THIRD READING. (Hansard, 29 April 1881)

§ MR. WARTON
said, he objected to the Bill being brought on at that hour (12.25). He protested against the practice which bad been followed by the Government on two or three occasions during the present Session of bringing forward Bills which had not been printed. There were two Bills amongst the Orders of the Day in that position, the present Bill being one of them. Owing to this objectionable practice, Bills were continually coming forward unexpectedly, and the result was that many hon. Members who took an interest in them were absent from the House and unable to take part in their discussion. He would move the adjournment of the debate.

§ SIR GEORGE CAMPBELL,
in seconding the Motion, said, it was totally impossible that this important subject could be discussed at that time of night. He had protested on a former occasion against a Bill which created a social revolution being brought forward in the small hours of the morning. The enormous social revolution which, he believed he was correct in saying, the Bill would bring about, would affect not only Scotland, but the other portions of the Kingdom; because, if it passed into law for Scotland, how could it be refused for England and Ireland? He thought that, looking at the measure as affecting social relations in this Kingdom, the House would have done well to give the question a greater amount of attention. The Bill had been brought forward in a shape that was hardly fair to the men. He was, however, free to admit that the Committee which sat to consider the Bill had dealt with it from the 1522 woman's point of view in a fair spirit—that was to say, they put the two spouses on the same footing as between themselves. So far, therefore, they had acted with perfect fairness. But to place them upon the same footing with regard to property seemed to him to reduce their married condition to nothing else than a sort of chumming together. His Indian experience enabled him to speak with some knowledge upon this matter, and to point out to the House that the law now proposed to be introduced was precisely the Mahommedan custom as practised under the law of the Koran, and which, in his experience, did not work well. By that law Mahommedan women were placed on an equal footing with men as regards property; but then that law also afforded great facilities for divorce as well as for plurality of wives, so that a man with a disagreeable wife had his remedy. Therefore, it seemed to him that a Bill which reduced marriage to that form of contract that prevailed in the East, and which, in his opinion, must be accompanied with facilities for divorce, ought not to be allowed to pass the third reading without further consideration.

MR. STAVELEY HILL
assured the House that, having sat upon the Committee which considered this Bill, the measure had been fully discussed on every clause and detail. The Committee were anxious in the extreme that the Bill should be completely put into shape, and that there should be no avoidance of details; and, if any part of the measure needed further discussion, he was sure it could be disposed of in a very short time. It could not properly be said that there had been any desire to avoid discussion.

§ SIR R. ASSHETON CROSS
was quite satisfied that the Bill had been carefully discussed. There was, however, no doubt that the measure affected England as well as Scotland. During a long experience in that House, he had seen that, when Bills were brought forward for Scotland in one Session, Bills upon the same subjects were often introduced during the next Session for England. He was glad to see the learned Lord Advocate in his place, and would like to 1523 hear from him how far the Bill would alter the law of Scotland, and from the learned Attorney General how far it might affect the law of England.

§ THE LORD ADVOCATE (Mr. J. M'LAREN)
said, he was surprised that, at the stage of the third reading of this measure, it should be alleged that there had been no adequate consideration of its provisions. The Bill had been considered on the second reading, and, after some discussion, it was agreed that the same course should be taken with regard to it as had been followed in the case of a cognate Bill with reference to England—namely, to refer it to a Select Committee. This being, with reference to Scotland, a comparatively new question, the Committee resolved to take the evidence of experts, and proceeded to examine several of the leading lawyers of Scotland; they had also the assistance of the Solicitor General for England, who was a Member of the Committee. He (the Lord Advocate) agreed with some of the criticisms which had been passed on the Bill as introduced by the hon. Member for Glasgow (Mr. Anderson), inasmuch as it certainly did, in the form in which it was brought in by him, proceed on the basis of entire separation of interests as between husband and wife. The result of the evidence given before the Select Committee was that, whether they had regard to the general opinion of the people of Scotland conversant with the subject, or whether they had regard to the usage of parties in their marriage contracts, or to the principles of law, it was not possible to carry out such a complete separation of interests without serious disurbance to the social relations of the country and the state of public feeling upon the subject. Accordingly the Bill underwent serious modification at the hands of the Committee; and he thought he might say that, while there were some differences of opinion upon the clauses and matters of detail, the Bill as reported to the House represented the most moderate view of the subject that had been taken in Committee. He might, however, add that the changes which the Bill proposed to introduce were not dissimilar either in kind or degree from those which the Legislature had already sanctioned with reference to the English law. In one respect only the Bill went a little further. Under the English Married 1524 Women's Property Act, complete protection was given to married women in regard to their personal property, provided it was invested in certain specified ways. There were various modes of investment suitable to different classes of society; but, under the recent Act, no protection was given unless the property were invested either in the funds, insurances, savings banks, or in one or two other ways pointed out by the Act. The Committee which sat to consider the present Bill were of opinion that the specification of particular investments was inexpedient. After the experience of several years, during which the English Act had been in operation, the Committee thought that, under any amendment of the law which was to be introduced, it was desirable to leave the same freedom of investment with regard to the property of married women that was competent to any other subject not under disability. The leading change now to be sanctioned was that the law in regard to the rights of married women in personal property should be put upon the same footing as that of real or heritable estate. There was no reason or equity for making the distinction which existed between these species of estates. The origin of the existing distinction was that, in old times, when our Common Law originated, there was really no personal estate worth mentioning. Such personal property as the wife might possess—corn, cattle, or suchlike—was not considered of sufficient importance to constitute separate estate. Where there was such estate, the law did not recognize that there was any interest distinct from the husband's. Now, however, that personal estate had increased to such an extent that its total value very greatly exceeded that of real estate, he thought that the law ought to recognize the fact, and deal with it as having the same character of permanence and value as real estate. This was the first change which the Bill proposed to legalize. The second was that, with regard to income, whether of real or personal estate, the wife should enjoy it as separate estate as it accrued. That change was justified on the ground that wherever a wife had property of such importance and value as to make it desirable that she should be protected by marriage settlement, it was invariably provided by such settlement that the income of her estate 1525 should be enjoyed by herself free from the control of her husband or his creditors. That being the protection secured by the friends for every married lady amongst the wealthy classes, he thought the House would concede that it was in no way unreasonable when applied to the property of persons of smaller means. At the same time, it had not been thought desirable that the control of the husband should be entirely withdrawn, or that such a measure of independence should be conceded as would be likely to cause dissensions or variance between husband and wife; and it was accordingly provided that the husband's consent should be necessary to any sale or assignment of the wife's property. In that way his legitimate authority was preserved, and a protection afforded against the squandering of the wife's property. He would not trouble the House by going into the other clauses of the Bill, nor should he attempt to discuss the suggestions thrown out by some hon. Members. The hon. Member for Kirkcaldy (Sir George Campbell) seemed to hint that, if this Bill were passed, it might be followed by some project of assimilation with the practice with which he had became familiar in India, and under which there was not only plurality of property, but plurality of wives. With all respect for the opinion and experience of the hon. Member, he pointed out that they were not at a stage on which the principle of the measure could be discussed; and, therefore, he thought that the observations which he had addressed to the House should have been made at an earlier period. For these reasons, he submitted that the House might safely give its approval to the Bill.

§ MR. WHITLEY
wished to draw special attention to one clause of the Bill. It was true, he observed, that by the Married Women's Property (England) Act, married women had control over their own property if invested in securities; but this Bill went a great deal further, and he regarded one clause as very objectionable. That was the clause by which a wife might lend money to her husband for business purposes. It might happen that a man would carry on business with his wife's money, and then the wife could claim as a creditor for the money so lent. He did not think the House ought to be 1526 asked to pass such a clause. If the Bill was to extend to England it would open the way to vast fraud; and a clause going, as this did, much further than any Bill dealing with married women's property, was certainly very objectionable. Another clause to which he objected was the clause making wives responsible for debts incurred for the maintenance of their families, for the husbands might incur heavy debts, and the clause would then operate harshly upon the wives. In any case, he believed the clause would prove very difficult to work.

§ MR. ANDERSON
regretted that the hon. Members who had spoken had not been Members of the Select Committee, for then they would have been aware that the Bill as now framed had become an extremely mild and moderate measure. In point of fact, it was now so mild and moderate that the Ladies' Committee would no longer have anything to do with it; and he was passing it rather against than with their wish. The Bill did not go as far as he should have liked; but it was a distinct measure of progress, and he thought it better to adopt a step in advance than do nothing at all. The hon. Member for Bridport (Mr. Warton), in persisting in adjourning the debate and postponing the Bill, was playing the game of the wildest part of the Women's Rights Committee; and now that he was aware of that he hoped the hon. Member would withdraw his Motion. The hon. Member for Liverpool (Mr. Whitley) had quite misunderstood the clause to which he objected. It did not give power to a wife to lend money to her husband. She had that power now when she had money of her own, and the object of the clause was to prevent a husband and wife having collusion for the purpose of defrauding creditors. It provided that if a wife did place her money in the hands of her husband for use in his business the creditors should not be prejudiced. With respect to the other clause to which the hon. Member objected—namely, that relating to household expenditure, he did not approve of, and should not defend it; but the Bill being now in a mild and moderate form he hoped the hon. Member opposite would allow it to pass.

§ SIR R. ASSHETON CROSS
invited the hon. and learned Solicitor General to answer the points raised by the hon. Member for Liverpool (Mr. Whitley).

§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
said, that although there were serious objections to the Bill before it was referred to a Select Committee, those objections had been substantially removed by the Committee, and the Bill was now much more moderate than the English Bill as it came from the Committee to which it had been referred. With reference to the point raised by the hon. Member for Liverpool (Mr. Whitley), he thought it a pity that that objection had not been taken when the Bill was passing through the Committee; but he apprehended that there was no objection to the principle proposed, which was not, as he understood, to enable a wife to lend her money to her husband—which she could always do in England or in Scotland—but to protect the creditors, by making the money primâ facie part of the assets of the husband. The onus of proof was thrown on the wife, who would have to prove a separate property, and could only then prove, in the same way as other persons, for her dividend. There might be a question as to the wording of the clause; but he would recommend his hon. Friend to turn his attention to improving the wording. Proposals in that direction would, no doubt, receive attention in "another place," and so the difficulty might be removed.

§ SIR R. ASSHETON CROSS
said, there was really a practical difficulty in regard to the clause, and he suggested that the Government should endeavour to improve it, instead of throwing the task on the hon. Member for Liverpool (Mr. Whitley).

MR. STAVELEY HILL
thought that if this clause was read with the other clauses of the Bill there would be no difficulty.