork or piecemeal legislation.
  MR. FORSYTHsaid, the subject seemed to be mere fitted for a Court of Law than for the House of Commons, as the empty state of the benches attested. He opposed the second reading of the measure, because the Bill proposed to give extra-territorial jurisdiction to our Courts which no Act of Parliament could confer. There was no maxim more clear and certain in law than that which said that a State might pass what Acts it liked, so far as they did not extend beyond the limits of its own territory; but beyond that territory they had no power or authority at all. The ground of the judgment of the majority of the Court in the case of the Franconia was that foreign nations had never assented to a criminal jurisdiction within the three miles limit. It might, however, be inferred that a certain extraterritorial jurisdiction was conceded to us by the general consent of nations, which gave us certain rights and powers in reference to the revenue, and to fiscal and police matters. In the event of the Bill becoming law, foreign countries would say that the sea was the open highway of nations, and that we might as well bring in a measure declaring that we had extra - territorial jurisdiction over half the English Channel. And if the Court was right, then, as far as the passage of a foreign ship from one country to another was concerned, the three miles limit conferred upon us no criminal jurisdiction whatever. The judgment given in the case of the Fran-
  1398
  conia was now the law of the land, and the House of Commons not being a Court of Appeal it would be impossible to set it aside. Suppose, as he said, the Bill passed, defining the territorial jurisdiction of this country to be three miles from the coast, and that France, or Russia, or Germany objected to it, what could then be done? Nothing. They had no power to insist on their rights, and the present Bill would not remove the difficulty. If England claimed this right for herself, she was bound to give a similar right to other States, and he thought the people of this country would not like an English subject, who had committed an offence, say in French or Spanish waters, to be tried by French or Spanish law. He should therefore oppose the second reading of the Bill.
  THE ATTORNEY GENERALsaid, that this subject being of a purely legal character, perhaps, did not excite very great interest in the House, but still it was a very important matter, and deeply interested those who had studied it; and whatever might be the result of this discussion, all who had listened to it must feel obliged to the hon. and learned Member for Chatham (Mr. Gorst) for having brought the subject under their notice. The hon. and learned Gentleman, who had devoted a large amount of time to the investigation of this question, and who had introduced this measure with much ability, had started with two main propositions—first, that a certain belt or zone of water round the coast was territorial water and formed part of Her Majesty's dominions; and, secondly, that that belt or zone of water, being part of the territory of Her Majesty, Parliament had a right, by legislation, to give the Courts of the country jurisdiction over it. He was bound to confess, notwithstanding all that had been advanced by the hon. and learned Member for Wexford (Sir George Bowyer) and by the hon. and learned Member for West Staffordshire (Mr. Staveley Hill) that the hon. and leaned Member for Chatham had established both his propositions. When they looked at the authorities the hon. and learned Gentleman had cited, it was abundantly clear that it was the recognized law of nations that there was a belt or zone of ocean which really and truly formed part of the State it adjoined — although some doubt was expressed as to the precise

  1399
  width of that belt. That belt of ocean was subject to the easement of the right of free passage over it by the ships of every nation in the world; but subject to that easement it formed part of the territory of the country whose shores it washed. If that were so, then it was equally clear that Parliament had the right by enactments to give the Courts of this country jurisdiction over it. The hon. and learned Member for Chatham had cited authorities—some very ancient ones—which commanded our respect; but in his opinion it was unnecessary to cite authorities on the point, because the law in reference to it had recently been declared in the Franconia case. When that case was examined, it would be found that the great bulk of the Judges who decided it were of opinion that the belt of ocean to which he had referred was the territory of the State whose shores it adjoined. The difference of opinion that arose in that case was, as to whether the Acts of Henry VIII. and George III. gave jurisdiction over that belt to the Court of Admiralty to deal with offences committed within its limits by foreign subjects on foreign ships; and it was the opinion of the majority of the Judges that those Acts had not conferred such power upon that Court. But, in reference to the vital question raised to-day, whether the three miles belt of water surrounding this country formed part of the dominion of Her Majesty, and whether the Legislature had power to confer jurisdiction over it upon our Courts of Law, the great majority of the Judges were agreed. Six out of the thirteen learned Judges who ultimately delivered judgment in that case were certainly agreed, because they expressed an opinion that this belt was not only the territory of this country, but that the Court of Admiralty had jurisdiction over it under the Acts of Henry VIII. and George III., and that the Central Criminal Court, to whom the jurisdiction of that Court had beer transferred, had authority to convict the defendant of the crime of manslaughter. Lord Chief Justice Cockburn, Mr. Justice Lush, Baron Pollock, and Mr. Justice Field agreed with the minority of the Judges to the extent that they thought that the belt of water was British territory; but they did not think that the Acts to which he had referred gave the jurisdiction claimed to the Court of Ad-
  1400
  miralty. They, however, expressed their opinion that the Legislature of this country could confer that jurisdiction upon our Courts if it thought fit to do so. The Lord Chief Justice, in his most masterly judgment, said that, in his opinion, the consent of nations had established that this portion of the ocean was the territory of this country; but that the Acts in question had not given the Court of Admiralty jurisdiction over it, although they had power to do so. And the same view was taken by Mr. Justice Lush. The two propositions of the hon. and learned Member for Chatham were therefore established by the judgment in that case, and it was unnecessary to cite other authorities on the point. If any further authority, however, were required in support of them, it would be found in the provisions of the Hovering Acts, the Merchant Shipping Act, and in the Foreign Enlistment Act. But although he was of opinion that the hon. and learned Gentleman had fully established his two propositions, it by no means followed that he should be prepared to support the second reading of this Bill, which he did not think would satisfactorily remedy the defect in our law which had been brought into notice in the Franconia case. There were several objections to the measure, some of a minor and some of an extremely important character. The hon. and learned Member proposed to give jurisdiction over the belt of ocean within a limit of three miles from our shores to the Court of Admiralty, and also to the Courts of the different counties adjoining that belt. That was a provision which it was impossible to carry into practice, because it would be very difficult indeed to determine in many cases which Court would have jurisdiction over an offence committed within the three mile limit, and also because it would be inconvenient to set up conflicting jurisdiction on the part of the Courts in the different counties with that of the Court of Admiralty. The objection to this provision became more apparent when it was recollected that the operation of this measure was intended to extend to all the possessions of Her Majesty in all parts of the world; because no one would know what kind of Courts this jurisdiction would be conferred upon in some of our distant possessions. Another objec-

  1401
  tion to the Bill was that it proposed to lay down by statute that our jurisdiction extended only to a distance of three miles from our shores. He thought that would be unfortunate and embarrassing. Opinions on the subject of the limit of territorial waters were conflicting—indeed, history showed it be a shifting one. It had at one time been held that the limit was as much as was covered by the range of cannon; but if the range of artillery were to be accepted as the basis upon which that limit was to be fixed, it was obvious that with the enormous range of modern guns, three miles would not be a sufficient breadth for the belt. The hon. and learned Member appeared to forget that there were places in the world, such as Gibraltar, where British territory was within six miles of a foreign territory across the Strait, and in such a case it would be impossible to fix the limit at three miles. He thought, therefore, that this acknowledgment on our part that our jurisdiction only extended for three miles from our coasts would not be a very happy one for us to make. It would be unwise to lay down a hard-and-fast line of three miles if it were possible to attain the desired object without doing so. Another defect in the Bill was, that it made no provision with regard to the bays on our coasts. His hon. and learned Friend by this Bill dealt not only with England, Ireland, and Scotland, but with the dominions of Her Majesty all over the world. He (the Attorney General) did not say that the Parliament of this country had not the power to legislate for the dominions of Her Majesty wherever they might be, and whether or not they possessed provincial Legislatures. He knew that during the discussion of the Merchant Shipping Act, when called upon somewhat suddenly, he ventured to assert his belief that the Legislature of this country had the right to legislate for the foreign dominions of Her Majesty, he was met by a very flat contradiction from his hon. and learned Friend the Member for Dewsbury (Mr. Serjeant Simon), and —he was going to say to his horror, but that would be too strong an expression —to his sorrow his hon. and learned Friend was backed up by the very weighty authority of his hon. and learned Friend the Member for Oxford (Sir William Harcourt). He did not assert correctness at the time, but he had since
  1402
  discovered that in the proposition he laid down he was perfectly right, and his hon. and learned Friends wrong. But, although the Parliament of this country had a right to legislate for foreign dominions of Her Majesty, even if provincial Legislatures were established in them, it might not be prudent to do so. By obstinately pursuing such a course in the case of the Colonies in America, we unfortunately severed America from this country. He admitted that, owing to the state of the law as it had been declared by the Court of Appeal, it might be desirable to legislate on this subject; but he thought that before such legislation was embarked upon it would be wise and politic to consult the principal States of Europe—and, in fact, of the world—with reference to their view as to the limitation of the extent of territorial waters. He thought it would be desirable to ascertain what laws wore in existence in other States on the subject. Before we legislated for the dominions of Her Majesty—for the Colonies, for India, for Canada, for Australia—it would be wise to ascertain what were the views of the inhabitants of those Colonies with respect to this matter, and what were the laws already in force among them, in order that we might know that the legislation which we should propose would not clash with those laws. He thought that before we embarked upon legislation it was essential that there should be some sort of agreement among the principal nations of the world with regard to this subject. If that was to be done, it could not be done by a private Member. A private Member had not the means of obtaining information from foreign Governments or from the Colonies. No one was more competent than his hon. and learned Friend the Member for Chatham to introduce a measure on this subject, and no one was more persistent than he; but the difficulties in the way were too great even for his hon. and learned Friend with all his resolution to grapple with. Her Majesty's Government were considering what steps should be adopted with regard to this subject, and he hoped his hon. and learned Friend would leave the further management of this difficult and delicate matter in the hands of the Government, in which he was aware his hon. and learned Friend had thorough confidence.
  SIR HENRY JAMESjoined in the request made by the Attorney General to the hon. and learned Member for Chatham, that he would leave the consideration of this difficult subject in the hands of the Government. If the subject was to be legislatively dealt with as a claim put forward on behalf of the Crown, it should be done by the responsible Representatives of the Crown. It was impossible to leave this matter in the unsatisfactory state in which it had been left by the judgment of the Court of Appeal, and he trusted that the Government would deal with this matter, if not this Session, at all events early next Session.
  MR. MAC IVERsaid, that though he quite sympathized with the objects of the Bill, he thought it was not the moment to push this question. There were practical considerations of much greater importance than anything connected with the judgment of the Court of Appeal. There might be reasonable difference of opinion about the Franconia case; but he (Mr. Mac Iver) thought there was none as regarded the equal treatment of British vessels and their foreign competitors in matters of ordinary trade while actually in our ports. He deprecated insisting upon comparative trifles, and thought that the British shipowner's right to equal treatment in matters really important might be prejudiced by seeming to rest upon the less tenable ground taken in this Bill. He (Mr. Mac Iver) did not care much about criminal jurisdiction in territorial waters, nor about the merely legal questions involved; but he wanted to see foreign vessels subjected to the same jurisdiction as British vessels, in mercantile matters, while actually within our ports.
  MR. MARTENsaid, the subject was one that bristled with difficulties. As the Bill proposed to deal with it, it did what we ought not to do, and left undone what we ought to do. It was true that we might, by legislation, enforce our jurisdiction within our own territorial waters, but other nations were equally at liberty to make their own regulations over their limits. If a crime were committed in a foreign ship 10 or 20 miles beyond the three miles limit, we should have no remedy. The true remedy would be to enact that where any injury to persons or property was committed in a ship on the high seas, the offence should
  1404
  be deemed to have been committed at the place where the injury was received. He hoped the hon. and learned Member for Chatham would accept the view of the Government, and withdraw the Bill. He hoped also that the Government would deal with this subject comprehensively.
  MR. GORSTsaid, he could not resist the appeal of the Attorney General, and would withdraw the Bill. On a question of this gravity and magnitude he did not think he should have been treating the House respectfully if ho had made a speech without laying a Bill before them. He trusted the Government would deal with this subject with the least possible delay.
  Amendment and Motion, by leave, withdrawn.
  Bill withdrawn.

MARRIED WOMEN'S PROPERTY (SCOTLAND) BILL— [BILL 41.]
(Mr. Anderson, Sir Robert Anstruther, Mr. M'Laren, Mr. Orr Ewing.)
MARRIED WOMEN'S PROPERTY (SCOTLAND) BILL— [BILL 41.]

  SECOND READING.
  Order for Recond Reading read.
  MR. ANDERSON, in moving that the Bill be now read a second time, said: It is to give to married women in Scotland the same privileges as those possessed in England—in fact, to extend to Scotland some of the protection given in 1870 by the Act passed through Parliament mainly through the exertions of the right hon. and learned Gentleman the Recorder of London. The object of the Bill, briefly described, is simply to enable a woman, even if she is married, to call her own her own. The law on this matter in Scotland is exceedingly bad. The only protection a married woman has for her property or her earnings is through a Court, and then it is only given in the case of a wife who has been deserted by her husband. The result of this state of the law is that unpleasant husbands, who would be far better away, do not desert their wives, but remain within reach, and so get hold of their earnings whenever it suits them. As for protection of property, there is none at all. The state of the law would be absolutely intolerable if it were not for the fact that bad husbands are the exception and not the rule. The pro-

  1405
  tection orders obtained in the Court are an insufficient protection. It is a very invidious thing for a wife to apply to the Court for protection against her husband, and she would submit to a great amount of injustice before she does it. For that reason I think her property ought to be made her own by common law, and that she should have the remedies of the common law to protect her rights. At present our state of law is actually a bribe, and offers a large premium to unprincipled men to endeavour to get wealthy young women to run away with them. If men can induce girls to do that, probably there are no marriage settlements, and the result is that as soon as they have married, the personal property of the woman, and all that will subsequently come to her, becomes the husband's. Real estate does not become the property of a husband in this way, but he can deal as he chooses with the revenues, though he cannot make away with the property. He may thus, if he turns out a bad husband, dissipate all his wife's personal property—gamble it away, spend it in riotous living, spend it on mistresses if he likes; and even this greater iniquity may happen—he may will it away, and it may transpire that the wife, when she finds herself a widow, may also find that her husband has willed away her property to his mistress, and that she herself retains but a widow's portion of that which was really and entirely her own. Whether that depth of infamy is reached or not, the relatives of the husband come in and take away a share of that which was her property. This law is a remnant of the old Roman law, by which a woman was simply the chattel of her husband, and not entitled to hold anything of her own —by which the woman and her possessions passed into the ownership of the husband. We have changed that in the matter of sentiment, and the time has now arrived when it should be changed in the matter of law as regards property. It seems anomalous that we should consider a woman because she is married incapable of administering or dealing with her property. So long as she is a spinster she is able to deal with it, but the moment she becomes a wife she is incapable of doing so; and then, again, the moment she becomes a widow she is once more able to deal with it. Married life in Scotland is thus dealt with as if it
  1406
  were a state either of temporary insanity or a term of penal servitude, for it is only lunatics and felons who are similarly incapacitated from dealing with their property. All civilized nations except Scotland have changed this law long ago. It is 30 years ago since America relaxed it in some of the States, and I believe now that all the States, or nearly all of them, deal with the property of married women in the most liberal manner, and that most of those Judges who were opposed to the change are of opinion that it has worked extremely well. In our own Colonies we have worked in the same liberal way. It is 20 years since the law was relaxed in Upper Canada. Seven years ago Victoria relaxed it, and England did the same a similar time back; but still the law in Scotland remains unchanged. That would not have been the case if women had had a little more influence in the matter of our legislation, and I appeal therefore to those hon. Members who vote against giving women the franchise, and I say it is doubly incumbent on them to show that they are willing to protect the property of women, and save them from every possible injustice, seeing that they refuse to allow them to have some share in the legislation by which they are to be bound. The English law of 1870, although it made considerable progress in the way of protecting the property of married women, was not sufficient. So much was that the case that Lord Coleridge is about to introduce a measure into the other House, which in due time no doubt will be here, for remedying the defects in the English law. The English law affords protection in these respects—it gives married women all their wages and earnings, and all the investments they have been able to make out of these. It protects for her all deposits in savings banks, all moneys in the funds above £20, and all shares and debentures in joint-stock companies and benefit societies. It protects all the personal property, however large, that may come to her intestate, and all real property, however large, that she may receive in the same way. There is a strange anomaly here, however, because where the property does not come intestate—that is to say, if it is bequeathed to her—then the husband gets all except £200 personalty. This is a strange anomaly, for which I cannot account.

  1407
  Under the Act to which I refer a married woman can insure her own life or can insure her husband's life for her own benefit; she can maintain actions at law, and exercise all the rights of property. Further than this, under the English Act a husband is no longer liable for his wife's debts except to such an extent as he may have received property from her. That is one of the provisions I have introduced into the Bill. The other provisions I will briefly describe. After the passing of the Act women are to have a separate estate in their movable property, and the rents arising from real property are also kept separate. Marriages contracted before the passing of the Act are to be exempt from its provisions, except with regard to property vesting after the Act passed. There is, however, a provision that in the case of marriages before the passing of the Act, married people may come under the Act voluntarily on giving a certain notice and sufficiently guarding the rights of creditors. The 5th clause arranges for the protection of the earnings of married women, and is very much as in the English law; and the 6th provides that upon the wife's death the rights of the husband and the rights of the children shall be the same in regard to the separate estate of the wife as they would have been if the estate had not been taken away from the husband. The husband will no longer be liable for the ante-nuptial debts of his wife, except so far as he has received property from her. The wife's estate will be liable to household expenses, but there will be no interference with ante-nuptial contracts; and the real effect will be to give to those who are so imprudent as to marry without ante-nuptial contracts, something of the same protection as if such contracts had been made. If, therefore, a rich girl runs away, and gets into the hands of a man whom her friends consider dangerous, they may exercise their influence over her to get her to create a separate trust, which she will have power to do, and in that way they would save her property from the husband. The Bill will also save the property of those people who are of a class who, from not having property at the time of marriage, do not usually have ante-nuptial contracts, but who afterwards may become possessed of property. More than all, however, it will protect
  1408
  those wives who belong to that class who never have ante-nuptial contracts at all—the poor or earning classes. It is, however, only right that they should receive the protection which the Bill will give them for such earnings as they may be able to make. In short, the Bill gives nothing to any woman that her parents might not have given her by an ante-nuptial contract. I have no doubt every hon. Member of the House when one of his daughters marries, takes care that she has an ante-uuptial contract, and what are these made for. They are made only in order to escape from the present state of the law, and I maintain that this is an absolute and conclusive proof that the present state of the law is bad and intolerable. I think we are shut up to the conclusion that it really is bad. If it is not bad, why do we all try to escape from it? We ought to prevent people from entering into ante-nuptial contracts, because if the existing state of the law is good, we ought not to allow it to be evaded. As we seem shut up to that conclusion, I hope this Bill may be permitted to pass its second reading without any opposition at all. In case any Amendments are proposed in Committee, I shall, of course, be glad to take them into consideration; but I trust the House will now endorse the principle of the measure by reading it a second time.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Anderson.)
  MR. MONTGOMERIEsaid, he was unable to assent to the proposal that the Bill should be read a second time without any opposition. The Bill entirely altered the relations between husband and wife in Scotland, where married women possessed rights which were wholly unknown to the law of England. The wife in Scotland had a share during and after the life of the husband to the goods in common; and in regard to heritable property she also had her rights. When she married, her husband, it was true, had the administration of her property; but, after her decease, her next-of-kin, whether they were her children or not, received her share of the goods in communion, and on her husband's death she had a right to

  1409
  one-third of the property in life-rent which he had held during his life. Her identity was not sunk, as in England, in that of her husband. He objected to making a woman entirely independent of her husband. By the 1st section of the Bill the husband's jus mariti was wholly taken away as to moveables. Although there were bad husbands, they were happily the exception; but under this measure husbands would in no case have the right of administering the estates of their wives. He could conceive nothing more likely to create disagreements in a family than a divided empire in which the husband on the one side spent his property as he pleased, and the wife on the other side spent hers as she pleased. Again, the 8th clause made the wife's personal estate liable for domestic expenditure—which was not defined—however incurred; but the first responsibility for those debts was thrown on the husband's estate, and it was only in so far as that might be insufficient to satisfy them that the wife's estate came under liability. The best clause was the 5th for protecting the earnings of married women; and if it was fairly worked out there would be little objection to the measure, provided the other clauses wore so modified as to leave the husband that administration of the property in common to which he was at present entitled, and which was advantageous to the good government of any family. He admitted, however, the necessity of making some alteration in the existing law. There were bad wives as well as bad husbands, and he did not wish to give bad wives the same power that bad husbands possessed at present. Unless the Bill were to be greatly modified, he should deem it his duty to vote against the second reading.
  MR. M'LARENsaid, that as the hon. and learned Member for North Ayrshire (Mr. Montgomerie) had admitted that some change in the law was required, it was not necessary to go into the alleged defects of the Bill at the present stage. The hon. and learned Member, while conceding that changes ought to be made in the law, contended that great changes ought also to be made in the Bill. The latter, however, was a question for consideration in Committee, and if the Bill should reach that stage, his hon. Friend the Member for Glasgow (Mr. Anderson) would be willing to
  1410
  adopt any reasonable Amendments the Lord Advocate might suggest. It had been admitted that bad husbands were happily few; but laws were made for wrongdoers and not for honest men. If there were husbands who abused the property of their wives, a law ought to be passed to remedy the evil. In Scotland, a woman, on the death of her husband who died intestate, was entitled to one-third of the moveable property, and to one-third of the rents of the real property. No will could deprive her of this right. In that respect his countrywomen had the advantage of their English sisters. It was not right to say that if a woman had brought a large fortune to her husband she should not be entitled to take away more than one-third of property that had been her own? Why should her husband's family have a right to take two-thirds? He thought the principles of the Bill were most just. and as there seemed a general agreement that the law of Scotland should be assimilated to that of England on certain less important matters, he should support the second reading of the Bill. Of course he reserved to himself the right to consider Amendments in Committee; but he did not think it would be wise to take up the time of the House by going into a long discussion of the Bill on the present occasion.
  MR. ORR EWINGwas understood to say that the Bill had been facetiously described as a measure for taking the breeks off the man and putting them on the woman. The Bill was not quite so radical as all that. What his hon. Friend the Member for Glasgow wished to do was to make the presumption of the law the same as if there had been an ante-nuptial contract. This Bill would give power to a woman, if her husband misconducted himself, to have possession of the property which belonged to her. The Bill might be so modified in Committee as to be made a practical and useful measure, and he trusted the Government would consent to the second reading.
  MR. GRANT DUFFsaid, no doubt it would be possible to amend the Bill in Committee, so as to make it a good Bill; but he thought his hon. Friend the Member for Glasgow (Mr. Anderson) and the other hon. Gentlemen whose names were on the back of the Bill would have exercised a wiser discretion

  1411
  if they had brought in the Bill in a form which all hon. Members could unreservedly support. The Bill in its present form he could not unreservedly support, because it would make the law of Scotland very different from that of England as it was settled in 1870. He granted the hon. Gentleman's contention that the law of England, as settled in 1870, was not exactly what we could wish it to be. That he most fully admitted; but he thought that the passing of a law with regard to Scotland, which should be in some respects a better law than the law of England, would be less advantageous than assimilating the two laws at the present time and amending both. Therefore, he should not be inclined to support the second reading of the Bill, unless he understood from Her Majesty's Government that they would only support it upon the understanding that it was to be so altered in Committee as to make the Scotch law correspond with the English law. When the laws of the two countries as regarded married women's property were made the same, a Bill might be brought in for amending both the laws; but it was undesirable to introduce greater confusion in the laws of the two countries by passing this measure as it stood.
  MR. MARK STEWARTthought the arguments advanced by the hon. Member for the Elgin Burghs were worthy of attention. No one could deny that in Scotland great hardships were oftentimes inflicted on married women by the existing law. It would be easy to give many illustrations of this, and to make a long statement on the subject. The hardship was more frequently incurred in the case of persons who had not the means or the opportunity of having lengthy marriage contracts drawn up before marriage, and therefore such persons required some protection. It might be possible to amend the present Bill in Committee of the Whole House; but his opinion was that it would be better to refer it to the consideration of a Select Committee.
  SIR EDWARD COLEBROOKEthought they were deeply indebted to his hon. Friend the Member for Glasgow for bringing this Bill to the extent at least to which it went in the direction of assimilating the law of Scotland to that of England. They were not bound to tie themselves down by too strict a
  1412
  line, because it must appear to many that there were circumstances in the case which required separate consideration. The law of Scotland differed from that of England, and when they made any alteration they were bound to consider to what extent the interests of the people of Scotland required a different treatment. One point alluded to by the hon. Member for Ayrshire was as to the rights of wives to the personal property of their husbands. He (Sir Edward Colebrooke) was under the impression that the law did already give them that right; and if it was not so, he thought it time it should be amended. A wife might not have contributed in any degree to the property during her husband's lifetime, and yet she and her relatives shared it on his death. This required to be remedied. He objected entirely to that part of the Bill which went beyond the law of England, which denied the claims of a wife until other claims were satisfied. If there was not to be joint-stock, let them be separately liable, and do not let the wife fall back on the husband's property. There were spending wives as well as spending husbands, and separation of interest ought to be an offence against the law. He would only say, in support of the suggestions of another hon. Member, that this was a Bill that might fairly go to a Select Committee. If so many points as had been referred to in that debate were to be brought before a Committee of the Whole House, he thought his hon. Friend had little chance of carrying his Bill through; but if it was sent to a Select Committee it might be put into a form that would enable it to pass this Session.
  MR. WHEELHOUSE: Perhaps the House will permit me to make a few observations on this subject from that which may be denominated an English lawyer's standpoint. So far as the law of both countries is concerned, that of England, however satisfactory to Englishmen, may undoubtedly be improved. I do not say that it is not right that the Scotch should have some of the powers they possess; but what I wish to provide for is, that in dealing with the civil rights of both countries, appertaining to married persons, there should be one general practice—or, at any rate, one general idea—for the whole, so that England and Scotland may be brought much closer in

  1413
  accord than they are at this moment. Certain I am that I speak my own heartfelt sentiments, and I have every reason to believe that I also express those of a very large number of other people, when I state to the House that I, individually, have often felt great pain—pain, I am sure, shared by all sensible persons—when we have seen the scandal, or something very closely approximating to the scandal, that a person should be legitimate by the law of the one country, and become illegitimate immediately that he crosses the Border. And this, considering the question in its merely personal aspect, but how much more intensified is the practical evil, whenever questions of succession or inheritance arise—as they must constantly do—out of such a state of things? Let us by all means endeavour to obtain an assimilation of the law of one country to that of the other, if possible, and I cannot but think and hope that this object may be satisfactorily gained. No one can doubt that there are clauses in the proposed Bill, for example, the 5th and the 8th, which are absolutely necessary. It is not only right, but it is fair, just, and equitable that where the wife is compelled, by force of domestic circumstances, to become the bread-winner of the family that she should be entitled to take care of her own earnings; but while admitting this, I must confess that I should think it very injudicious indeed to give a married woman sole control over all her property, and by so doing to make her, practically, independent of her husband in every sense of the word, especially seeing that the effect of this Bill as it now stands, should it become law, would be to entitle the married woman to insist upon the husband providing out of, and it may be entirely exhausting any resources strictly his own for the conjoint wants and requirements of his wife and family, and indeed his whole domestic mènage, before he could make any property of the lady's available for that end, even if he could ever put a finger upon it, which under the proposed legislation I see much reason to doubt. I know quite well that such a state of matters would not be tolerated in this country for a moment, and, therefore, I think it unwise to go so far as this Bill does, to promote such a condition of things in Scotland. On
  1414
  the other hand, if we can only so assimilate the marriage law of both countries as to remove inequalities and anomalies on the one side or the other, it will unquestionably be a step in the right direction.
  THE LORD ADVOCATE: Sir, in reference to this Bill, I desire to say, first of all, that I am of opinion that some alteration ought to be made on the law of Scotland with regard to the estate of a wife; and in the second place, that any alteration so made should be on the lines of the English measure of 1870. With reference to the Bill now before the House—I should certainly not have dreamt of opposing any Bill brought into this House with a view of effecting a change in the law of that character; but if it had not been for the explanations given by those who have brought in the present measure and those who have supported it in this debate, who have frankly stated that they do not intend to press the Bill to the extreme point that it reaches, I should have been disposed to ask the opinion of the House as to reading the Bill a second time. But after the expressions of opinion which have found utterance from one side of the House and the qualified approval expressed on the other, I do not conceive it would be proper to offer opposition to the measure being read a second time. At the same time the House will allow me to make one or two observations as to the amendment of the law of Scotland, and as to the manner in which this very delicate and intricate subject should be approached. I do not refer to what appeared to me to be the somewhat strained advocacy of the hon. Member for Glasgow (Mr.Anderson), founded upon the supposed frequency of the abduction, or something like that, of rich heiresses by penniless gentlemen, who afterwards spend their fortunes. I doubt whether that evil prevails to any great extent in Scotland, or that there is any feeling in respect to property rights which would induce married women to feel themselves in the position of criminals or lunatics, or that anyone entering into matrimonial relations incurs in the slightest degree the charge of insanity. It is necessary in reviewing the relation of spouses in Scotland, and the obligations that are intimately connected with them, to see which of them do and which do not exist in the law of England. Whenever there is no marriage

  1415
  contract in England the husband can leave his wife penniless and disinherit his family. In Scotland, if the husband has a fortune, his wife takes by law a certain portion of it—the husband by his marriage comes under the obligation at common law to leave his wife one-half of his moveable estate if there be no children, and one-third if there be issue of the marriage. This obligation rests upon him, and in order to enable him to perform it, he is allowed to a great extent to obtain control over his wife's estate. I should be sorry to approach any alteration in this state of the law from the point of view suggested by my hon. Friend the senior Member for Edinburgh (Mr. M'Laren). I cannot regard the change of law in this respect as intended solely to counteract the designs of bad husbands. On the contrary, it has appeared to me that you will get a great many cases of no marriage contract where both spouses were perfectly well behaved to each other and under no imputation, and men must be provided for by a rule of common law. Those who are familiar with the law are perfectly aware of that circumstance; and it rather occurs to me that the proper principle to legislate upon in this case is to make a fair and equitable disposition of the property between the spouses and the children in cases where there is no contract. There are bad fathers as well as bad husbands, and it is desirable that certain rules should exist for the apportionment of an estate in the event of a will not being made. I wish to point out what the effect of this Bill will be—and that may be summed up in a single sentence. It gives to a married woman the same control over her estate after marriage as she had before, and gives no mere control to the husband. He has not even control over his wife; and any designing person who gets control over the wife may divert her property from her husband and family to himself. In that case it would subvert the ordinary relations of man and wife. It would create an Empress and a slave, instead of an Emperor and a slave, as is said to exist at present. The Bill would deprive the husband of all control over his wife's expenditure, and would give to the wife the power—which he hoped none but bad wives would exercise—of incurring any amount of domestic expense, which
  1416
  the husband's estate would be liable for in the first instance; while her estate would not be liable except there was a proved deficiency in her husband's estate to meet the debts. Even then the lady has the best of it, because the husband must pay in the first instance, and his estate might be exhausted before a penny of the lady's could be touched; and the husband might be sent to prison, while the wife would be exempt from personal diligence. I have ventured to refer to one or two matters, but I wish to be understood that I have not referred to them for the purpose of opposing the second reading of the Bill, but because I wish to make it perfectly understood that the Government gives its assent on the understanding that the Bill is substantially to be on the lines of the English Bill, and that we are not to discuss these extreme questions which have been alluded to to-day. With regard to the Committee on the Bill, I may state that I have been in communication with the hon. Gentleman who moved the second reading, and I am glad to say that he concurs with me in thinking that the Committee should not be taken until such time as the legal bodies of Scotland, who are greatly interested in the matter, and are possessed of much better information in regard to the practical working of the present system than we can have, have had an opportunity of considering this Bill, and favouring us with their opinions.
  SIR GEORGE CAMPBELLsaid, he came down to the House to-night prepared to vote against the Bill, and he must confess that he was rather sorry he should not have an opportunity of doing so. It did seem to him that the learned Lord Advocate had given excellent reasons why the Bill should not be accepted by the House. He thought that if this Bill was to pass it would simply amount to this—that marriage would be reduced to men and women "chumming" together without any community of goods or community of interests. He had seen a good deal of the operation of a law of that kind, for the law which it was now proposed to introduce into Scotland was simply the Mohammedan law. According to the Mohammedan law, a woman after marriage occupied exactly the same position as if she were single. He had seen the operation of that law in India, and

  1417
  he was bound to say that it worked very ill. Marriage was simply a civil contract according to Mohammedan law. Husband and wife were constantly squabbling and constantly going to law It followed almost of necessity that Mohammedan law afforded facilities for dissolving marriages; because if a man was bound to live with a woman under these conditions, the man would rebel, and would naturally insist that, as other contracts wore dissolved at will, marriage should also be dissolved in the same manner. He was altogether opposed to this Bill as it stood at present, but he thought, after what the learned Lord Advocate had said, it was in safe and good hands, and if Her Majesty's Government thought fit to give a second reading to the measure, he should not take it on himself to oppose it.
  MR. SHAW LEFEVREsaid, it appeared to him that the arguments which had been used against this measure would apply equally to the Act of 1870. The Act of 1870 gave security to married women for their earnings;—in fact, it appeared to be carried to a greater extent than was anticipated when the Act was passed, because he observed in a case before the Law Courts the other day it was decided that a married woman was entitled to keep a racehorse separate from her husband, and to have the earnings of that racehorse for her separate use. As regarded separate property other than the earnings of a married woman, the Act of 1870 was in a very confused and complicated state. For instance, if property came to a married woman by descent, then it became hers absolutely for her separate use; but if property was left to her by will under her name as a married woman, then it went to the husband, unless the will provided that the property should be for her separate use. He ventured to say that the Act of 1870 was an incomplete measure, and that it would be very unwise to tie themselves down to its exact words. He presumed his hon. Friend the Member for Glasgow felt that in extending the provisions of the Act of 1870 to Scotland it would be reasonable to review that Act, and see whether they might not go beyond that Act and secure a greater meed of justice to the married women of Scotland. He ventured to suggest that the Bill should be read a second time and referred to a Select
  1418
  Committee — that Committee to take into consideration the present state of the law of Scotland, and how far it would be wise to go beyond the Act of 1870.
  MR. RAIKESsaid, he could not understand the argument of his hon. Friend opposite (Mr. Shaw Lefevre), inasmuch as the hon. Gentleman was one of the original promoters of this class of legislation in the House. He wished to point out that the Bill of 1870 was a very different thing to the Act of 1870. The Bill as first introduced was a Bill very much on the lines of the present Bill. The original Bill consisted of 25 clauses, of which 22 were rejected—so that the Government in consenting to the second reading of the present Bill did not commit themselves to so entire a revolution in matrimonial relations as the hon. Member for Glasgow contemplated. The only clauses of the present Bill which corresponded with the Act of 1870 were the 5th, 7th, and 8th. He trusted the House would remember what the learned Lord Advocate had already stated—namely, that in assenting to the second reading of the Bill the Government were not in any way pledging themselves to the adoption of the measure in its present shape, because if it was insisted that the Government were to pledge themselves, he should be inclined to vote against the second reading. He understood, however, there was no such intention, and that they were merely proposing on the present occasion to endeavour to remedy the state of things in Scotland according to the lines of the Act of 1870.
  MR. ANDERSONsaid, as there was no opposition to the second reading of this measure, he had no right to reply; but he hoped the House would allow him to say that if the hon. Chairman of Committees (Mr. Raikes) proposed to eliminate 22 clauses out of his Bill of 10 clauses, he thought it would be a very difficult matter. He certainly was not disposed to fight for extreme measures; but surely, when there were such bad provisions in the Act of 1870 as had been alluded to in the debate, it was admissible to amend them in bringing in a Bill for Scotland.
  MR. ASSHETON CROSS: I should not have risen, Sir, if it had not been for the observations which fell from the hon. Member for Reading (Mr. Shaw

  1419
  Lefevre). The hon. Member wants in Committee to go beyond the Act of 1870; and I can only say that it is utterly against the understanding which we have come to. To such a proposal as that I am prepared to give my opposition.
  MR. SHAW LEFEVREsaid, he only suggested that the Committee should inquire whether it was desirable to go beyond the Act of 1870.
  MR. ASSHETON CROSS: I am not prepared to go beyond that Act, and that is the understanding which has been arrived at. I do not think that the country would for one moment assent to such a measure as that now before the House—at least in its present shape. My opinion is that it would not be wise to loosen the marriage tie in any possible way, or to make such absolutely separate interests between husband and wife as would be likely to lead to such a result. I do not want to enter into the debate, but after what fell from the hon. Gentleman opposite, I thought it my duty that I should enter my most firm protest against what he has said.
  Question put, and agreed to.
  Bill read a second time, and committed for Tuesday 15th May.

  PUBLIC WORKS LOANS (IRELAND) BILL.
  Resolutions [April 17] reported, and agreed to:— Bill ordered to be brought in by Mr. RAIKES, Sir MICHAEL HICKS-BEACH, and Mr. ATTORNEY GENERAL for IRELAND.
  Bill presented, and read the first time. [Bill 139.]

  EXECUTORS (SCOTLAND) BILL.
  On Motion of Mr. JAMES BARCLAY, Bill to amend the Law relating to the confirmation liabilities, and powers of Gratuitous Executors in Scotland, ordered to be brought in by Mr. JAMES BARCLAY, Mr. ANDERSON, and Mr. MACKINTOSH.
  Bill presented, and read the first time. [Bill 140.]
  House adjourned at five minutes before Six o'clock.