HC Deb 18 April 1877 vol 233 cc1404-19

Order for Recond Reading read.


, 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- 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 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.

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 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.)


said, 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 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.


said, 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 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.


was 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.


said, 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 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.


thought 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.


thought 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 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.


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 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 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.


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 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 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.


said, 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 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.


said, 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 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.


said, 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.


said, 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.


I should not have risen, Sir, if it had not been for the observations which fell from the hon. Member for Reading (Mr. Shaw 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.


said, he only suggested that the Committee should inquire whether it was desirable to go beyond the Act of 1870.


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.