SECOND READING. (Hansard, 9 June 1880)

§ MR. ANDERSON,
in moving that the Bill be now read a second time, said, that, after the statement they had already had on the second reading of the English Bill, he did not think there would be any difficulty in assenting to the second reading of this Bill also, for the object of it was to do exactly for the property of married women in Scotland what the Bill that had been read a second time that afternoon had attempted to do for England. In bringing forward the Bill this Session, he desired to state that it was not exactly the Bill that he had brought in last Session. The Bill of last Session was intended to bring up the Scotch law to the level of the English; but it would be clearly absurd to bring up the Scotch law to the level of a law which Parliament was about to alter, as it had declared by adopting the principle of the Bill read to-day. There was every probability that the Bill would be passed this Session. Clearly, the course formerly followed would not be suited to the altered circumstances. He had, therefore, thought it more straightforward to bring up at once the Bill in a more complete form, so as to afford the very same degree of protection that the property of married women in England would have when the new Bill became law. The people of Scotland wore much worse off in this matter than the people of England. In England the property of married women had had protection since 1870 under Russell Gurney's Act, and that was what they had not enjoyed in Scotland. There really was no pro- 1549 tection there for the property of married women, except where women were deserted by their husbands, and except in the case of earnings, so far as these were protected by an Act passed in 1877. In no other way was there any protection except by ante-nuptial contract. Well, the mass of married women had not got an ante-nuptial contract; and what he wanted done was to make the presumption of law the same for a woman without an ante-nuptial settlement as if she had one. The Bill proposed to do nothing more than was now done every day by such ante-nuptial contracts. He supposed that every Member of that House, when he had one of his daughters married, took care to have her property so protected. As a matter of fact, poor people did not have ante-nuptial contracts, and did not think it necessary; but in many cases they acquired property after marriage, and all such property was in the hands of the husbands. Hence his proposal to set the law right on this important matter. He regretted that, in dealing with the question, they had not the advantage of the presence of the Lord Advocate, and he hoped that before long he would be in the House. As to any matters of detail in the clauses, these could be considered hereafter with the Government, and he trusted the House would assent to the second reading.

§ SIR EDWARD COLEBROOKE
cordially agreed with the general principle laid down by the hon. Member for Glasgow (Mr. Anderson), and that it was most important to assimilate the law of Scotland with that of England. From that point of view, he agreed in the attempt being made to alter the law. In last year's Bill there was some discussion on the question of assimilation, and on this occasion they had had the advantage of listening to the views put forward with regard to the English measure. At the same time, it would be well if such communication were made with the Scotch Law Officer as would put it on all fours with the English Bill. He wished to draw attention to a matter which should be kept in view in any changes of this kind which would alter the relations between husband and wife in many important 1550 particulars. While he cordially assented to the Bill, it must be borne in mind that the wife was relieved by the existing law from certain obligations which were undoubtedly thrown upon her husband for the support of his family. Now, where there was a joint concern there must either be complete liability on one or the other side, or such joint compromise as might easily be adjudicated upon. They could not give to the wife the same position as her husband with regard to earnings without imposing on her certain obligations. He thought this was generally admitted, and that a clause was proposed in the Bill to this effect, that the wife should be liable to the general support of the family. But if his hon. Friend would turn to the English Bill which had lately come under discussion, he would see that the clause which he had introduced did not stand on all fours with the English Bill. Whereas in the English Bill the husband was liable for the support of the family, it was in his hon. Friend's proposal, under the Proviso, that the husband should be liable in the first instance. Now, it was quite impossible for them to adjudicate between the two in the case of a creditor coming upon one or other; but husband and wife should be liable on equal terms. He did not see why the husband should be liable first. If the wife was liable as much as the husband, he did not see why she should not be equally liable in this respect. If they were going to legislate, it ought to be done on such a basis as would make the laws assimilate, and there should be no difficult question raised with regard to domicile and other matters. When the Scotch law was referred to, the Bill ought to be on the same principle; and if there was a fair prospect of the English Bill being passed, his hon. Friend should allow it to be completed before pushing his own measure to another stage.

MR. M'LAREN
said, his hon. Friend the Member for Glasgow (Mr. Anderson) was quite willing to adopt the suggestion made by the hon. Baronet the Member for Lanarkshire (Sir Edward Colebrooke) to allow the English Bill to go first through Committee, and then, as to whatever changes might take place in the English Bill, the Scotch Bill should be altered exactly in the same way as nearly as the technical phraseology of the two countries and their distinctive 1551 laws would permit. He hoped the Bill would be read a second time without a division, seeing that its object was the same as was contemplated by the English one. There would, then, be no difficulty in adopting the alterations made on the one Bill to the other in the same spirit.

§ MR. ARTHUR PEEL
said, no one regretted more than he did the unavoidable absence of the hon. and learned Lord Advocate; but he hoped the House would allow him to supply his hon. and learned Friend's place, and say a few words on the Bill. The hon. Member for Glasgow (Mr. Anderson) had introduced a measure on this subject last year, and it differed in some respects from the present one, for it went on the principle of assimilating the law of Scotland to that of England as nearly as possible. The present measure deviated in some of its clauses very materially from that measure. That deviation was especially remarkable in Clauses 1 and 2. As to Clause 1, that of last Session required the wife's money to be invested in some definite way in a separate definite investment, so that in case of dispute the particular property belonging to her could be identified. By that clause, a wife having a separate estate could have it identified without any trouble in case of dispute. The clause now introduced by the hon. Member for Glasgow, contained a very material deviation from the one formerly proposed. Then, again, in Clause 2, it might be very advisable to take away the jus mariti; but he understood that much more doubt attended the question of taking away the jus administrandi. It was very disputable whether the point should be dealt with in the manner proposed by the Bill. The measure of last year proceeded on the principle of assimilating the law of the two countries. The acceptance by the Attorney General of the second reading of the English Bill modified the objection which might be taken to the present measure on the ground of its discrepancy from the English law on the subject. It was desirable, as far as the circumstances of the two countries allowed and the state of the laws and customs would permit, that the laws should be assimilated as to the rights of married women. Under the circumstances, he would not object to the second reading; but he would point out that it was very de- 1552 sirable that the Bill should proceed pari passu with the English Bill, and that the law of both countries which dealt with the rights of married women should be put on the same footing.

§ MR. WEBSTER
regretted, with other hon. Members who had preceded him, the absence of the Lord Advocate, whose special experience in regard to the law in this matter would have made his opinion with respect to the measure of considerable importance. The House had waited to hear the opinion of the Government; and, although the Under Secretary had explained that opinion, he should have liked to have heard it from the Lord Advocate himself, at all events with regard to some points in the Bill which seemed to go beyond the principle stated by the hon. Member for Glasgow (Mr. Anderson). He did not intend to oppose the second reading; but there was one point which deserved notice—namely, the power in the Bill to do away with the right of administration of the husband. The Bill in several respects went very much beyond abolishing the jus mariti merely, and, without in the least wishing to detain the House by considering matters which were more strictly for consideration in Committee, he must mention one point upon which he should have been glad to have the Lord Advocate's opinion had he been present. The hon. Member for Glasgow, in moving the second reading, had stated that it was substantially the same as the Bill for England, which was brought in and read a second time just now, and that it was the same in substance as the measure which he formerly brought in, and which did not pass a second reading. Having heard the discussion on the English Bill, and having read that Bill, it appeared to him that the present measure had been very materially altered from the English Bill; and, besides, it was to be borne in mind, that the law of Scotland differed very much from the law of England, so that it did not follow that an attempt should be made to assimilate the laws of the two countries on every precise point. In the proposal for Scotland there was this great difference from the proposal for England, that while the jus mariti, which gave a right to the husband to the property of the wife, was most justly to be done away with, the separate right in administration, the curatorial power introduced by the law for the protection 1553 of the interests of the wife herself and of the children of the marriage also, was done away with. This right of administration proceeded on the assumption of the inexperience and greater want of knowledge on the part of the wife, and her disposition to trust more and rely more upon other people. It was, therefore, provided by law that there should be a distinct right of administration even where the husband's right of property was abandoned, so that no deed made by the wife in relation to her real property without the husband's consent was valid, and no deed or personal obligation could be valid even with his consent. The point was extremely interesting to Scotland; but this Bill had never been before the country at all. He had waited with some interest to learn from the hon. Member for Glasgow whether the measure was supported by public opinion in Scotland, whether any legal body had pronounced a legal opinion upon it, and whether proper opportunity of discussing it had been afforded to Scotland. With only one exception, and that was a Petition from some most respectable constituents of his own in Aberdeen, no Petition either for or against the Bill had been presented to the House. He therefore wished to impress upon hon. Gentlemen, that the fullest opportunity possible ought to be afforded to all who were interested in the matter to consider the Bill. There were several clauses which he viewed with grave objection; and, unquestionably, the Bill would have to undergo considerable alteration in Committee if it was to be made a satisfactory measure. The 3rd clause appeared to be exposed to all the objections stated to-day to the English measure; and as to the 4th clause, it was one entirely new, and did not necessarily arise out of the reasonable provision for doing away with the husband's jus mariti, or property, in the wife's estate. The hon. Member for Glasgow would find that so far from the 5th clause improving the position of the wife in regard to her property, it would actually put her in a worse position than she held now. Having stated his objections, which he thought were worthy of consideration, he desired to add that he was entirely favourable to the first part of the Bill; but he thought the people of Scotland should have full time to consider the measure.