HC Deb 09 June 1880 vol 252 cc1533-45

Order for Second Reading read.

MR. HINDE PALMER,

in rising to move that the Bill be now read a second time, said, that in 1873 a Bill precisely the same as that to which he was now asking the House to assent was conducted by himself through the Committee of the House; but it was so near the end of the Session that he found it impossible to proceed further that year. There was one reason why the subject has been so long postponed in settlement. Domestic questions were not brought forward in the last Parliament with the freedom that this Parliament might be expected to show. There could be no doubt the present state of the law with regard to the property of married women required prompt amendment. The Common Law of the country declared that, immediately a woman married, all her personal estate vested in her husband, who might dispose of it as he pleased. That had been said very truly to be in the nature of confiscation of the wife's property simply by the act of marriage. It was only necessary to state such a law as that in order to mitigate it, and accordingly the Courts of Equity set about invading it as soon as they could; and it had accordingly been the doctrine of that branch of the judicature that the property of married women might by settlement be secured for their separate use. The injustice of the present Common Law was chiefly felt by poor married women whose earnings were wasted by drunken and dissolute husbands; but its injustice was not entirely confined to the poorer classes, for where no marriage settlement was made a wife's property was still confiscated by the husband. In 1869 a Bill was passed through this House to amend this state of things; but it went so late to the House of Lords that it was lost. In 1870 the Bill was re-introduced, and was referred to a Select Committee. It came out of the Committee in a very useful condition; but in the House of Lords most of the good provisions in it were omitted, and it was confined almost solely to the earnings of married women. The alterations made in the measure also rendered it very difficult for people in the humbler walks of life to avail themselves of its provisions. Russell Gurney's Act originally contained a clause which he had inserted in the present Bill. It was— That a married woman shall be capable of acquiring, holding, alienating, and bequeathing her property, and of contracting, suing, and being sued, as if she were unmarried. This provision, he held, embraced the whole justice of the case, and in consequence of its omission from the Act of 1870 that Act required amendment. One of the inconsistencies of Russell Gurney's Act, as altered in this House of Lords, was that a husband was freed by it from all liability for his wife's ante nuptial debts, though he still acquired her property by the act of marriage, the consequence being that the creditors of the wife were left without a remedy. A second Bill was subsequently passed dealing with that part of the question of married women's property, and one of the objects he had in view was the consolidation of the two Acts and their amendment. He might point out that our Common Law on the subject to which he was drawing attention was quite unique. Even in the United States, where the law was originally the same as ours, a radical change had been introduced. But it had been found that, even under the Act of 1870, married women could not be protected in the enjoyment of their earnings, although the protection of the proceeds of a woman's industry was the special object of the measure. For instance, there was a case in Manchester where a man had stolen his wife's property, and the stipendiary magistrate dismissed the prosecution because the Act did not authorize proceedings by the wife against the husband, although the Act expressly gave her all remedies, both civil and criminal, against all persons whomsoever. One would have supposed that the law had been altered to admit of a prosecution; but such was the decision, and the law had remained in this condition ever since. In his measure a remedy was provided for the protection of women in these circumstances. But not only did the measure give protection in this way; it was intended to place women in the same position towards tradesmen with whom they had dealings as men were. The tradesman would have the right to inquire into the credit of the person who gave the order for the goods and her ability to pay for them. It was his belief, he might add, that if the change which he proposed was made married women would very soon begin to pay out of their separate estates the debts which they might contract. Lord Penzance, as many hon. Members were aware, had urged several objections against the adoption of the principle for which he was contending; but he did not think the experience of that noble and learned Lord, as President of the Court of Divorce, was of such a nature as to make him an impartial judge on the subject. The first objection taken by Lord Penzance was that if women were to become entitled to their separate estate they would be able to spend it as they pleased without the consent of their husbands, or, in other words, waste it. That was an objection which, however, in his opinion, applied with equal force to the case of the husband, for there were cases, involving great hardship, in which the husband having, under the operation of the Common Law, acquired the property of the wife, had spent every farthing of it, as well as his own, sometimes in keeping up another establishment and another family. Under the Bill husband and wife would come to an arrangement, and it would only be in extreme cases that resort would be had to the protective clauses. Then it had been said that the Bill would cause family dissensions; but marriage settlements had not done that, and he did not believe that the settlements made by the law would have a worse effect. Another objection urged against the Bill was that it would enable a wife to sue her husband; but even as the law now stood she could do so through the medium of the Court of Chancery, while as to the objection that she might enter into trade and even carry on a rival shop to that of her husband, he might remark that it had been for years the practice to secure to married women the earnings which they might acquire by carrying on a separate business. But it was not, he maintained, a proper state of the law which permitted that she might be put to so much expense as she might now be obliged to incur in establishing her right to those earnings; and married women, although they might sue in certain cases, could not be sued, and were, therefore, under a disadvantage in entering into contracts with wholesale tradesmen for the supply of goods. He would only add that, believing the Bill would tend to the advantage, not only of married women, but of tradesmen and society generally, he moved the second reading with confidence that it would meet with a favourable reception from the House.

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

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, he did not expect he should have to rise so early to state the views of the Government on this Bill. He did not on the part of the Government propose to offer any opposition to the second reading of the Bill, nor did he propose to offer any opposition to its principles. There were, however, some objections to its clauses which he wished to bring under the notice of those who had charge of the Bill, in the hope that they might be able to see their way to remove them. The great principle of the Bill—the right of married women to enjoy property which had come to them in their own right—was acknowledged by that House when it passed the Bill of 1869. True, that principle was rejected by the House of Lords; but unless the views of the House of Commons had greatly changed, they could not hesitate to acquiesce in this principle. The principle should be looked at favourably, not only with reference to what the House of Commons had formerly done, but on its merits. He could not help feeling that as the feudal times became more remote the disposition to allow greater liberty to women, at least in dealing with their own property, had gone on increasing; nor did he for a moment mean to contend that some concession should not be made to that growth of opinion. The Bill, at the same time, it must be borne in mind, would effect a great revolution in matters not merely within but outside the household of every married man, and some of it provisions went, perhaps, somewhat further than even his hon. and learned Friend intended. In the 1st clause the principle would be found that a married woman should hold, acquire, and deal with all real and personal estate which was her own property. That, of course, gave her the full control of the property coming to her as if she were a femme sole. There was, however, no limitation to her powers to contract. She was allowed to contract not merely in reference to her own property, but generally. She might, for example, become the tenant of a house; and although he did not wish to refer for a moment to the political aspect of the question—for that was a subject which, in his opinion, ought to be kept apart from the Bill—he thought she must in those circumstances be regarded as liable to pay rates, because it was evident that the husband might have no money for the purpose. It was clear that, in enabling a woman to enter into a contract independent of her husband, it was proposed to make a change which required very serious consideration; and he would suggest to his hon. and learned Friend that, in conferring upon her such a power in relation to business matters, it would be necessary to impose upon her the burden of being liable to be made bankrupt. The Bill, by the 3rd clause, also provided that any property which came to a woman already married should be absolutely at her disposal. But, supposing the case of a marriage made with a full knowledge of the existing law and where there was no settlement, the husband undertaking to do everything for her until the coming in of his wife's reversion. He might have performed his part of the bargain, but this Bill would enable her to escape performing hers. In one or two respects the other clauses were too wide in their sweep. As to the power to be given to husband or wife to sue the other, he did not think that was a pleasant prospect. Costs would follow the event, and have to be paid one to the other. He hesitated to consent to see them entering into litigation, one with the other, in regard to matters that occurred during their domestic life. But these criticisms did not touch the principle of the Bill. He felt that this Bill would make a great change in the domestic institutions of the country, but these changes would come gradually into effect. If the second reading took place, those who supported the Bill would not be binding themselves to every word or every clause in the measure; but, so far as he was speaking on behalf of the Government, they would say "Aye" to the Motion.

MR. WARTON

said, he was glad to hear the views which he himself entertained with respect to the Bill so clearly expressed by the last speaker, who, it was evident, was of opinion that one result of its passing in its present shape must be the increase of domestic infelicity, and that it was in many respects a foolish measure. Yet the hon. and learned Gentleman did not hesitate to accept the principle of the Bill. He supposed some hon. Members present knew something about the real relationship between husband and wife, and he would certainly ask those who did not to pause and consider before they made any offer of marriage. If this Bill were passed they had better withdraw in time, and not subject themselves to enactments which would lead to domestic infelicity. The Bill tried to create a monstrosity never intended by God—a married woman separate from her husband. Before the existence of the feudal law—in fact, when marriage was established by God—it was ordained that wives should obey their husbands, although some of them, he was sorry to say, were not so obedient as they ought to be. Moreover, by the Criminal Law a wife was entitled to plead in her own defence that she had acted under the coercion of her husband; and he would like to point out to the hon. and learned Gentleman that if the Bill were to pass, it might very well happen that a wife having real estate to her separate use might take a house, in which her husband might become her tenant, and that she might actually give him notice to quit. That would be an ignominious position in which to put a husband whose wife was bound to reverence and obey him. Under such a Bill as this every gossip in a village might slander a man or woman without the husband being liable. The only way now to prevent some wives using their tongues too freely was to hold their husbands liable for the slander. The question involved in the discussion was the great legal question, "Who was the head of the house —the woman or the husband?" At Census time one woman in a hundred would, perhaps, say to the enumerator—"I am the head of the house;" and this Bill was a measure to carry out certain notions of women who rebelled againt the law of God that they should be subservient to man. The hon. and learned Gentleman (the Attorney General) had, he was glad to find, steered clear of the political question. In the present state of that House, he did not see that it would be of any avail to oppose the second reading; but he trusted that when the Bill got into Committee it would be very considerably modified, so as less injuriously to affect the existing relations between husband and wife than it did.

MR. MORGAN LLOYD

assented cordially to the second reading, with the reservation that the Bill ought to be considerably amended in Committee. There should be protection given by law to every married woman such as was given by settlement; but this Bill went a great deal further, for it proposed not simply to secure to the wife the control of any property belonging to her before marriage, or that might become hers afterwards, but it placed her in the position of an unmarried woman, with some very limited exceptions. He doubted whether that would be for the benefit of the women of this country. It was proposed that a married woman should have the right to enter into any contract in the same way as if she were unmarried. If her right to contract were limited to contracts binding her separate property both at law and in equity, he should agree to that alteration of the law; but the Bill would not only enable her to contract to such an extent as to swallow up all her own property, but it would practically have the effect of giving her power to render the husband liable for all her debts to a greater extent than he was at present. It was true he would not be legally liable for her debts, but a moral pressure would be brought to bear upon him which would have much the same practical effect. If a husband found that his wife was made a bankrupt, and was liable to be sent to prison, he would, if a right-minded man, pay her debts, and eases might be easily conceived where great injury and injustice might thus be inflicted upon him. Now, surely that was an unfair position in which to place the husband. Then, again, the right proposed to be conferred upon wives of suing husbands, would probably tend to a great deal of domestic litigation and unhappiness. Men would take care before marriage to protect themselves against their wives, and so the marriage bond would be weakened—a result which would be unfortunate for both parties. There was, however, a good principle in the Bill, which he should not be sorry to see the House affirm by the second reading. He thought that women ought to have greater control over their own property than they now possessed, and hoped that the Bill would be amended in Committee so as to confer that power upon them unaccompanied by the objectionable features which he had pointed out.

MR. HINDE PALMER

asked permission to state at this stage that he would be happy to make in Committee any concessions reasonably within the principle of the Bill, his only object being to make it a good and intelligible Bill.

MR. MUNTZ

said, he had been very glad to hear the remarks just made by the Mover of the Bill, as he should be sorry to see the measure passed without certain alterations, although he had no wish to oppose the second reading. He would, first of all, like to see a clause requiring that, in all instances where property should be left to a woman, she should have the power of ordering executors to pay the legacy to trustees, so that it should not be allowed to come into her hands. That would be a great security; because his experience of life, which had not been a short one, was that when a woman inherited property, in nine cases out of ten, by kissing or kicking, the husband was sure to get hold of it. If there was a clause providing that the property should pass directly to the hands of the trustees, there would be a great safeguard for its security. There was also a clause which had apparently been forgotten, but which appeared in the former Bill, and which would prevent that which had been, to some extent, avoided in the United States of America, but which occurred in several States of Europe —the system of defrauding creditors by a wife, in such an instance as that of joint trading by the husband and wife. The wife put her money into the husband's hands, they went jointly into wild speculations in all kinds of trades, and when they failed, under the Justinian Code the wife claimed priority, and was paid every shilling of the money she had invested before the creditors could obtain a farthing. In the system in America, however, the woman came in as a creditor only. A clause should be, therefore, introduced into the Bill to prevent such a fraud occurring. With these precautions, however, the Bill might be practicable. He was very much of opinion that the property would be safer in the hands of trustees than in the hands of the women themselves, as there was no doubt that in most of the speculations which failed spinsters, widows, and poor country clergymen were the victims. Women should not be allowed power to embark their property in such speculations, and so ruin themselves, which every sensible man knew there was the greatest risk of their doing. He wished, for the sake of the women themselves, for the safety of the Bill, and from his experience as a trustee, that the property of a woman should be placed in the hands of trustees, where it would be safe. Public opinion seemed now to be decided as to the need of the Bill; but he trusted, if it was not referred to a Select Committee, that the Committee of the House would take care to protect women against their own folly.

MR. HASTINGS

said, for many years he had taken. great interest in the question, and was, therefore, glad to see the second reading had been supported by the Attorney General. The idea generally entertained, that this Bill and other measures founded on the same principle were opposed to the ancient law of this country, was unfounded. On the contrary, he believed that this Bill, like the Act of 1870, was in some degree a return to the ancient law. In feudal times the law was singularly just to married women. The property of the wealthier classes then consisted almost entirely of land, and no woman was called on to give up her land when she married. She remained joint tenant with her husband. As personal property increased in value, the Court of Chancery took care, by marriage settlements and trusts, to secure their personal property to all women who could pay for the settlements and for the luxury of applying to the Court of Chancery. The object of the present Bill was to place women of the lower class in the same position as those who could afford to have settlements. Of the hardships to which poor women were subjected through the cruelty and rapacity of their husbands he, as a magistrate, had long seen striking proofs, and he was glad that some relief to that class was at length about to be afforded. All the evils apprehended from the present Bill really existed under the law as it now stood. In the City of London a married woman might carry on a separate business as a trader, and the Recorder of London said a woman might trade on her own separate account, and might be made a bankrupt, so that it was only sought by the Bill to put in force over the whole of England what had long been the ancient custom of the City of London. Husbands and wives could also sue each other in Courts of Equity, and, in fact, whatever ground the equalization of husbands and wives in regard to property might afford for domestic disputes existed under the present law. In his opinion, the law of God, which an hon. Member had cited as giving the husband the right to rule over his wife, did not justify his appropriation of her property. He should give the Bill his most hearty support.

DR. COMMINS

said, he did not believe the Bill would have the good effect that was anticipated by its promoters. It was rather difficult to construct a workable Act of Parliament that halted between two principles. The Bill forsook the principle that upon marriage the personality of the wife was merged in that of the husband, and, instead of that, it seemed to adopt the one embodied in the phrase sometimes put in the mouth of a wife as addressed to her husband—"What's yours is mine, and what's mine is my own." It, to a large extent, abandoned the principle which gave the property of the wife to the husband; but it did not adopt the one that marriage should in no way alter the rights of a woman with respect to her property, The promoters of the Bill, while desiring to protect the wife from the extravagance and rapacity of the husband, seemed to forget that the husband also had rights, and, consequently, there was no provision to protect the husband from the extravagance or dishonesty of his wife. Those acquainted with the dealings of Courts in this country, particularly County Courts, would be aware of the fact that one of the most ordinary sources of litigation was the power the law gave to the wife to pledge the credit of her husband in the purchase of what were called necessaries. There being nothing to define what necessaries were, in every case it was left to the Judge or the Jury to decide upon that question, and the consequence was that frequently husbands of the poorer classes were subjected to the most vexatious litigations in consequence of the power which the law gave wives. If there was one thing more than another that was required it was some provision to protect the husbands of the poorer classes from the contracts their wives might enter into behind their backs. At the same time, means should also be taken to prevent husbands and wives from playing into each other's hands with a view to defrauding their creditors. He submitted this was a halting measure, and therefore an unworkable piece of legislation, and one that would do more harm than good.

MR. SHAW LEFEVRE,

as the Member responsible for the Bill of 1868, congratulated the House on the great change of opinion on this measure. He believed it would have been utterly impossible for such a Bill to have passed the second reading in the last Parliament, where the Home Secretary denounced it as a revolutionary measure. In this Parliament the principle was conceded, and there was not even opposition to the second reading. The details of the Bill under discussion were identical with that introduced in 1868, which was referred to a Select Committee and reported upon favourably as to the principle of the Bill. In the following year it was again introduced, and again referred to a Select Committee, one of the strongest that ever sat, and upon which were Chief Justice Coleridge, Baron Amphlett and Mr. Justice Lopes, Sir Russell Gurney and Mr. Lowe, and they agreed to the details of the measure with the single exception of Mr. Justice Lopes. The measure then went up to the House of Lords, where it was eventually taken up by Lord Cairns; and anyone who read his speech would see he was in favour of the principle of the measure, but was compelled for certain reasons to agree to considerable alterations, which reduced the condition of the Act which now appeared on the Statute Book of 1870. That Act had certainly given rise to an immense amount of litigation, but there was no more satisfactory Act on the Statute Book. It conceded the principle of the right of the wife to her separate property and to her earnings; and, as none of the evils which had been predicted had arisen, he thought the House would be justified in going further, and conceding the principle of this measure, which was that marriage was no longer to be regarded as an act of confiscation of the wife's property for the benefit of her husband, but that, in respect of that property, she should have the full right of property and of suing and being sued.

MR. GREGORY

almost regretted that the second reading of the Bill might be considered a foregone conclusion; for a Bill, so wide in its scope and extensive in its operations, should not be passed hurriedly. It would place a married woman exactly in the position of a husband with respect to her property, and she would be able to deal with it and trade with it without his control, while the husband would still continue liable for his wife's debts and liabilities beyond the extent of her property. But, in addition to this, what he doubted was the policy of separating the interests of husband and wife. He regretted that the Bill had that tendency, and that it did not sufficiently respect the rights of the husband.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, the husband was relieved except where the wife acted as his agent.

MR. GREGORY

said, the husband would have to pay for whatever could be brought under the denomination of "necessaries."

MR. WILLIS

said, that the hon. Member opposite was mistaken in saying that the law made the husband liable for his wife's debts. He was only liable for debts which were contracted by his express or implied consent. If a person married a woman he could, at the moment of marriage, say—"You shall not pledge my credit for one single thing, even for necessaries." Such a prohibition would protect the husband against any attempt of the wife to pledge her credit except in the case of her being-obliged to leave her home through the misconduct of the husband. He believed that the effect of the Bill would be very different from what the hon. Member apprehended, and that it would unite rather than dissociate the interests of man and wife. He fully approved of the change proposed to be made, for, in his opinion, no species of property, in consequence of the various rules of law applicable to it, was so much wasted in litigation as that which was intended to be protected by this measure. He wished that the Bill made some provision with respect to gifts of property from the wife to the husband, and the alienation of real property by a married woman. These matters, it seemed to him, should be carefully guarded, and he trusted the law would be extended in that direction.

Motion agreed to.

Bill read a second time, and committed for Tuesday next.