Commons Sitting of 20 February 1931

Preamble
The House met at Eleven of the Clock, Mr. SPEAKER in the Chair.
ORAL ANSWER TO QUESTION.

  NIGERIA AND MALAY STATES (TIN RESTRICTION SCHEME).
  Mr. STRAUSSasked the Under-Secretary of State for the Colonies whether any decision has been reached regarding the compulsory restriction of tin production in Nigeria and the Malay States?
  The UNDER-SECRETARY of STATE for the COLONIES (Dr. Drummond Shiels): His Majesty's Government have approved in principle of the Governments of the Malay States and of Nigeria passing legislation to regulate the production and export of tin with effect from the 1st of March. The approval is subject to the Secretary of State being satisfied as to the details of the international scheme after negotiations with the representatives of the Netherlands East Indies Government and of the Bolivian Government and to the understanding that the working of the restriction scheme is controlled by a committee of representatives of the four Governments concerned, by which the interests of the consumers will be protected against any excessive rise in price.
  Mr. STRAUSS: Can the Under-Secretary state how frequently it will be possible to vary the quota?
  Dr. SHIELS: It will be periodic, but the actual period will be settled after consultation with the international interests concerned.

  SUMMARY JURISDICTION (APPEALS) BILL,
  "to amend the law relating to appeals from Courts of Summary Jurisdiction," presented by Sir John Withers; supported by Mr. Ernest Brown, Dr. Burgin, Mr. Rhys Davies, Mr. McShane, Sir
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  Walter Greaves-Lord, and Mr. Turton; to be read a Second time upon Friday next, and to be printed. [Bill 96.]

  ARMY ESTIMATES, 1931.
  Estimates presented,—of Effective and Non-Effective Services of the Army for the financial year 1931 [by Command]; Referred to the Committee of Supply, and to be printed.
  CIVIL DEPARTMENTS (EXCESSES, 1929).
  Copy presented,—of Statement of the sums required to be voted in order to make good Excesses on certain Grants for Civil Departments for the year ended 31st March, 1930 [by Command]; Referred to the Committee of Supply, and to be printed.
  SELECTION (STANDING COMMITTEES).

    STANDING COMMITTEE B.
    Mr. Frederick Hall reported from the Committee of Selection; That they had discharged the following Member from Standing Committee B: Mr. Herbert Gibson; and had appointed in substitution: Mr. Messer.
    Mr. Frederick Hall further reported from the Committee: That they had discharged the following Member from Standing Committee B (added in respect of the Agricultural Marketing Bill): Mr. Benson; and had appointed in substitution: Mr. Rowson.
    Reports to lie upon the Table.

ORDER OF THE DAY.

  WILLS AND INTESTACIES (FAMILY MAINTENANCE) BILL.
  Order for Second Reading read.
  Miss RATHBONE: I beg to move, "That the Bill be now read a Second time."
  I crave the indulgence of the House, because I am not a lawyer and have to commend to a House containing many learned Members a Bill involving intricate points of law. I hope to meet the difficulty by setting out my case in plain English, understandable of the majority of the House which shares my deficiency, leaving to learned friends who will follow me the task of interpreting technical points which I may fail to deal with and to meet any legal objections which may be raised in the Debate. I appeal to the House not to make the mistaken assumption that this Bill is the traditional Measure which we often have to consider on a Friday morning, a sort of balloon sent up to test the way the wind is blowing, without any expectation that it will pass into law except in the long distant future. If this Bill achieves a Second reading to-day its promoters hope that it may be referred to a Joint Select Committee of both Houses, for I understand that the noble Lord Viscount Astor intends to introduce it almost immediately into the other House. Such a Committee will, no doubt, wish to make many changes in the Bill, but I dare to affirm that even in its present form its feet are very firmly planted upon mother earth.
  The Bill has not been rashly conceived or hastily thrown together. Before it attained its present form its promoters had the advantage not only of considering several previous, but abortive, attempts at legislation but also of consulting with many legal and social experts. I do not say that we have been able to take all the advice of those experts, because they frequently differed, but at least we were able to act in the light of their judgment, and the Bill as it has emerged is an honest effort to find the greatest common measure of agreement on the various knotty points which we have to decide. Perhaps the names of the backers
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  of the Bill may be some evidence of our success. Several learned Members of this House expressed their willingness to back the Bill, though their names were received too late, and as they may be unable to be present to-day, I am permitted to mention that the hon. and learned Member for East Nottingham (Mr. Birkett) and the hon. and learned Member for Moss Side (Sir G. Hurst) are among those who would have supported it if they had been able to be present.
  Having thus stated the claims of my Bill to serious attention, I must proceed to justify its provisions. First, there is the question, "Why legislate at all; why interfere with the freedom of a testator in this country to do what he will with his own?" It is a comparatively new freedom, even in England and Wales. By the old English common law there were considerable restrictions on the freedom of testators, imposed in the interest of survivors, and when those restrictions were removed, though it was done gradually, I suggest that it was done with too great completeness and at a time when the utter subjection of wife and children to the will of husband and father was fashionable. Since then, in England and Wales, a man has enjoyed a glorious liberty, to do what: to marry a woman, promising, if he is a member of the Church of England or the Roman Catholic Church, to endow her with all his worldly goods; give her, perhaps, a number of children; then, when the children are, possibly, quite young and unable to support themselves, or possibly when they have married and gone their several ways and it is too late for the wife to return to her old place in the labour market, if she ever had one, he may leave her and the children totally destitute, willing everything he possesses either to a mistress, or to a favoured relative or to charity.
  Or things may be the other way round. A man may marry a well-to-do woman and because he is in ill-health may be mainly dependent upon her; or he may, to please the wife, change his manner of living to a standard which he would have been quite unable to sustain out of his personal means; and then, from some caprice, he and his children may be left quite without means. Can that be called doing what one wills with one's own? Does marriage and parenthood not imply financial obligations as

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  well as moral? In one's lifetime it is so. A man is compelled to make provision for his wife and children. Should death end those obligations? In the case of other obligations it is not so. Any debts due to the landlord, the tailor, the butcher, or the tobacconist have to be discharged before any legacies can be paid. Why should it be only the most sacred kind of obligation which a man is permitted to shuffle off with his mortal coil? I speak in terms of a man's obligations towards a woman, because the case of the man so injured is much rarer, though such cases do occur, but the Bill applies equally to both sections.
  It may be said that cases of grave neglect of obligations occur only rarely, and that hard cases make bad law; but it is equally true to say that hard cases are an evidence of bad law. The injustice we want to guard against is much more widespread than most people suppose. Where numbers are concerned it is a common mistake to forget that a tiny percentage relatively may mean a large number absolutely. There are some 8,000,000 married couples in England and Wales. Suppose that even one husband in every thousand is a really bad husband, say, a petty tyrant or a thoroughly careless and indifferent man, or merely the weak victim of a dissolute woman. In that case there would be no fewer than 8,000 unhappy wives who, with their children, would be the potential victims of the kind of injustice which this Bill aims at remedying. Is that an extravagant estimate? I will give later some instances of the various cases which have come before my notice, but is it not obvious that, for one woman who is likely to blazon forth her wrongs before the world, there are one hundred who do not care to do so, when they know that there is no legal remedy?
  Before dealing with individual cases, I want to tell the House exactly what this Bill proposes to do. There were two courses open to us. We might have followed the precedent set by the law of Scotland, France, Germany, Holland, Italy, Sweden and Switzerland and many of the United States of America. Those countries assign to the spouse and to the children a definite proportion of the estate. Or we might have followed the precedent set by some of the Dominions,
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  where the surviving spouse and children are merely given the right to appeal to the court if they are left actually or almost destitute. We have, in fact, taken a middle course which strives to avoid the objections adhering to both extremes by giving rights more definite and better secured than in the Dominions, and yet subject to more limitations and exceptions than in Scotland.
  I will first outline the provisions made, and then I will note the limitations and exceptions attached to those provisions. Afterwards, I will trace the reasons which have guided us in shaping these proposals. We propose that the portion of the surviving spouse shall be in three parts. First, one-half the value of the personal chattels—clothes, furniture, and so forth; secondly, a grant out of the capital of the estate described in the Bill as "a priority payment" of £1,000 or half the value of the estate, whichever sum is the least; and, thirdly, the income of half the net estate—that is, the estate after the deduction of the priority payment—where there is no surviving child of any age, and of one-third where there is such child. As to the children, we have made an important departure from Scottish precedents by limiting their rights of compulsory inheritance to the period of dependency, this being defined as ceasing two years after completion of full-time education, and not later than the age of 23 in any case, unless the child is physically or mentally incapable of self-support. The share of the dependent children taken together is to consist of the yearly income of one-third of the net estate where there is a surviving spouse or an adult child; and where there is no such spouse or child then the income of one-half of the estate. But in order that the income thus insured to the spouse and dependent children may not be larger than is necessary to provide for their maintenance in reasonable accord with the station they have enjoyed during the lifetime of the deceased parent, a limit is set by the Bill to that income. It may not exceed, in the case of the spouse, £2,000 yearly; or ill the case of any child £300 yearly. Further, suppose that the spouse or the children have already independent means derived from a source other than their personal earnings, then they will receive

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  out of the dead parent's estate no more than is necessary to bring up their income to the assigned maxima.
  Further, in computing the share of spouse or children the executors of the deceased will be entitled to take into amount any provision which the deceased may have made during his lifetime for the benefit of his spouse or children or children after his death, such, for example, as a life policy or marriage settlement. A testator will even be permitted to contracts out altogether of the obligations imposed on him by the Bill, but he may only do this with the permission of the court. I will not stop to dwell on this, but I would commend this provision to those who fear the effect of the Bill on the owners of large landed estates. I am told that such persons in Scotland nearly always provide for their survivors in one of the other ways available to them, and so they are very rarely inconvenienced by statutory rights similar to those provided under this Bill.
  Finally, the Bill provides for those cases where there is clear evidence that a spouse or child is either undeserving of, or incapable of benefiting by the provision to which he would otherwise be entitled. The cases contemplated are mainly of two kinds. First, where the spouse or child is the inmate of a prison, asylum or other institution where its maintenance is already sufficiently provided for. His or her rights under the Bill may then be suspended or cancelled by the court, but only for the period of such incarceration. Secondly, there are the cases where a married couple have been actually separated for at least two years before the testator's death and have not been maintained by or maintained each other during that period. The court is then empowered to cancel altogether or to put down the benefits to which the surviving partner would otherwise be entitled under the Bill. But it may only do this where it has grounds for assuming either that the surviving spouse was to blame for the separation, or that it took place by mutual consent, and implied a renunciation of their claims on each other.
  Now as to the justification for these proposals. First, let me take the provision made in the normal case. Take the provision as to half the value of the
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  personal chattels going to the spouse. The reason for that is obvious. This household gear is part of the home which the couple have enjoyed together, and it means much, especially to the woman. Then comes the priority payment to the spouse of £1,000, or half the estate whichever is the lesser. If this provision were not made the remaining provision of part of the interest on the value of the estate would, in the case of small estates, be so insignificant as to be almost negligible. We have a precedent in the Act of 1925 which deals with cases of intestacy. There the preferential payment made to the spouse is £1,000, irrespective of the proportion which this bears to the whole estate. We have introduced the limitation that that proportion must not exceed one-half, because otherwise the testator's power of willing might be reduced to a nullity. Yet his will may have contained legacies to some relatives, such as an aged parent, whose claim is undeniable. Therefore, our proposal seems to be a just compromise.
  The remaining statutory provision made for the spouse of one-third of the income of the remaining estate where there are children, and one-half where there are no children is based on the Scottish precedent with this variation, that in Scotland she takes a one-third of the capital of the personal estate as well as one-third of the income of the real estate. Here, again, it has been judged well to keep ourselves in line with the Intestate Estates Act of 1925, which treats real estate, as far as possible, on the same basis as personal estate. The priority payment already described, which does not exist in Scotland, is some compensation for this deviation and serves the same purpose of assuring the spouse of a reasonable lump sum as well as a regular income which may and usually will be very small.
  With regard to the children's portion, here again we have followed the Scottish precedent by fixing it at the figures I have already given. As to the limitations and exceptions attached to these proposals, perhaps the most important is the limitation to minor children. Why have we not included the adult and able-bodied child? There are two reasons. In the first place, there is a view very widely held with surely much justification that, although in the great majority of cases parents should and will naturally

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  wish their grown-up children to partake, it should not be legally compulsory on a parent to do more than provide for the education and maintenance of a child up to the period when the child will normally be able to earn its own living. That age varies in different classes, and the proposal that dependency should be assumed to increase two years after the child has finished its education whether at school or university, seems to allow a reasonable margin, and in the case of an invalid we have provided for an extension so long as the invalidity lasts.
  The second reason for dealing with minor children is that, in the case of very small estates such as will chiefly come under this Measure, the yearly income provided for the spouse and dependent children is so small that, if the grownup children were allowed to take a share, the amount left for the juniors would often be quite insufficient to provide for their maintenance and education. A much esteemed Member of this House, whose experience lies chiefly among people with small incomes, felt very strongly on this point, and was much relieved when I told him it had been anticipated.
  In the next place, I must justify the limitation on the incomes of the spouse and children which is provided for in the Bill. Why did we fix the figures of £2,000 for the spouse and £300 for each child? It was because we were informed that in divorce proceedings these were usually in fact the maxima usually adopted. Many Members might think that they are unduly high, but that is a point of detail which, obviously, could be reconsidered in Committee. Bearing in mind the rare case where a really wealthy testator would come under the provisions of this Bill, and supposing that a son were receiving his education, say, at Rugby and Balliol College, and the whole family were living on a relatively high standard, we have followed the principle that in such a rare case they would be entitled to a provision which would not involve too violent a break in the standards to which the testator has accustomed them during his lifetime.
  Perhaps the most difficult problem that we have had to consider has been that of separated couples. The question of divorced couples we have left entirely
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  aside, because we understand that such cases are fairly satisfactorily and quite separately dealt with. Roughly speaking, there are two kinds of separation. There is the separation due to grave delinquency on the part of either husband of wife, which has entitled the innocent partner to a legal separation—either a judicial separation, which is the form usually asked for by a comparatively wealthy couple, or a separation with maintenance order obtained from a court of summary jurisdiction, which is the cheaper method available to the less well-to-do classes. In such cases it seems clear that the party who is declared innocent by the court ought not to be deprived, if he or she happens to be the survivor, of his or her rights under the Bill. If, on the other hand, the guilty party survives, clearly he or she should not benefit. But there are cases where this might involve hardship to the children left in the charge of the surviving partner, and, therefore, we only permit, and do not compel, the court in such cases to annul or cut down the rights of the spouse wholly or in part.
  The other kind of separation is that where a couple have either lived apart by mutual consent, with or without a deed of separation, or where, if the cause has been some kind of misconduct, the aggrieved spouse has either not sought or has failed to obtain any legal separation. In such cases we permit, but do not compel, the Court to annul the provision under the will wholly or in part, with this exception, that, if there is a deed of separation—and I ought to have said that this applies to judicial separations also—and if the deed or judicial separation includes a provision extending beyond the death of the testator, so that the survivor is already by agreement provided for, then the Court is permitted to cut down the provision made to the amount provided for in the Bill. In other such cases the court is not allowed to interfere, on the assumption that, when the couple entered into a deed of separation, then was the opportunity to make a reasonable compromise with regard to provision after death, and that, if such an agreement was not made, the surviving partner should not lose his or her rights under the Bill. I know that in connection with this very difficult provision there may be cases where injustice will be done, either to the testa-

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  tor, where a morally guilty surviving spouse inherits a provision to which he or she is not really entitled, or where the surviving partner has failed to prove his or her claim to the satisfaction of the Court. This, however, seems to be a difficulty that is really inherent in the nature of the case.
  As I began by pleading my legal ignorance, perhaps I may say here that I have some claim to consider myself an expert on the subject of marital unhappiness. It happened that during the War and for two years afterwards it was part of my task to investigate for the War Office and the Ministry of Pensions every case arising in the district of Liverpool where a, soldier asked for the forfeiture of his wife's separation allowance on the ground of her misconduct, or where a wife took proceedings against her husband for bigamy or desertion. In that way I had to investigate closely many hundreds of eases, taking the evidence of witnesses on both sides; and during the subsequent 10 years, when I was President of a large women's organisation, the National Union of Societies for equal Citizenship, which really initiated the agitation that has led to this Bill, we had the experience of introducing and actually getting on to the Statute Book three Measures affecting matrimonial status in the case of unhappily married wives, one of them affecting divorce cases; another affecting separation orders, and the third affecting the rights of custody over children. There must, therefore, be very few possible combinations or permutations of domestic discord with which I have not been brought into very close contact, and I well know the difficulty of deciding who is to blame when Darby and Joan fall out. It is hard enough when both parties are alive, but it is harder still when one of them is dead. We have done our best to arrive at a solution, but the Committee Which considers this provision in the Bill in the future may perhaps be able to devise means of improving it.
  I have laid before the House the broad outlines of the Bill. In leaving the matter to the judgment of the House, I will make no emotional appeal, but will recite just three typical cases that have come to my notice out of a very large number of others, and will leave them to make their own appeal. I select these cases because they are illustrative of large groups. Perhaps the commonest
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  ease of all is that which I will call the case of the other woman—the secret woman. A lady writes:
  "My husband died in January, 1930, leaving the money I should have had to a barmaid, and at the age of 51 I was left penniless. I am struggling along as best I can, lucky if I can provide for my daily wants, without any hope of providing for my old age, which is very near. Apart from being left without money, the shock broke up my nerves. I was associated with my husband in business, and we made every penny he had together, and, although I knew he was unfaithful, I expected to receive the results of my work, but out of £10,000 I did not get one penny."
  Another common type of case is that of the stepmother. Here is one instance. A prosperous innkeeper, who owned two motor cars and a good business, married as his second wife a trained nurse, without disclosing the fact that he was suffering from an infectious disease which he communicated to her. She nursed him devotedly until he died, only to find herself left, in broken health with no provision but a life interest in a sum of £800, everything else going to a son and daughter by the first wife, both of whom were married and had good businesses of their own, and who, immediately before the funeral, shut her out of her home. The last case that I will cite is of a type that occurs less often though I have several instances of it. I will call it the Regan and Goneril case, the part of King Lear being played by a plucky old lady of 75, who writes:
  "I am one who got a separation and maintenance order through a solicitor. I was in my sixtieth year, when my health and nerves were broken. You will know how I felt leaving a home after living at the same farm for over 30 years. My money and work started my husband in farming. It is four years since he died, leaving the estate to my sons and daughters. They are large farmers in Westmorland. I have not seen or heard from one of them since he died. I live in a two-roomed cottage, with rent and rates to pay out of 10s. old age pension; I owe no one a penny. There is no living for a wife after another woman comes between."
  For one ill-used woman who writes, or gets her friends to write for her, to a total stranger on seeing a few lines in a paper about a projected Bill there are probably hundreds who make no complaint. But suppose that it is otherwise. Suppose that the sufferers are few. Even then we should make our appeal to the House to redress this anomaly in the law,

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  because the question at stake is not merely a remedy for the injustice and hardship which bears on some men, women and children who find themselves plunged into undeserved and unanticipated poverty, although that would be worth doing. A sufferer does not suffer the less because he is one of a few. As one of the oldest folk songs in the English language says:
  "One is one and all alone
  And ever more shall be so."
  But there is more at stake—the broad principle of human justice, the principle that legal obligations solemnly entered into should not be discharged even posthumously where it is possible to prevent it, and it is because this Bill is based upon that broad principle of justice that I ask the House to give it a Second Reading.
  Mr. ARTHUR HENDERSON, Junr.: I beg to second the Motion.
  As the hon. Lady has said, this Bill seeks to follow the precedents that are contained in the law of Scotland as far as the making of wills is concerned. In my view, the promoters of the Bill are well advised in taking that course. I think most lawyers will agree that the law of Scotland, in so far as it deals with family relations, is a model of its kind and well worthy of being copied by our own country. There may be those who are inclined to the view that we should not carry the absorption of things Scottish too far, and as regards some things I agree. I am reminded of the Irishman who said he was Irish by extraction, English by adoption, and Scotch by absorption. I think there will be general agreement that, so far as good things are concerned—good legal Scottish products—there is no reason why we on this side of the border should not adopt them.
  It may be argued that the Bill constitutes an interference with the liberty of the subject. That is an old argument which has been used on many occasion, and I have no doubt will be used on many future occasions, but I want to remind the House of one or two facts in this connection. Under English law, the husband has always been liable to maintain his wife and children. He cannot escape his obligations. The law will not allow him to do so. The same applies to parents. They are liable to maintain
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  their children. This principle has been carried a step further by the provisions of the Widows', Orphans' and Contributory Pensions Act, 1926, under which it is obligatory upon all insured persons to pay a contribution towards the central fund out of which pensions will be paid to their widows and children. There are more than 16,000,000 insured contributors, and it is fair to say that there we have a further example of compulsory provision for the wives and children of those insured persons. I am prepared to agree that this Bill will more closely affect what I may call the black-coated worker, that is to say, the worker whose income is over £250 a year, than the so-called working-classes or the wealthy section of our community, but, until the social insurance system that we enjoy is extended so as to include those black-coated workers whose incomes exceed the statutory limit of £250, I think we are entitled to have regard to the hardships that are caused under the present system and to do what we can to remedy that position.
  I do not propose to cover ground which the hon. Lady has already covered, but I should like to point out one or two provisions which may perhaps remove doubts in the minds of sonic Members present. I was delighted, for example, to observe a provision in the Bill in favour of contracting-out. We have heard a good deal during the past week about the advantages of contracting-out as against contracting-in, and I am sure hon. Members opposite, who are so strongly in favour of the principle of contracting-in, will realise that we on this side have always maintained that the general principle that operated in the law of the country was the system of contracting-out rather than the system of contracting-in. Under that provision, it will be possible, with the leave of the court, to contract out of the priority rights that are conferred under the provisions of the Bill. On the other hand, provision is made to prevent any person escaping the obligations imposed by the Bill by making a voluntary disposition of his property. That, again, is no new principle in the English law. Under the Bankruptcy Laws, if a bankrupt has, within two years of becoming bankrupt, made a voluntary disposition of his property, that is to say a disposition otherwise than for valuable consideration, it is possible for the creditors

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  to obtain possession of it. This is the same principle. This provides that, if property is conveyed by a deceased person otherwise than for valuable consideration within 12 months of death, it will be possible for the Court to follow that property and to charge it with payments which have to be made under the Bill.
  I should also like to remind the House of this point. Under the intestacy law in operation at present, the widow and children of an intestate enjoy, in effect, the right to priority payments and to a life interest in the estate of the intestate almost identical with the provisions of this Bill. In the case of a person who dies intestate, the widow is entitled to a priority payment of £1,000, and, in addition, a third interest or, if there are no children, a half interest in the residuary estate, and the children are also entitled to a smaller share. This Bill, in effect, merely seeks to make obligatory what arises when the deceased has died without having made a will. I submit to the House that it is a fair and a just Bill. It has not been brought forward by reason of any special case which may have happened during recent times, but it is a Bill which has been advocated for a considerable tune by those who are interested in securing the rights of women in this country, and I hope that the House will give it a Second Reading.
  Captain BOURNE: I beg to move to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
  The hon. Lady who introduced this Bill, in the course of a very interesting speech, said that she was an expert in marital unhappiness. I think that everybody in the House will realise the very great amount of work she has done in that respect, but I would venture to suggest that one who is an expert in the weaknesses of humanity is not necessarily the best judge of what alteration in the law is required. People who see a very great deal in the misfortunes of human weakness in any shape or form are apt to regard all their fellow creatures as necessarily suffering from the same evils. The doctor is apt to regard the average human being as a possible patient or as suffering from some interesting complaint. On the whole, when you come to
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  deal with legislation, you generally have to legislate for the interests of the healthy section of the community, which is far in the majority. I do not know why we should necessarily regard the hon. Lady's experience as best fitting her to judge what may be necessary.
  Miss RATHBONE: May I call attention to the fact that I suggested that one bad husband in every thousand was a probable estimate.
  Captain BOURNE: I was just coming to that part of the hon. Lady's speech. The thing which struck me most about her speech after that was the fact that she could only give an estimate of the number of cases which might be affected by the Bill. I want the House to realise that the Bill cannot at the most affect more than an extraordinarily small class of persons, but, in so doing, it may interfere with, and may cause equal hardship and equal injustice to, a much larger class of persons. Persons who do not fail to carry out their duties as husbands and parents, whose very arrangements may perhaps be made in the best interests of their families, of their wives and children, may entirely be upset if we alter, for insufficient reasons, the law of this country as it has existed for well over 100 years. The only class of people who can possibly be affected by this Bill, or who may be affected by this Bill—I will not say affected by this Bill—is a very small class of people who, deliberately and maliciously, fail to make provision for their wives and children.
  I am not suggesting for one moment that anybody who undertakes the obligations of matrimony and of parentage is not under a moral obligation to carry out those duties. I do not hold—and I do not know that this Bill professes to hold—any brief for the man who, having lived with his wife possibly for many years leaves the whole of his money to a home for lost dogs or stray cats. That is not the point I wish to raise in this House, but I want to put this fact to the House, and put it very seriously. The number of those people is very slight. The hon. Lady said that the most she might estimate it at was 8,000. I doubt if it is anything like so high.
  The majority of people who are careless of what happens about their property when they die, die intestate, and under

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  the law of this country the position of surviving wife and children is already well covered under the Acts dealing with Intestacy. But there are a very large number of cases of people who have perhaps for some reason or another—there may be other reasons—make very careful provision in the course of their lifetime both for their widows, if the widow should survive, and for their children, especially their younger children, in order that, let us say, a house which the family have had for centuries may not have to be sold at death. There are those cases, and there is, after all, the cases where arrangements are entered into voluntarily and where conceivably nothing is left to the widow because she is already provided for or may have means of her own, and has agreed that no provision should be made for her. These people are going to have their private arrangements upset under this Bill. I entirely disagree with my hon. Friend the Member for Cambridge University (Sir J. Withers). If he will look at it, he will see that you can make application to the court in the event of other provision being made. We all know what the making of applications to the court means. It is expensive. It may, no doubt, benefit the hon. Member and his profession and those practising in the higher courts. No doubt they will benefit under this provision. In fact, if this Bill goes through in its present form I can foresee a very lucrative time for the lawyers for some time to come.
  I see no provision whatever in the Bill for the cases where the surviving spouse is possessed of ample independent means and is not in the least dependent upon the husband, and that, surely, is one of the cases for contracting-out. My main objection to the Bill is that it does not make contracting-out nearly easy enough. I am certain that in all cases where there are settlements—and they are very frequent under our law and are based on a common desire to make a marriage settlement—and where other provisions are made for the surviving spouse, they ought to be able to contract-out voluntarily under this Bill. After all, in those cases any arrangements made will be made with the consent of both parties. I fail to see what right this House has to interfere between husband and wife in cases where they have come to an arrangement to
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  their mutual satisfaction. In cases where they have not settled the matter, there might possibly be some ground for interference, but there is nothing here to enable people to contract out if they wish.
  Why should we interfere? It is their affair. They are capable of managing their own affairs. In the vast majority of cases married people do make these arrangements among themselves. They decide what shall be left to the wife, and what arrangements shall be made to carry on in the event of the death of one or other of the spouses. It is a matter of some interest to them that either more money should be left to the children and less to the wife, or more money, possibly, left to one of the children not so likely to make its way in the world. These things, in the vast majority of cases, are settled by mutual consent. If you cannot get mutual consent, then possibly you might have some cause for this Measure. I feel that in all cases where mutual consent can be arrived at it is a far more satisfactory method of settlement for the property to be disposed of than it is to have it disposed of by legislation.
  The hon. Member who seconded the Measure said that we ought to follow Scotland and that the law of Scotland on family affairs was excellent. I am not myself familiar with the law of Scotland, but with the contemporary branch of law of this country which so far has prevailed. Although I am not very well aware of Scottish affairs, in Scotland the whole of their law on real property is completely and utterly different from what obtains in this country. Our law has been based for a very long time on the right of a testator disposing of his property in certain cases if he makes a will, and, under that a very elaborate system has grown up for protecting the rights of wives independent of whatever may happen in the will. The Bill cuts right across the existing law and across all the arrangements that may have been made with the best will in the world, and with the object of carrying out the conditions which the hon. Lady wished to see carried out.
  There is one last objection I would urge against it. As I read the Bill, the interest of the wife, and of the children up to the age of 23, is to be what for the lack of a better term I will call a life interest. It is not to be an inheritance

  1657
  of capital; it is to be an inheritance of income. It means that whoever has to administer an estate will be obliged to reserve at least sufficient of the capital to pay that interest. I do not know how many hon. Members have had experience in the winding-up of estate, especially small estates. If there is one thing which creates a great hardship on beneficiaries it is being obliged to postpone the winding-up of an estate because there are certain life interests to pay out, and you are bound to keep perhaps an unduly large share of capital intact in order to be certain of producing that income. Hardship and inconvenience is often caused. Certain beneficiaries may be in actual need of capital sums, but the money is tied up and the whole thing is hung up in a state of uncertainty in order to provide the income for the life interests. There is, further, the possibility that when the securities are sold 20 years later there may be a heavy loss of capital, which will come heavily on the shoulders of the beneficiaries. Therefore, anything that delays the winding-up of an estate is bad both from the point of view of the beneficiaries and the country in general.
  The hon. Lady has made out an insufficient case for an alteration of the law. In the event of the Bill receiving a Second Reading it will certainly require very careful investigation. I hope that, at any rate, the contracting out Clause will be carefully reconsidered and that the Bill will be left in such a form that while it will be possible to contract out by mutual consent, without the necessity of going to court, it will deal with the one illegitimate case where the husband deliberately and maliciously leaves his property away from his widow and family.
  Sir SAMUEL ROBERTS: I beg to second the Amendment.
  I do so for reasons somewhat different from those which have been advanced by the mover. My first reason is in the interests of the business of the House and in the interests of the Members of the House. We have reached a stage when, for all practical purposes, it will be impossible for a Private Members' Bill to get a Third Reading unless it is non-contentious. If the present Bill receives a
  1658
  Second Reading and the Motion to commit it to a Select Committee is agreed to, it will mean that a large number of Members of this House and the other place will be kept for many weeks investigating the matter, and when the Bill comes back to this House, in late July, from the Select Committee, there will be no real chance of this House giving a Third Reading to the Bill, which will certainly then need full discussion, because it is so full of detailed and complex ramifications. I think hon. Members realise that a private Member's Bill to be successful must be quite small, without complications and without much opposition. A private Member's Bill of the complex character of the present Bill has not been passed in this House, and we ought not to send it to a Select Committee, because in the end it will lead to nothing.
  12 n.
  I do not think this sort of Bill ought to be introduced except for kite flying purposes, which the hon. Member has denied. It is a Bill which certainly ought to be drafted, if it is to be drafted at all, by the Government draftsman. If it had to be brought in, it ought to be introduced by the Government, because, although it may seem very small and although it may appear only to deal with a very few casess, it would make a fundamental change in the way in which we look upon property in this country. I am not going to raise the point which has been raised by one hon. Member opposite and say that I object to the Bill as an interference with public and private liberty. We all realise that we have very little private liberty left. I hope that we shall not give a Second Reading to a Bill which would make a drastic change in the way that one looks upon property. There are two ways of looking at property. We can look at it as belonging to the individual who has the right to do what he likes with it, or we can look at it as a common family possession, which the individual has not the right to squander, because the members of the family in certain proportions have the right to it on his death. This Bill is an absolute hybrid between the two. It does not accept the position that the man's estate is his own and it does not accept the position that it is a common

  1659
  family possession but, in a very complicated way, it introduces part of one and part of the other.
  Those who have moved about the world, especially those who have had some experience of legal matters, know perfectly well that one does come across cases of extremely unjust wills. I have come across several, but in none of those cases would this Bill help in the least. One of the hardest cases is that of an old gentleman who is married to a young lady. He has a family who have been living with him, living happily with him, possibly unmarried daughters who have never been given an opportunity of earning their living, and they find themselves at the age of, say, 50 or 60—they would not come under this Bill because they are over 23—left with nothing, because the young woman has collared the lot. That is putting the boot on the other leg. Cases of that kind are just as hard as any of the cases quoted by the hon. Member. There are also cases of people who have mental obsessions, not of such a character that the court would hold that they are insane. They have a particular obsession, a like or a dislike, or they have been got at by somebody, but there is not sufficient evidence to prove undue influence. There are enormous numbers of hard cases on these lines where the will causes intense hardship. There are many cases which one could call to mind, and I am certain that these cases of unjust wills are a hundred times more common in this country than the cases quoted by the hon. Member.
  I do not want to detract from the hardship of any of the cases to which the hon. Member referred, but one has always to remember that statements such as those just quoted must always he hearsay. The other side of the case can never be beard, because the only person who could give the other side of the case is the testator, and he or she is dead. Therefore, in judging evidence one has to realise that it is evidence that cannot be contradicted and that no witnesses for the defence can be brought up by any ordinary normal means. I have not perhaps such strong feelings against the second proposition that I put forward, that we might look upon property as a common family possession. We might do
  1660
  something which would meet some of the hard cases to which I have alluded. I most strongly object to the methods that the Bill proposes to carry out. In order to meet a certain number of hard cases it is going to interfere with the vast number of wills which are made perfectly properly and rightly.
  One of the commonest forms of will is, "I bequeath all I possess to my wife and appoint her sole executrix." That is a far more common form of will than any unjust will ever made, but it would be entirely upset if this Bill was passed as the trustees would have to come in and take capital sufficient to provide £300 for each of the children because they are not provided for under the will. Every simple will of this kind would, therefore, be the subject of an application to the court in order that this capital sum of money should be set aside, otherwise, the whole thing might be upset, as the wife might think fit to spend the money; and nobody can stop her spending it or giving it away. That would be a rare case of course, but because of that rare case the trustees would have to come along and make an application for every single child, and separate trusts would have to be settled. That would mean fearful complications. The hon. Member for Cambridge University (Sir J. Withers) seems to take objection to my reading of the Bill and I shall be glad if he will point out any provision in the Bill which would allow a wife to benefit under a will with two children unprovided for without the executors having to set aside capital up to the extent of one-half for the children. As I read the Bill one-half of the capital would have to be put aside into a separate trust, the income to he equally divided between the children until they cease to be infants. This is the wrong way of dealing with this matter.
  I object also to what I may call the cat and mouse clause, where the children are to have a little bit and then it is to be withdrawn. That is most unfair. If you are going to upset a bad and unjust will do it properly. I do not say that when a boy is 23 years of age his means of subsistence should cease and that the money should go to a cat's home, hut if the will is so unjust that it has to be upset we should do it properly and in the right way. Take a young man who has

  1661
  been decently educated up to a £300 per year standard. There is no money to pay a premium for him to be articled to the hon. Member for Cambridge University, there is no money for him to buy a partnership either in law or medicine, where a little bit of money would make all the difference to him in his future life. The whole Bill seems to be based on the principle of giving a little bit and taking it away, and that provision alone shows that the Bill as drawn should not be passed.
  It may be said these are Committee points, but on reading the Bill I found so many Committee points to which objection could be taken that it became an accumulation of Committee points to such an extent that it is a necessity to reject the Bill. I am not opposed to a well thought out provision brought in after inquiry, and by the Government, whereby we should change our outlook and look upon money as a common family possession, and bring in some provision which would get rid of these injustices and many others which I have pointed out, which are even greater. The Bill is so complicated, so difficult to understand, and so hybrid in its views, that I ask the House not to trouble the Select Committee with it.
  Mr. LLEWELLYN-JONES: There may be a good deal to be said for the principle underlying the Bill but when I perused the very complicated measure which has been brought before the House I appreciated the fact that if it became law we should do more to create family misunderstandings and promote litigation, and in the end would not do very much to remedy the state of affairs to which the hon. Lady had referred. When I first started reading Roman Law, many years ago, I felt that there was a good deal to be said for the provision in regard to the rights of the family of a deceased person as compared with English Law, but the Bill as it stands, instead of removing grievances, will create a large number of other hardships, probably very much more numerous than the hardships which the Bill professes to remedy. We all start with the admission that a man should not be in a position to dispose of his property so as to leave his wife and children destitute.
  We are all agreed that it is a man's duty to provide for his wife and family
  1662
  and to see that everything is done so that those who are left are able to continue to live in the same position as they did during his lifetime. I have an experience of over 40 years as a practising solicitor and during the whole of that time I have not come into contact with a case like those referred to by the hon. Lady who has introduced the Bill. I was talking this morning with two fellow practitioners in this House, who also have considerable experience in legal affairs, and their experience is the same as mine. I have invariably found that in the case of small farmers, small business men, people who have saved a certain amount of money, their great anxiety in getting their will drafted is to see that proper provision is made for their widows and children, and practising solicitors who are Members of this House will agree that when they are consulted as to the preparation of a will they are not only consulted as to its form but also asked for their advice as to how the estate should deal with the circumstances which are likely to arise after the death of the testator.
  I am certain that their experience must agree with mine, that practically invariably a testator is anxious to do everything in the best way for those who are to be left after him. My complaint about the Bill is that it is going to strike a blow at the desire of a testator to make proper provision for his family. Let me take a number of instances such as have constantly come under my notice. The last speaker referred to the very simple case of a man bequeathing everything to his wife. But there are other cases with which this Bill would deal. In my practice I have a very large number of small farmers, some of them freeholders, others tenant farmers with farms of from 20 to 100 acres. Some of the older children perhaps have gone out into the world. They have received a certain small sum when they have married and started in another farm, and the farmer is left with his wife and perhaps a son and daughter at home. The farmer's desire is that as far as possible, if anything happens to him, his widow and the two children at home shall be in a position to carry on the farm in the same way as it has been carried on during his lifetime.

  1663
  The form of will which one almost invariably sees in these cases, often a will not drawn up by a solicitor, but by a clergyman or minister, provides for the appointment of executors or trustees and leaves the whole of the stock and farm to the widow during her life and afterwards to the children who remain at home. I know cases where farms have gone on from generation to generation under provisions of that kind. I suggest that if this Bill becomes law, at once it would be impossible for a testator to make a will of that kind. Of course, it may be said that Clause 6 provides for contracting out and would meet the case. But the individual who is preparing his will without professional advice never thinks of making an arrangement of that kind in his lifetime. If after his death this question is raised by a solicitor who is consulted to obtain probate of the will, and it is pointed out that an application must be made to the court involving cost and trouble, you are going to be faced with serious difficulties.
  There is another thing that may happen there. When it is realised that there is a possibility of upsetting the terms of the will you may have other members of the family who are dissatisfied with the will taking action and fomenting trouble in the family. One would have thought that in Clause 7 something might have been done to meet this case, but I find that none of the Sub-sections of that Clause would meet the case. It is not merely in the case of the small farmer, which I am taking as a typical example, that difficulties would arise, but there is the small family business in the country town, where exactly the same thing occurs and where there is a desire that as far as possible the business should be carried on in the future in the same way as it has been carried on during the testator's lifetime. Take another type of case which one meets with very frequently—the case of a man who has been able to put by a fair sum of money so as to bring him in a small income. It may be that he has invested £3,000 or £4,000, which will bring him an income of £150 or £200 a year. He makes his will, leaving all his property to his wife during widowhood and afterwards to his children. There you have a provision which enables his widow to live with the same standard of comfort as during his
  1664
  lifetime, and he may in the will give the widow power to appoint amongst his children how the corpus of the estate should be divided. That case would be defeated by the terms of this Bill.
  There is another point which I am certain is overlooked by the framers of the Bill. It is a point which, under the Administration of Estates Act of 1925, is at the present moment causing a certain amount of trouble. A man dies intestate or by his will he leaves his property to his wife. He is survived by his wife and a number of children. Within a year or two of his death his widow marries again. If this Bill were passed the whole or a great part of the estate which he has left to his widow would go to her second husband, and the children of the first husband would be deprived of any rights. Surely that is not a position that this House can contemplate. I am certain that the result of passing the Bill would lead to interminable litigation and trouble in families. At the present moment a will is made, the members of the family come together, the will is read, in ninety-nine case out of a hundred, there is every desire on the part of members of the family that the wishes of the testator should be respected; but the moment the will is read, if it does not comply absolutely with the terms of this Bill, there will be trouble in the family, resulting in estrangement and litigation. [HON. MEMBERS: "Not in Scottish law."] With regard to Scottish law I understand that in a large number of cases there are provisions whereby the spouses can really contract out.
  A number of hard cases have been referred to but every one of the cases mentioned in the leaflet circulated to hon. Members are such that the purpose of the Bill in dealing with them could be very easily defeated. The only Clause which deals with voluntary dispositions is Clause 9. If this Bill becomes law, any person who desires to disinherit his wife and family will not execute a will. It is not likely that he is going to leave the making of provision for any other person, be it a mistress or anyone else, until he knows that his life is approaching its end. He will probably, if this Bill becomes law, consult legal advisers and they will suggest to him that by appointing trustees, executing a trust deed, and vesting his property upon trust for cer-

  1665
  tain purposes, he will be able to defeat the purpose of this Measure. The only case in which such a disposition could be set aside would be if it were made within one year of the date of death. There is no valuable consideration, and if this disposition were made 15 months before death, no court in the country would be in a position to set it aside. Every one of the hard cases which have been mentioned could be dealt with by means of voluntary dispositions inter vivos and there would be no necessity for making a will. I quite appreciate that there may be a few cases in which some remedy should be found, but I am disposed to think that the provisions which have been made in the New Zealand code as regards family protection would meet such cases much more satisfactorily than the complicated provisions of this Bill. In the consolidated statutes of New Zealand it is provided
  "if any person dies leaving a will without making therein adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may at its discretion on an application by or on behalf of the said wife, husband or children, order that such provision as the court thinks fit, shall be made out of the estate of the testator for such wife, husband or children."
  The court may attach conditons to the order, and the statute also provides as to the method of making provision. When Lord Astor introduced a Motion dealing with this subject in the House of Lords four or five years ago, reference was made to the fact that very few applications had been necessary under the New Zealand Statute. He suggested that the reason was that provision was made by the testators in order to come within the scope of the law, but, on the other hand, are we not justified in assuming that the number of persons who endeavour to disinherit their families in the disgraceful way referred to, is so very small that there is no necessity to make applications to the court. Referring again to the Motion introduced by Lord Astor in the House of Lords, it is remarkable that the then Lord Chancellor and an ex-Lord Chancellor very strongly opposed any interference with the existing state of affairs. I hope that the House, having regard to the complicated nature of this attempt to deal with the problem, will not give the Bill a Second Reading. If I were approaching this matter from the
  1666
  standpoint of a practising solicitor desirous of increasing my professional emoluments I should support the Second Reading of the Bill, because I am certain that the Measure would result in a, crop of litigation in connection with wills such as we have not seen in this country for many years. But it is the duty of this House and also the duty of the legal profession, not to do anything to encourage family feuds and litigation, and for this reason I hope, as I say, that the House will decline to give the Bill a Second Reading.
  Mrs. HAMILTON: I rise to support the Second Reading of the Bill with a great sense of my lack of legal qualifications but, possibly, since the House has now heard four speeches dealing with what are primarily legal points, and what are, from the standpoint of the Mover and Seconder of the Motion for Second Reading, points capable of being met in Committee, I may be allowed to return to the more general principle lying behind the Bill, which causes me whole-heartedly to support it. I do not regard this as a Bill designed merely to curb the capriciousness of ageing testators. It is not merely designed even to carry to its logical conclusion, the practice whereby the State imposes upon intestate persons the obligation to make provision for their spouses and children, or the obligation incorporated in our Contributory Pensions Act. That is a very important point, but it does not seem, at any rate to me, to be the main point in connection with the Bill. I am not even supporting it as a Scot, although I welcome the compliment to my native country which is implied by this degree of imitation.
  I wish to return to the point of view presented by the hon. and gallant Member for Oxford (Captain Bourne) in his opposition to the Second Reading. He suggested that the arguments put forward for the Bill were the very arguments put forward, characteristically, by doctors who derived their view from the study of diseased persons. Surely the more modern view of the science of medicine, the view taken by those doctors whom we would regard as modern in outlook and practice, is to seek to establish health and not simply to derive their views, or indeed direct their practice to the elimination of disease. What I regard

  1667
  as vital in this Bill is the principle which lies behind it in relation to marriage itself. It seems to me one of the important things which we can do in this House and which it is germane to do on the Second Reading of a Bill of this kind is to crystallise, perhaps to some extent, to create a public opinion in regard to our larger and more vital social institutions, and no social institution is so central in our common life, so vital in its reactions, as the institution of marriage.
  A great many people would say that at the present day we suffer more from uncertainty as to what are the moral and other standards to be expressed in that institution than from any other doubt. I suggest that our generation is working painfully and with difficulty towards a conception of the marriage relationship based on comradeship and the maximum amount of shared responsibility, and that this Bill essentially supports and would give the possibility of realisation to that point of view. In entering into the partnership, it is true that in many cases the woman has to abandon one form of work for another. She gives up, it may be, a wage-earning career and takes on another occupation. Nothing is socially of greater importance than that that second work of a woman should be recognised in the most public way possible as being work, as being a contribution, as being something positive and constructive which the woman does. She is not merely abandoning a career and being kept by another, but in being wife, mother, housekeeper, companion to a life partner, she is making a contribution in the shape of work. If it is possible for one partner in marriage, no matter which, at its end to make a gesture, if no more, which denies the reality of that partnership and that companionship, we are, in accepting that, sanctioning an action which goes to the root of the whole conception of marriage as a partnership between two equals, who share burdens together and have therefore a common, ultimate responsibility in the disposal of what is to a very large extent in every case a joint property. I am very glad that this Bill quite frankly and definitely takes the view that this conception of the relationship should prevail without any of the distinctions between the sexes of the past. No one, I
  1668
  am glad to say, has attacked it as being a feminist Bill, for it certainly is not that, but I think it is a contribution of some importance in the clearing of our minds here, and thereby the minds of the greater community towards which we are responsible outside, on this most essential point.
  I remember that there used to be a song which was played largely at perhaps an entertainment and afterwards to an extent on the gramophone, which expressed a sort of general aspiration of the young, on entering into matrimony, in these words:
  "I want to be happy,
  And I can't be happy,
  If I don't make you happy too."
  That point of view, which represents an essentially transitory notion of what marriage can be, has got to be replaced by something which is very much less romantic, in that limited sense of romance, but is really for more romantic, in so far as it represents the joint address of two minds to the most difficult human enterprise, that of establishing on an enduring basis a relationship which is of value; and the State, I think, whenever it has an opportunity of making its contribution by way of recognition of this enduring relationship, ought to do so. It may seem that in seeing this principle as behind the Bill, I have travelled into metaphysical regions which one has to be a Scot not to apologize for, but I think it is because this Bill does recognise marriage as a partnership, an enduring partnership, that it ought at this stage, when a Second Reading is asked for, to be supported by Members on all sides of this House.
  Sir COOPER RAWSON: I rise to support, in a very few words, the Amendment, because the Bill was introduced in so eloquent a manner that a lot of people might think it is a good Bill. I think the Bill represents the curate's egg, except that there is no doubt about the element of bad in it. The hon. Lady reminds us that this Bill is supported by distinguished legal Members in all parts of the House. When one has read through the Bill, one does not wonder, because the terms of Clause 7, for instance, provide for a regular harvest for the legal profession. Another objection is that the Bill places men and women on an equal footing, which I think is wrong. The hon. Member referred to individual cases,

  1669
  which I think is always a weak sign, because one can always provide an individual case to prove anything.
  I would like to refer, in return, to a very common case. I think hon. Members will agree that there are hundreds of cases in every constituency in this country where a woman marries a man and, owing to incompatibility of temperament or for worse causes on the part of the man, she is compelled to leave her home, with the child or children, rather than go to the fuss, expense, and publicity, which is more important than anything to her, of going to the court and getting a proper separation order. There are hundreds of cases like that all over the country, and in such cases the woman conserves what little she has and endeavours to save and build up a business, in order to maintain her and her children and educate them, and often years may pass during which she does not hear a thing of her husband and does not receive anything towards the upkeep of her home from him. Then she dies, and the vulture descends, under this Bill, and helps himself to the pickings.
  Miss RATHBONE: May I point out that that kind of case is specifically provided for in the Bill? It is one of the cases where the court can set aside wholly the provisions under which the spouse would otherwise be entitled to the property.
  Sir C. RAWSON: I am aware of that fact. That is Sub-section (1, d) of Clause 7, and that is one of my main objections to the Bill. If a wife leaves her husband in 1930, owing to no fault of her own, and dies in 1940, and she has not gone to the publicity of either going to a solicitor and getting a deed of separation, or to the publicity, which she shirks, of going to the court and getting a legal separation, she is cut out of the Bill entirely. She gets nothing at all, unless she goes to that publicity and expense of getting a separation. So far as I understand Sub-section (1, d), it means, shorn of its trimmings, that the court may annul priority payment to the widow on the ground that two years before the death of her husband she has not obtained a separation by deed or has not obtained a separation order. That is very wrong, and a woman, if
  1670
  she has to leave her husband, ought to be allowed to leave the whole of her money at her death to the children whom she has been educating.
  The only other thing that I want to say, in conclusion, is with regard to Clause 9, which provides that any disposition made by a person within 12 months of his death can be upset by that court and that
  "the Court may by order set aside such disposition in whole or in part and may give all consequential directions as to the manner in which the property affected by the order is to be dealt with."
  It will not require very much ingenuity, when a man feels more or less in extremis, to go to one of the clever solicitors that there are in this House, or barristers as well, if necessary, and ask him to devise a way in which he can get out of it, and by the time the man has died, and his will has been proved, and the creditors have helped themselves to what they require, it will be very easy for the beneficiary, or the barmaid, or whoever the lady with whom the man has been living is, to dispose of the whole of that money, or a great proportion of it, before the application to the court has been made. I hope we shall not be told that these little troubles may be got over in the Committee upstairs, but that the Bill may be taken back for six months and then possibly either very much improved or finally buried altogether.
  Mr. LOVAT-FRASER: I rise to support the Bill, which is based on the same notion as that upon which the present law of Scotland is based. Arthur Balfour, the late Prime Minister, once said that everything in Scotland was better than in England but that the difficulty was to get the English people to see it. I hope the result of this discussion will be to persuade a majority of the English Members present that, in adopting the principle of Scottish law in this matter, they will be acting wisely. The Bill does not follow quite closely the Scottish law. The Scottish law provides that the widow, gets one-third of the movable estate of the deceased husband, and the child gets one-third of the movable estate, whereas the Bill provides that the widow shall get one-third of the life interest of the estate and the child one-third. I do not think that sufficient stress has been laid by those who have supported this

  1671
  Bill on the example of other countries. If we see that the principle has been adopted in other countries, has worked well, that no complaint is made and no suggestion is put forward that the principle should be abandoned, I think that we in this country can go forward with some boldness.
  My hon. Friend opposite, who spoke of his experience as a solicitor, referred to the debate that took place in the House of Lords in 1928. Lord Astor on that occasion put forward a very strong case from the point of view of what had been done in other countries. My hon. Friend opposite read a provision in New Zealand with regard to the matter we are now discussing. He might have gone on to point out that the law is the same in Victoria, in Queensland, British Columbia, and New South Wales. In all those countries the principle has been adopted of securing a definite provision for the widow and child after the death of the testator. It has been in existence in New Zealand since 1895, and in Victoria since 1915, and no suggestion has been made that in those countries it has broken down.
  Mr. LLEWELLYN-JONES: Of course, the provision in New Zealand and the other Colonies is entirely different from the principle in this Bill. If this Bill had been on the lines of the New Zealand law, it would have been entirely different.
  Mr. LOVAT-FRASER: I was going on to speak of that. A definite provision is fixed by the Bill. In the Colonies it is left to the courts, when application is made to them, to consider all the circumstances of the case, to consider the character of the people before them, and to keep in mind, for example, the question of whether the husband and wife have lived together. They are not tied down as in this Bill to give one-third or one-half, as the case may be, but the principle has been worked there and has been successful. The supporters will be quite prepared, no doubt, when the Bill goes to Committee, to consider Amendments that would relax the rigidity of the Bill, and approximate to the law as it exists in the Colonies. Reference has been made by my hon. Friend opposite to the interminable litigation which he anticipates if this Bill be passed. The hon. Member comes from Wales. The
  1672
  Welsh people are litigious. For many years I was a barrister on the South Wales Circuit, and ought to know a bit about the Welsh. But even in the case of the Welsh, litigious as they may be, surely it is going too far to talk about interminable litigation.
  Mr. MORRIS: I also am a member of the Circuit. My experience is that the Welsh are not litigious enough.
  Mr. LOVAT-FRASER: The answer to many of the criticisms brought forward is that the principle has worked well in Scotland and other countries. In Scotland, I am aware that the provision for wives and children may be defeated by marriage settlement, but how many marriage settlements are made by the class who would be principally affected by this Bill? Marriage settlements are confined to the well-to-do, and the vast majority of people who would be affected by a Bill like this are those of the middle-class, the man who has started business with his wife, who has worked up a business to a state of prosperity, and then, in old age, dies and leaves the woman, who has helped him to make his money, stranded and without means. That is the kind of person who would be affected, as in Scotland.
  Then we are told that there are hardships in existence that will not be covered by the Bill. Of course there are, but two blacks never made one white, and surely the fact that there are hardships that will not be covered by this Bill is no reason for not relieving other hardships that will. Let the House follow the footsteps of the Colonies and sister countries, and reduce the amount of suffering which is the result of selfishness and tyranny on the part of husbands. Like the hon. Lady the Member for Blackburn (Mrs. Hamilton), I am glad to support this Bill on broader grounds than the mere provision for children. This is part of the movement for levelling up the position of women to something on a par with the position of men. During the last few generations we have seen a series of Acts of Parliament designed to put women on to something like a level with men. When I hear people talk about the sanctity of family life and how prosperity is built up on it, I receive it with no great enthusiasm. When I think of the Victorian father who compelled all to administer to his

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  comfort and welfare, I do not find that I am excited when people talk about the sanctity of family life, and so forth.
  I do not know how many hon. Members of this House have seen a very admirable play now running in London, but, if they have not, they should go and see it. I refer to "The Barretts of Wimpole Street," a play based on the love story of the Brownings. A Victorian father keeps his whole family in subjection by the dread of being disinherited. It is a story founded on fact, which occurs over and over again in Victorian literature. It is the selfish and tyrannical father who holds the dread of disinheritance over wife and children with which we want to deal by this Bill. This Bill is a step towards raising women to something like a level with men, and I am very glad to give it my support. I have always been a feminist. Very early in life I came to the conclusion that in this world women get the hot end of the poker. I have all my life tried to support measures which would make life better for women, and I am very glad of the opportunity of supporting this Bill.
  Major LLEWELLIN: I could not quite follow all the reasons why the hon. Member for Lichfield (Mr. Lovat-Fraser) supported this Bill. He seemed to support it largely because he had read of instances in books in which a Measure such as this was very necessary, or because he had been to a particular play now running in London, in which the father depicted in the play, apparently, did something with which this Bill deals. It seems to me that those are no good reasons for supporting this particular Measure. The hon. Lady, who so eloquently moved the Second Reading, referred to a, few hard cases. She said, of course, that it might be said against her that hard cases made bad law. That is no reason at all why the law should not be made good to meet the hard cases, but it is every reason why you should not make the law bad for the majority of cases by trying to make it meet a few hard cases.
  My chief objection to the Bill as it is drafted is that it will not apply to all the bad cases which the hon. Lady has in her mind, but will apply so as to affect every case in which a will is made and
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  by which property passes by will. Every case will have to be taken in some form or other to the courts, and the Bill will be a perfect gift to the Chancery barrister. There is hardly a case in which the executors, in order to be on safe ground, will not have to go either to the Chancery Court or, in the case of small estates, to the County Court. Even the contracting-out provision has for some reason which has not been explained to be confirmed by the court. If these wills are signed by people of full age, it is unnecessary to go to the courts in a case like that. In order to give effect to any marriage settlement at all—because the marriage settlement cannot be taken into account by the executors under the terms of the Schedule—application again will have to be made to the Chancery Court.
  1.0 p.m.
  We all appreciate the views which the hon. Lady for Blackburn (Mrs. Hamilton) expressed, that marriage should be, as she termed it, comradeship, co-partnership and companionship, but another "C" is being added to the Bill, because it is being crowned by the court. Although the marriage may have been happy and companionable, the executors will now probably have to go to the court even in the case of perfectly justifiable wills. That is why I object to the Bill. The right way of dealing with this problem is by some such measure as Clause 9, under which the parties can apply to the court, as apparently they do in New Zealand, where only the hard eases bring their points before the court within a certain time and an adjustment made. If the Bill be passed as it is, what is the position of the executors under it? They are put in a perfectly impossible position. They have to supply a certain sum of money under paragraph (3) of the Schedule, and they have to make an estimate of the amount of money that will be brought in by any security at any particular time. That is an impossible task for any executor to undertake. The second point about the executors is that, in order to pay these sums to the widow, their job goes on for a considerable number of years until the widow or the widower dies. They cannot attempt to wind up the estate, and it is the worst thing for anybody who will inherit under an estate to find that the estate is bound to go on in the executors' hands, as it would seemingly have to do

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  under this Bill, until the death of the surviving spouse. I want to draw particular attention to Sub-section (4) of Clause 1:
  "All sums by this Act required to be set aside and held in trust by the personal representatives of a deceased person shall be invested by such personal representatives in investments in which trustees are for the time being authorised by law to invest any trust funds in their hands."
  Have any of those who support this Measure really considered what effect that will have on a large number of the smaller estates? Take the case of the small farmer to which the hon. Member for Flint (Mr. Llewellyn-Jones) referred. Under this Bill, after his death his capital cannot be kept in any form of stock; it has to be sold and invested in some trustee security. Take the case of the small family business which has been going on for years, and has passed from father to son. Under the Bill, a great part of the shares of that business will have to be sold and put into trustee stock, and if the business has not an excessive amount of capital, which may well be the case, it will be ruined because of the terms of this Measure. And yet, if there is not some such provision as this, the whole of the capital will have to be in the hands of the trustees for years, because, unless the funds are in trustee securities, it is not possible to know how they will vary from year to year, and what proportion the trustees will be liable in law to pay over to the surviving spouse. Therefore, you are on the horns of a dilemma. You either ruin the business, as you probably would under the Clause, because it would have to be sold up; or you would carry it on and keep the whole of the estate in the hands of the executors for some years.
  This Bill approaches the matter from the wrong angle. We all want to see some method which will deal with hard cases, but we do not want to bring in other hardships by measures to meet hard cases. I should like to see a short simple Bill which will allow, within six months of a death or the proving of a will, any dependants, either spouse or child of the marriage, to apply to the Court to get a certain proportion of the income of the estate, laying down, if you like, the limits as you do in this Bill. The executors will appear, and the Court
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  would take into consideration all the matters affecting the relationship of the parties to the estate they have to administer, and will make the order which would absolutely meet any hard case. Under this Bill, however, you would get a tremendous number of applications to the Court, and that ought to be avoided.
  Mr. SCOTT: I rise as a Scottish lawyer to support this Bill. I might also say that I support it as a married man in view of the number of bachelors and spinsters who have spoken on it. I dissociate myself from the views expressed by my colleague the hon. Member for Flint (Mr. Llewellyn-Jones). I hope that his views do not reflect the views of the Liberal party as a whole with regard to a Measure of this sort. The House should be encouraged by the knowledge that for hundreds of years in Scotland the principle of law which is attempted to be enacted for England has prevailed in Scotland, with most beneficial results. There has been no stream of interminable litigation with regard to the legal rights of spouses and children, and I certainly do not anticipate that there will be such a stream of litigation, even in Wales, if the Bill be passed. I shall endeavour not to betray any feeling of superiority which I may feel in view of the fact that this has been Scottish law for so long. We may well be flattered that England is now endeavouring to copy the Scottish law, but it is depressing to find this worthy attempt at reform being opposed in speeches which seem charged with the spirit of the dark ages.
  There has been no end of criticisms directed to aspects of particular Clauses, but I would have urged the Solicitor-General, if he had been in his place, not to be influenced too greatly by difficulties which are purely Committee points but to support the Bill on the broad principles of justice. The provision for a surviving spouse with children in Scotland is, of course, founded on the Roman law. The Roman lawyers were wise men, and Scottish people were well advised when they adopted Roman law. The principles of Roman law imbibed by the Scottish people are founded upon inherent justice, and inherent justice has always found a ready response in the Scottish people. I do not believe it will be suggested that it was in some spirit of chivalry towards women and

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  children that this principle found its way into the law of Scotland. I should have thought the English people had been more likely to imbibe the sentiments of chivalry than were we in Northern Scotland, but the principles of law in England are in a more backward position.
  It is suggested that the rights of the individual would be assailed. That has not been our experience in Scotland. A freer-minded people than the Scottish people you will not find and this Bill no more infringes the principles of individual liberty than does the law which provides that a man must not drive a motor car when he is drunk. There is only one point on which we cannot pride ourselves that we are superior to the English in the law of succession. By the Law of Property Act, passed in 1925, England abolished the principle of primogeniture, which still is a blot upon Scottish law; and although I object to political deals of any sort I shall almost be tempted to suggest that if we support the promoters of this Bill they, in turn, ought to support us when we ask that the principle of primogeniture shall be removed from the Scottish law.
  There has been a good deal of talk about litigation and lawyers. I suggest that people should be discouraged from deliberately dying intestate. I think they should not scorn the mercies of Providence, which is rather a euphemistic way of describing lawyers, because in a great many cases expensive litigation after a man's death has been saved through his having been wise enough to spend a few guineas during his lifetime on a fee to a lawyer for making his will. One can picture a man going to his lawyer after this Bill has become law. The client, on entering the lawyer's chamber, will be told that the law now requires that he must put out of his mind any ideas of revenge or hatred against his children, or spite against his wife, or carelessness of his legal obligation, because the law has said that no matter what his wishes may be he must allow so much of his estate to be set aside for the benefit of his spouse and his children. Our experience in Scotland has been that since it has been recognised that a surviving spouse and surviving children have inherent rights in the estate of the husband and father testators have made their wills accordingly.
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  So many references have been made to Scottish law that I should like to read a few sentences to show what provision has been made in Scotland. Like other Members I have received a. leaflet entitled "The power of testamentary disposition", but I find in it no reference to Scottish law. Whether the writer is unaware that there is such a place as Scotland, or is unaware of the beneficence of Scottish law in the matter of succession, I cannot tell, but it seems to be very necessary that I should remind the House of what the four provisions of the law of Scotland are. The children are dealt with by what we term in Scotland legitim. Legitim is a legal provision due to the children from the movable succession of a father or mother. The claim is for one-third or one-half of the free estate, and it is divisible among them equally. The father has not the power of restricting the legitim of a child to a liferent or limiting the destination of the legitim in any way, not even for reasonable cause, such as the bankruptcy, incapacity, or misbehaviour of the child. The power of doing so, desirable as it is in some cases, can only be obtained by the exclusion of the right to legitim in the father's ante-nuptial contract or by a subsequent discharge of the claim. That is the provision with regard to children.
  Then with regard to jus relictae, that is, the claim of the widow upon the husband's estate. It is a legal provision accruing to the widow of a person dying domiciled in Scotland out of his movable or personal succession, amounting to one third of the free succession, or one half where there are no surviving children, and it is independent of the husband's testamentary provisions, though, like legitim, it may be renounced by contract or satisfied by equivalent provisions. The rights of the husband in the widow's estate are similar.
  There is a further right which the widow has in the husband's real or heritable estate which is called terce. Terce is a liferent of a third part of the heritable estate accruing to the widow. It is grounded upon the obligation incumbent on a landed proprietor to make a reasonable provision for his widow suitable to his circumstances and condition of life. The right vests absolutely by survivance and cannot be defeated by any act of the husband to which the wife has no

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  assented. It seems to me to be necessary that the House should understand what is the nature of those rights in Scotland. My own view is that a number of Amendments will be necessary in the case of this Bill, but that ought not to prevent the House from giving the Measure a Second Reading.
  I doubt whether it is an improvement on Scottish law to regulate the amount of succession by the private means or spouse or children, and I am afraid that this will not conduce to family concord after a death. I agree that it is an improvement not to copy the outlandish legal terms used in Scotland such as widows' terce and jus relictae. The hon. and gallant Member for Oxford (Captain Bourne) stated that the kind of wills which had been described by the hon. Member for the English Universities (Miss Rathbone) were relatively very small, but in my view they are numerous enough to warrant this House giving the Measure a Second Reading. It was suggested by the hon. and gallant Member for Oxford that there should be as little interference as possible by the State with arrangements made between husband and wife. The usual practice has always been for a certain limited amount to be put aside for the widow and the children, but the Statute should be so arranged as to give the benefit to the widow of any increased income which her husband desires to make. The hon. Member for Ecclesall (Sir S. Roberts) quoted the form of a simple will under which a man leaves all his estate to his widow—
  Notice taken that 40 Members were not present; House counted, and 40 Members being present—
  Mr. SCOTT: One criticism levelled against this Bill was that it was not unlike the Colonial precedent in regard to the rigidity of its provisions. I am entirely in favour of rigidity in these matters, and I have found from experience in Scottish law that it is no drawback that the rights of children are perfectly rigid. If we desire to prevent litigation, then it is right for the State to adopt a rigid principle. That practice has worked well in Scotland, and I
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  think the promoters of this Measure have done well in going to Scotland for their analogy.
  Miss PICTON-TURBERVILL: I welcome this Bill because it provides that a widow cannot be left absolutely penniless. Surely it is very unfair that, while a poor man has to provide a certain amount for his widow, a wealthy man is empowered to leave his widow entirely penniless. In this case the rich man is allowed to do what the poor man cannot do. Week by week the insured worker must pay in by law to secure a pension for his widow. In spite of all the legal technicalities to which we have listened in this Debate, surely the issue is a simple one which will appeal to anyone as being right and just. Is the law to be equal as between the poor man and the well-to-do? The hon. and gallant Member for Oxford (Captain Bourne) said that there were not many people who suffered under the law as it now stands, but surely we want the law of England to be just, whether those who suffer from the injustice are few or many.
  There is another very important point which, up to the present, has been entirely omitted from the Debate, and it is that the widow of a rich man may not only be left quite penniless, but the husband can continually use threats during her lifetime to leave her penniless. Consequently, many women have to suffer not only by being left penniless, but also by the threat held over her head of leaving her penniless. That is a condition of things which does not affect the poor man. The hon. and gallant Member for Oxford has once more raised the old cry about interfering with the liberty of the subject. We have heard that argument very often, but there are circumstances in which it is necessary that liberty should be curtailed. Good people will not be affected by this Measure at all, and it will remove an injustice from which many suffer.
  It has not been sufficiently emphasised that the provisions of this Bill are exactly the same for the wife as for the husband. Hon. Members throughout the debate have been speaking as though the Bill operates on the husband only, but equally the wife is compelled to leave a certain amount to her husband, as the husband is compelled to leave a certain

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  amount to his wife. It may not so frequently happen that the husband is dependent on his wife, but I call to mind the case of an acquaintance of mine, a widow farming a very nice little farm. After she had been a widow for some long period, and had become quite elderly, to the surprise of everyone she married a young man—quite a tramp. They lived together happily for two years, but after two years she got tired of him, told him to leave the farm, and turned him out without any money; but immediately the board of guardians came down on her, and she had to support him. Therefore, it is the case that the wife has to support her husband in certain circumstances, as well as the husband supporting the wife.
  Less than two years ago a deputation waited on our present Prime Minister on the subject of this Bill, and I would like hon. Members to hear what he said to that deputation:
  "Mr. Ramsay MacDonald, in his reply, said that if a man had married a wife and that woman had associated her fortune, her name and her fate with him for many years—and vice versa—that a man had no right, under the most extreme conception of individual right, to make provision by a will that when he dies that poor woman is going to be bundled out into the streets. The frequency with which this thing happened, he added, was sufficient to compel them to do what they could, and legislation was required to change the law in this respect."
  The right hon. Gentleman the Member for Carnarvon Boroughs (Mr. Lloyd George) was also interviewed by a deputation, and this is what he said:
  "Mr. Lloyd George agreed that the present position was a monstrous one, which should not be allowed to continue, and said that he had seen cases in which a woman who has helped to build up her hushand's business has been deprived in this cruel way of a fair share of the property she had helped to create."
  I should like to call the attention of the House also to the fact that the criticisms of this Bill to-day contradict one another. The hon. and gallant Member for Oxford said that the cases were so few that it was not worth while to pass a Bill to provide for them, while the hon. Member for the University of Wales (Mr. E. Evans) said that there would be so many that they would lead to endless litigation. I do not think that a single sound reason has been given to-day why this Bill should not be passed. There may be a few technical difficulties, but lawyers will always bring forward difficulties with
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  which they hope to frighten the layman. These difficulties can be done away with or straightened out in the Committee stage, and the lawyers can have a fine time in doing so, but, as a simple issue of what is right and wrong, I commend this Bill to the House and hope it will receive a Second Reading.
  Mr. MACQUISTEN: This is one of the instances of an attempt being made to arrive at a solution of a difficulty in an extremely muddle-headed fashion. The hon. Member for Lichfield (Mr. Lovat-Fraser) showed what was really working in his mind. He said that he had always been a feminist, and the trail of the feminist runs right through this Bill. It is a pity that that is so, because they are not too amiable persons. I always think that those who look at things from the point of view of sex instead of as individuals are not very amiable. The whole Bill is redolent of that. It will be found that the Bill always speaks of "his estate"; there is never a word about "her estate." I suppose that the Interpretation Act puts that right—
  Miss RATHBONE: Yes.
  Mr. MACQUISTEN: Nevertheless, it is there, and it seems to me that there might have been just a little indication that sometimes unjust wills are made by wealthy wives, and it would be quite possible for a young man to be, perhaps, taken away from his business in order to be more or less a plaything at home, and then be cast out without any money. One recalls a remark of the late Poet Laureate, Lord Tennyson, about a farmer who said to his sons, "Don't 'ee marry for money, boys; you can borrow far cheaper."
  Mr. LOVAT-FRASER: That was not what he said.
  Mr. MACQUISTEN: That is one of his statements. Like some hon. Members who have spoken before me, I consider that there are two points of view, that of individual money and that of family money. I am a supporter of the second. I think that if a man has a wife and family, his property is not his own; he is the head of the clan; and in Scotland, in any case of reducing or setting aside a will, you will always find that, if there is any provision which leaves his estate outside his family, the jury will reduce that

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  will and leave it to the operation of the ordinary law, which they know will be just. Every juryman thinks that the same thing might happen to himself, and he does not approve of it.
  I go further than the law of Scotland. I believe that in France they have what is called a family council, and if a man at the age, say, of 65 is beginning to get skittish, and they think that some fascinating young woman may get hold of him with a view to getting his estate, they can call a family council and take possession of him and give him a reasonable allowance. That is, perhaps, a very wise provision, and if it were in force here, we might not see so many spectacles of these giddy old goats going about to night clubs.
  This Bill is badly drafted, and its notions are a complete muddle. I noticed that the hon. Member for Lichfield spoke about "notions", but we really ought to have a measure that is likely to do some good. I suggest that this is not the law of Scotland. The law of Scotland is as laid down by the hon. Member for Kincardine (Mr. Scott), who read the Clauses. Why should not a short Bill be brought in to say that the law of this matter shall be the law of Scotland? There you have the whole thing provided for, and there would be no quarrels in a Select Committee upstairs, going on for months, with all sorts of troubles, because these legal rights have been inquired into in the Scottish courts for centuries and have been decided, and there is no difficulty in administering them.
  One of the almost wicked Clauses in this Bill makes one think that this is really a conspiracy with the Treasury. The rights in the case of these small estates—and most of them will be very small—are confined to a life interest, that is to say, practically only a few shillings a week, and, as one hon. Member pointed out, the money must all be put into trustee securities, and all the costly machinery of a trust has to be raised for the purpose of administering a sum of, perhaps £2,000. The thing is quite non-sensical. What is wanted is the Scots law, under which the children get one-third of the estate, the deceased has the right of disposing of one-third—which is
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  called the "death's part"—and the wife gets the other part. The children do not share in the rent of the testator's heritage, and sometimes, though it very rarely happens, the testator invests the money in heritable property, whereby the children are deprived more or less of their legal rights because they cannot claim upon that; but he cannot defeat the widow. The wicked thing about this provision as to a life interest is that the widow, or even the children, may be fairly advanced in years, and may only draw the life rent for half-a-dozen years or so and then die, when the Treasury takes Death Duties a second time on the property. Therefore, as I have said, one would almost think that this Bill is really inspired with a view to giving the Chancellor of the Exchequer a further opportunity of plundering the dead. The widow might spend the capital, and there would be nothing for the child. It is all very well, when people have large property, especially landed property, to provide that they should be continuing estates, but do not tie it up so that it all gets down to the grandchildren.
  I believe a man should not be entitled to leave his fortune away. His mental faculties may decay, and he may wander, though he may not be sufficiently mentally deranged that his will may be set aside. He might even become a subscriber to one of those bodies mentioned by the hon. Member for Lichfield dealing with animals, which are very largely endowed by old women who hate their next-of-kin or who lavish their thwarted affections on dumb creation. These wills are very often, and very rightly, set aside. I should like to see family estates preserved. It is one of the great measures that Mussolini has adopted in Italy. He has repealed all the Death Duties on family estates, because he says that, when the breadwinner and the head of the family is taken away, it is very cruel that the State, which ought to protect and not to plunder, should come along and say "Just because you are dead we are going to take a large share of the fruits of your efforts and make your children poor." The injustice that might arise out of this provision is monstrous. I knew of a man who died in December, 1919, with an ostensible estate of £180,000. The slump came in March and April following and, before his Death Duties could be paid, the estate was not worth

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  £10,000. There are innumerable cases of that kind. Family money should be family money and should be kept among the family, and it should be their own and the State should have as little right to interfere with it as the strangers that it is sometimes wrongfully bequeathed to.
  I say to the promoters, "Take away this troublesome Bill." It will lead to litigation. Even with regard to Clause 6, its authors do not know what valuable consideration is. It may be a £10 note. It does not seem a great deal, but, if you lose it, it is. £5 has been decided in a court to be a large sum of money, and so it is if you drop it in the street. What does the leave of the court amount to? In Scotland we have the power to exclude legal rights by ante-nuptial marriage contracts. The vast majority of people who will be affected by this, when they are starting married life and getting their furniture sent them in a plain van, are not in a position to go to solicitors and get an expensive marriage contract, but those who are wealthy have them, and they can exclude legal rights. They do not need to go to the court at all. Here you have to go to the court. Husband and wife and grown up son cannot sit down and make a bargain, as is often done in Scotland. The son will come to the father and say, "I am going into partnership. I have a claim on your estate. Will you advance me so much to buy a partnership?" The father says, "If I do that, I am diminishing your brothers' and sisters' shares of the estate, but, if you will discharge your legal rights, I will give you so much." What nonsense to say you must go to the trouble of employing a solicitor and instructing counsel and going before the court at an expense of 100 guineas or more.
  I wish hon. Members would disabuse themselves of the idea that the legal profession is out to make business. This House of Parliament has always created an immense amount of litigation. It is our fault—the fault of the Statute law. Customary law is always the best, because it fits you in the same way that your skin does, whereas Statute law is like your tailor and very often results in a misfit. We do not promote it for that purpose. Every solicitor knows that the less he gets his clients into court the more likely he is to keep them. Even
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  counsel, as a rule, if he knows his business, does not allow litigation to go forward unless it is pretty much a certainty. Here the whole thing bristles with applications to the court. I suggest that there is a method of reaching the result that is obviously aimed at in a natural and wise way. It is quite simple to bring in a short Statute assimilating the law of England to that of Scotland, where it has been decided down through the centuries, where there is no difficulty and no litigation and no means of application to the court, because it has all been decided long ago. No one here could possibly object to it.
  I object entirely to this being put forward in the name of an Act of Parliament. You need only say that the obligation which is upon a man when he is alive to support his wife and children shall continue when he is dead, if he has anything with which to support them. There is no difficulty about it. It would only be in cases where he had denied that that it would be necessary to apply to the court. There has been nothing like this monstrous bundle of machinery since the elephant met the partridges that had lost their mother and said, "Poor little birds, I will be a mother to you," and sat down upon them. This is going to sit down upon the small testator and the small estate, saddle them with a life trust, take away the capital when they need it most, and do a wrong to the people whom you are trying to benefit. The Bill is so radically unsound in its working out that I ask the House to reject it.
  The SOLICITOR-GENERAL (Sir Stafford Cripps): I am afraid the position of the Government as regards this Bill is a difficult one, because it was only printed on Saturday. It is a Bill of very far-reaching consequence which needs close attention and examination before the Government could give the House any definite advice one way or the other. But it might perhaps assist if I draw attention to certain aspects of it. The speech we have just heard was perhaps rather a strong one, and to some extent has exaggerated the difficulties that the Bill might bring about. No doubt, the hon. Member, in his loyal faith to Scotland, feels that nothing better could happen in England than the adoption of the Scottish system. But it must be borne in mind

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  by the House that the Scottish system fits the Scottish law as regards real property, and it does not necessarily fit the English system of law as regards real property.
  I think, from what has been said by various hon. Members, that it is clear that there is some feeling in the House that some injustice exists in certain cases. If that be so, I presume that the House would probably desire, if it were possible and practicable, to correct those injustices, but you have to bear in mind that by introducing a particular method of correcting an injustice you may, at the same time, create worse difficulties than you are attempting to cure. There have been, of course, in the law relating to wills two widely different principles which have been adopted in different countries. There is, first of all, the principle of freedom of disposition of property by the deceased which, anyway for the last 100 years or more, has been the principle adopted in this country, and there is the second principle that the deceased or the deceased's estate shall retain some liability for the support of the wife and the children. As I appreciate the views which have been expressed, there is not so much difference as to which of those principles should be adopted, as to the method by which the second principle should be carried out. One must, however, remember that when there has been established in any country for a long period of time a particular system of law which all the inhabitants of the country are under, and of which they understand the working, one cannot lightly set it aside unless a very strong case is made out for hardships occurring under it.
  There has been, possibly, some confusion as regards the exact scope of the present Bill. As I read the title of the Bill, it is one to
  "Secure that proper provision be made for the surviving spouse and issue of a deceased person."
  I do not think that that would necessarily preclude an alteration in Committee of the precise system which the Bill proposes to adopt. Something has been said as regards the Act of 1925, which dealt with cases of intestacy and estates where there were no wills. The House must clearly understand that that problem was, entirely and absolutely, a different one from the present problem.
  1688
  In that case, the Legislature assumed that where a testator had not made a will he would probably have acted in the way that an ordinary and prudent testator would act and would have made that provision. That is to say, it being known that in the great majority of cases the testator made wise provision for his wife and family, the law was altered so that in the case of intestacy it would be presumed that such a thing had been done. When you come to deal with the case where a will has been made you deal with a very different state of circumstances, because there the testator, whether wisely or unwisely, has specifically expressed his desire. In this Bill you are not dealing with an assumption of what the testator would have done had he made a will, but you are dealing with a case where he has made a will, and you are going to say, if the Bill is effective at all, that he ought never to have done it, and set aside that which he has done.
  When one comes to examine that problem, there are two distinct ways of approaching it. There is, first of all, the Scottish way, which has worked extremely well, I understand, in Scotland. It has caused very little difficulty. The fundamental basis of that system, as I understand it—I understand very little of the Scottish law—is that the courts have no power at all to interfere with the legal right of the wife and children. That is a method which one can understand as being a practical method. It may in some cases possibly lead to undesirable results, but it has this very valuable attribute, that it gets rid of any possibility of these matters being discussed in court. On the other hand, you have what has been referred to as the Colonial system which is used in a great number of the Colonies at the present day and which gives the court a paternal jurisdiction in cases which are proved to be hard cases and allows special provision to be made in those cases. That also, obviously, has its advantages, because you are only then going to the court in cases where an injustice can clearly be proved to have occurred.
  The Bill, it seems to me, takes what may be described as a dangerous middle course. You are attempting to lay down by law that the wife and children have certain rights, but, on the other hand,

  1689
  you are giving the courts power to annul those rights, if facts of a certain type set out in the Bill are proved to their satisfaction. It is difficult to imagine any better way to create litigation, and also to create ill-feeling, perhaps after a man has died, than to give the courts a roving commission to set aside what his dependants believe to be the law. One has, therefore, carefully to examine the Bill to see whether the middle course which is proposed is a course which will not in the long run create more unhappiness, discord, and litigation than the present course which is adopted.
  In saying that, I do not wish in any way to suggest that, if the House is satisfied that a case of real hardship has been made out, it should not adopt some method by which it should be got rid of. I should like to remind the House of one thing with reference to the Bill, that as regards the poorer classes, who, of course, probably do not make wills in many cases, they have already been dealt with by the Intestacy Act. On the other hand, if a poor man should have the misfortune to make a will after the passing of the Bill and should not leave the money to his wife and children—perhaps living with an aged mother to whom he desired to leave what little he had—the estate would almost undoubtedly be swamped in legal costs. The provision that the case can go to the county court is a provision which would make the costs upon an estate less severe, but even if it went to the county court, in the case of a small estate, there would probably only be a small proportion left for division among the rest of the family. I think that the whole Bill undoubtedly encourages litigation. It is very pleasant to hear so many members of the legal profession denying that they want in any way to encourage litigation. One knows very well that the legal profession are much maligned sometimes on that account. Anyone who has had experience of people who deal with family matters—solicitors—knows that as a matter of fact they always do what they can to avoid litigation.
  Miss RATHBONE: May I ask the Solicitor-General whether he is suggesting that there will be less litigation if the Colonial precedent is adopted of never allowing redress to the survivors unless they go to the court than under the plan suggested in the Bill that refer-
  1690
  ence to the court should only be necessary in a certain set of circumstances? Is that what I have to understand?
  The SOLICITOR-GENERAL: I am much obliged to the hon. Lady. My own view is that there will be less litigation under the Colonial system because there you will only be dealing with cases upon which the wife or children would be advised that they had probably a good case to go to the courts, whereas in the present instance you will be dealing with the very genuine cases in which other dependants think that under the circumstances it is unfair that this Act should operate. I think that probably, on the whole, although it is impossible to judge except, possibly, by the experience of the Dominions courts, there will be less litigation under the Colonial system.
  This matter was debated in another place on a Motion, not quite in the form of this Bill, to set up a committee to inquire into the matter generally. In that Debate three or four eminent lawyers took part, and I think the judgment which was expressed by those eminent lawyers ought to be taken into consideration by the Members of this House. Lord Haldane expressed the view that, although he was in sympathy generally with the advisability of doing something to alleviate hard cases, he did not think that in effect the hard cases were sufficiently numerous to make it worth while setting up a committee to inquire into them. Lord Hailsham and Lord Merrivale were quite distinctly against any inquiry being made into the matter. On the other hand, Lord Buckmaster thought that it was a matter which might well be inquired into. When one considers the opinions that were then expressed it does show that some caution must be employed and very full consideration must be given to the matter before any decision is arrived at upon it.
  It has been said by the hon. Lady that a Bill in this form is to be introduced into another place, very shortly. Perhaps before that Bill is introduced, in the light of the very useful debate which has taken place in this House, some alterations may be possible. I feel quite confident that if a Bill were introduced which had regard to the criticisms which had been made in this House the Lord Chancellor would then, in the light of this discussion, be ready to consider the matter and to de-

  1691
  cide whether it would be possible to give any facilities to it. In view of the short time which has been at the disposal of the Government to inquire into this very complicated matter, they do not feel themselves able to give the House any definite advice upon it.
  Sir JOHN WITHERS: I unhesitatingly approve of the principles of the Bill. From a long experience in these matters one has come to the conclusion that in most cases the testator does what is right, but in quite a number of cases, both of men and women, they do not do what is right. It is these exceptional cases which ought to be dealt with, and this Bill attempts to deal with them. Generally, people of wealth and position have always had marriage settlements, but nowadays marriage settlements are getting into disrepute. The younger people think that they are quite able to manage their own affairs, and they do not want trustees. The consequence is that marriage settlements are not now so numerous as they used to be. Moreover, the marriage tie to a certain extent is getting looser and married people are taking up a more independent line of their own, the woman apart from the husband and the husband apart from the wife and, consequently, owing to the absence of marriage settlements and the greater liberty of both spouses, this question is assuming, and will assume in the future, a much more important position than it has had in the past.
  2.0 p.m.
  Scottish law, according to all accounts, has worked very well. This proposed law is not so onerous to the person who proposes to make a will as the Scottish law. For instance, it assimilates land, real property, and personal estate. It does not give the children an out and out vested interest but only provides a life rent for them until they have finished their education or attained the age of 23. Therefore, so far from it being more difficult to run than the Scottish law, it ought to be easier. There are numerous difficult cases. I do not propose to go through them, but there are one or two which I ought to mention. There is, first, the question of contracting out. Contracting out before marriage could be done, no doubt, by a marriage settlement, that the spouses should each pro-
  1692
  vide for the other up to an extent which would practically be the equivalent of what they would get under the Act, but I do not think it would be right to allow the husband to be put in the position to say to the wife: "I will give you so much, and I want you to give up all your rights to property which you might have under the Act." I do not think that it would be fair to put the wife in the position of having that pressure brought to bear upon her by the husband.
  Mr. MACQUISTEN: Would not that be considered to be a donation as between husband and wife which would be irrevocable?
  Sir J. WITHERS: That would undoubtedly be binding, in the absence of the provision for getting relief from the court. Whether it was done under pressure or threats or by fraud which would enable it to be set aside by the court, is another matter. There is another point to consider. The case has been quoted of a farmer who was carrying on a farm and who left the farm to the widow for life, and afterwards to the children. It has been said that the Bill would make that practically impossible. I do not see why that should be the case. The wife gets more than she gets under the Bill, and the children have only to be provided for up to the time when they have finished their full-time education, or to the age of 23, whichever event first happens. Therefore, all that would happen there would be that the wife would have to set aside sufficient money to complete the education of the children, if they were not already educated, and to carry on just as they would otherwise.
  Sir DENNIS HERBERT: She would have to go to the Court.
  Sir J. WITHERS: I do not quite follow that.
  Sir D. HERBERT: The Bill says so. Am I not right? The suggestion is that in this case the will, by leaving the farm to the wife for life, with remainder to the children, gives benefits which might be taken to have satisfied those benefits which are given by the Bill. They can only exclude the operation of the Bill if the Court so decides and says that

  1693
  the Bill is not to operate, because the provisions of the will are taken to be satisfactory.
  Sir J. WITHERS: I should have thought that the greater included the less. The whole estate given to the wife for life is surely larger than one-third given to her for life, and as far as that is concerned it could be done without going to the court. I agree as regards any variation to set aside money for the education of the children; I see the hon. Member's point about the rights of life interest, but, on the construction of the Bill, I do not think he is right. There are, no doubt, many difficulties. Nobody can draw a Bill like this without having innumerable cases of difficulty. The Bill has been drafted by an eminent Parliamentary draftsman and certainly, as far as it goes, it represents the considered views of the promoters. I hope the Rouse will allow it to go to a Select Committee where it can be considered. If the principle is admitted that something ought to be done then surely the right thing is to send it to a Select Committee, perhaps a Joint Select Committee, and that is the course to which I hope the Government will consent.
  Sir D. HERBERT: I should like to congratulate the hon. Member for the English Universities (Miss Rathbone) on the very careful and common-sense consideration which she has given to a problem obviously very near to her heart, and we must all sympathise with the particularly hard cases which have moved her to take up this question and to introduce this Bill. Let me say at once that if she had introduced a Bill on the lines of existing legislation in New Zealand and some other colonies it would probably have had my wholehearted support. I have tried my best to see whether I could reconcile with my conscience giving a vote in favour of the Second Reading of this Bill in order that the matter might be further thrashed out by a Select Committee, but I regret to say that I have come to the conclusion that this Bill in its present form proceeds on such entirely wrong principles that it would be a great mistake for this House to give it a Second Reading, and I hope after the very useful debate we have had that the hon. Member herself will at some future date introduce a Bill
  1694
  following the law in New Zealand and carry it through with triumphant success.
  The reasons why I think this Bill is drawn on entirely wrong principles may be stated briefly in this way. There are a number of hard cases, shall I call them of wicked testators, although I do not think they amount to 8,000 out of 8,000,000, or to 800 out of 8,000,000. But a Bill on these lines is going to cause much more trouble, I will not say hardship in the sense in which we have been dealing with these bad cases to-day—and also more expense in the administration of the vast majority of estates of deceased persons. You are going to cause trouble and expense in over 50 per cent. of ordinary cases of testators dying in this country in order to try and deal with those cases which are very much less than one per cent., of a testator who does something which is thoroughly wrong. The proper way of legislating to meet this evil is to legislate against the evil and not in such a way that you cause hindrance, trouble, anxiety and expense in 99 cases out of 100 where no alteration is required.
  Let me give an example of the extreme hardship which will be created by having a law in the form of this Bill. It is a somewhat similar case to that mentioned by the hon. Member for Cambridge University (Sir J. Withers). The case I suggest is probably more common than the case of the farmer to which my hon. Friend referred. It is the case of a business, a shop, in the country, run and worked by a man with the assistance of his wife and family. There are many such shops throughout the country which have been run for generations. They are very profitable businesses. The younger members of the family receive a very good education, go out into the world, and ultimately attain positions of considerable prosperity and success. Such a business may produce for the family up to £1,000 a year. These people are rich, they are the aristocracy of the village. But a business of that kind requires capital, and every penny they possess is in the business and probably during a great part of the year it is run on an overdraft at the bank. The father of the family, the owner of the business, dies. What happens? Under this Bill one half or one-third, or two-thirds, of the total valuation for Death Duty pur-

  1695
  poses of that man's estate, which means the business, has got to be raised, invested, and set aside, in order that the income may be dealt with in a certain way.
  The hon. Member for Cambridge University says that if that man has made a will by which he has left all that business to his wife for life and afterwards to her children, that no hardship is created because he has done the right thing; but it is perfectly clear in this Bill, as it is drawn, that its provisions are to take effect and to override the provisions of the will. The will tan only be brought into operation so as to shut out the provisions of this Bill by going to the courts; and directly you do that you are causing considerable trouble and expense in addition to the Death Duties, and you are probably causing just that extra amount of expense to that business which will ruin it and make an end of what has produced a really good and substantial living for a whole family for generations.
  Let me give another case where a similar hardship arises, in a rather different class of people, those who are accustomed to make marriage settlements or who ought to make marriage settlements. A young man marries with prospects of making a decent living, hut with no appreciable money of his own. He takes upon himself the responsibilities of marriage and he realises that it is his duty to provide for his widow and possible family in case of death. He manages to have sufficient money to produce an income that will insure his life fairly heavily. He makes a marriage settlement under which he settles substantial policies on his life and a sum of money sufficient to produce an income that will keep up the premiums on those policies. When the man dies, the result, in a, typical ease, is that there is from £10,000 to £20,000 falling in on his life policies and money that is settled, held in trust to pay income to his widow for life and then to divide the capital among the children. Is not that a perfectly proper and sufficient provision, according to the promoters of this Bill? What happens when he has done that? Is he thereupon to be relieved of any liability under this Bill? Is he allowed freedom to dispose of any other money that he has made and saved in his
  1696
  lifetime? No, certainly not. If, in addition to that provision of £20,000, he has made and saved another £10,000 he cannot leave that to charity or to aged parents or to badly-off brothers and sisters. The law comes down and says, "We must deal first of all with that £10,000."
  That is how the Bill would operate first of all. If someone grumbles that that is not fair, that someone can go to the court, and then under the provisions of the Bill, in regard to the £10,000, that £10,000 or the income of it may be taken as relieving the moneys under his marriage settlement. That is the wrong way. There is no provision for the man or his representatives to go to the court and to ask the court to say that because this provision is made, this Bill is not to take effect. Further than that, even if it is so, why should it be necessary that a man who has made such ample provision should have to go to the court and get a decision on a question of this kind? Why should it not be left that when that settlement is made on marriage and ample provision is made by insurance policies of that kind, the other party to the marriage, the woman, can agree by that marriage settlement, "I accept for myself and future children this settlement as a sufficient and proper provision for me, which is obviously in excess of anything I can get under that Act, and therefore the provisions of the Act should be excluded."
  This case only shows that there is more in the Bill than a mere case of difficulties or shortcomings or complaints which may be put right in Committee. The Bill proceeds on wrong lines in every single part. It is a paternal and grandmotherly scheme for managing the affairs of everyone, on the assumption that everyone, or 99 out of 100, do not know how to, or will not have the decency to, manage their own affairs properly. The proper way of legislating in a case of this kind is to leave the vast number of people who have got common sense and who do what is right, unhampered, and to make it unnecessary for them to go to the lawyers or to the court more than is absolutely essential to their well being—to leave them free from lawyers as long as they do what is right, and merely to legislate for those cases where a family is ill treated—to give them the right to go to the court and to give the

  1697
  court the right to interfere in the few cases where a man has not done his duty or has not behaved as a sane and reasonable person. Is not that the right way to proceed?
  Miss RATHBONE: I would like to ask the hon. Gentleman a question. I understand that his objection to the Bill is that it requires application to the court even in those cases where a perfectly reasonable provision is being made by the spouse, by agreement with the other spouse. Is it not the case that to require that agreement to be acknowledged as satisfying the provisions of the Bill there must be one of two things. The husband could contract out with the consent of the spouse, in which case the court is very unlikely to make any difficulty about it, or—
  HON. MEMBERS: Order, order!
  Mr. DEPUTY-SPEAKER (Mr. Dunnico): The hon. Lady is making a second speech.
  Miss RATHBONE: I am sorry, but I had just finished. Is it not the case that it would require only the cutting out of four words in one Clause of the Bill to make it unnecessary in cases of contract to go to the court? Is that too big a point for the Committee stage?
  Sir D. HERBERT: If I understand the hon. Lady's point, I can answer it shortly. I gather that she is suggesting that one of my objections could be overcome by allowing the parties to contract out without the necessity of going to the court. I can only say that if the hon. lady were to consent in Committee to a provision of that nature, it would nullify the Bill altogether. I am certain that everyone who was advised by a decent lawyer would take the precaution the moment he married, or the two parties to the marriage would take the precaution and agree, "We will shut out the operation of this Act." Therefore, with regret and after having tried most honestly to see whether I could not regard this Bill as capable of being reformed and altered in Committee into a Bill which would at least be harmless—I do not put it higher than that—I have regretfully come to the conclusion that, even with the greatest possible alteration in Committee, this Bill would create far greater hardship than would be commensurate with the evils that it remedied. I cannot ask the hon. lady to withdraw
  1698
  the Bill, but I sincerely hope that she will go no further with it, and that she will introduce and have an opportunity of carrying into law a Bill more on the lines of the Colonial law as it exists to-day.
  Sir BERTRAM FALLE: I think the point raised by the hon. Member for Watford (Sir D. Herbert) is an excellent one. It gives me great pleasure to hear hon. Members, both lay and professional, speaking so well of my own profession and I am gratified to find that it should be so universally known that no lawyer ever seeks litigation. It is many years ago since I practised and I know that such was the case then and I am glad to find that devious ways have not since been adopted in the profession. After the very lucid statement of the Solicitor-General the Bill is obviously dead. The Government will give it no facilities and, whatever may be the result in the Division Lobby, it is evident that the Measure will go no further. I hope that that consideration will not deter the hon. Lady the Member for the English Universities (Miss Rathbone) from bringing in another Bill, perhaps more on the lines suggested by my hon. Friend the Member for Watford. I do not know much about the law of Scotland but I know a little about the law from which it is derived and I think it would be a pity indeed to draft these new laws on to our old statute law referring to land in this country, whereas it might be comparatively easy to bring in some law on the lines of Colonial, or as I prefer to call it the Dominion law such as the New Zealand Statute about which we have heard.
  There are, it seems to me, blots on the Bill. I do not seen anything in it, and I trust there is nothing in it, which would make it retrospective. That of course would be too much for most of us. But a great deal of play has been made about putting rich and poor on the same level in this respect. My hon. Friend the Member for Cambridge University (Sir J. Withers) has suggested that marriage settlements are going out of fashion. If so, surely it is the fault of the people contracting the marriages. They have a very simple and easy way of securing not only their own future but the future of their children, and, if they will not act according to their

  1699
  own common sense, or according to the advice of their parents, or of their family lawyer, then it seems to me that, as they make their bed, so they should lie upon it. That of course does not apply to the poor person. There is one respect in which this proposal does not apply to the law from which it derives. The law from which it derives says that if a man has any real estate he shall not part with it unless he has the consent of his wife. Take the case of a man who has £20,000 worth of land. What that would be worth at the end of this year I cannot say but at any rate it would be worth something. A man at the present moment, unless he has a settlement, can deprive the wife of any share of it and it should be made quite clear, in the law, that before he parts with any land, in which his wife has a right to a one-third share, he should have consent and he should have the consent before the court passes the contract. If not this proposed law would be absolutely useless. Of course a man can get rid of money by throwing it out of the window as a good many of us have done, but he cannot throw the land out of the window. He can get rid of the land however by selling it at whatever price he can get and he has the opportunity of getting rid of whatever rights his wife may have. For these reasons I think it would be a good thing, and that the hon. Lady would be well-advised if she took this course, to bring in another Bill, possibly having first secured the assistance of the present Law Officers of the Crown or obtained some assurance that they would receive the Bill in a friendly spirit and grant facilities.
  Mr. HALL-CAINE: I would not have intervened had it not been for the speech of the hon. Member for Watford (Sir D. Herbert). It seems to me that England is very backward in regard to laws of this kind, and, if I may with all respect say so, the hon. Member for Watford, holding the views which he has expressed on this subject, had better not decide to live in the Isle of Man from which I come. He will find that in that island there is a very more aggressive law in existence than even the very simple and modest law proposed in the Bill, which he thinks is liable to do such great harm to this country. In the Isle of Man the law is that a husband has to leave to his widow
  1700
  exactly one-half of all he dies possessed of, and, after the funeral the will is read and if it is found that he has left less than one-half to the widow the solicitor asks her if she cares to object. If she does object, then she must have exactly one-half.
  Sir B. FALLE: Real and personal?
  Mr. HALL-CAINE: Yes, both. That law goes even further than this Bill and I am surprised at hon. Members objecting to the Bill because it is so very very modest in its proposals. I must admit that I have not had the opportunity of listening to all the speeches of hon. Members—
  Sir GEORGE HAMILTON: Has the hon. Member read the Bill?
  Mr. HALL-CAINE: Yes, I have read it. I was about to say that in the Isle of Man we have also a law whereby a husband cannot possibly sell any of his property without his wife's signature. He cannot buy any land or houses without getting his wife's signature, and therefore he cannot mortgage anything without getting his wife's signature. As in all these things we are so much more progressive than this country, I am surprised that hon. Members should object to the present Bill and I suggest that it is in the interests of this country that the Bill should be passed. The law to which I refer in the Isle of Man is well over 100 years old, and it has worked very well indeed. There is no reason why this Bill should not be passed. I hope that the House will give it a Second Reading and that we may even strengthen its terms.
  Mr. EDE: It must be a proof of the illogicality of our geography that the island which we have just heard described is called the Isle of Man, because, so far as I can see, the man is allowed to do nothing there by law except with his wife's consent. The same rule operates in this country, though it does not depend on the law, but on human nature, and those of us who are married are sufficiently aware of the common sense of the matter. If I thought this Bill would become law this year, I would not vote for it, but I propose to vote for it because I understand that the promoters desire to send it to a Select Committee, where the few grievances that do exist can be examined and we can get a basis on which a Bill to which the House might possibly assent can be drawn

  1701
  up and a better Measure presented to us for next year, or at some time when the ballot favours the promoters of the Bill again.
  There can be no doubt that there is a very limited number of cases in which the law requires some alteration. There was the case last year of the man who left to his wife only a pair of trousers, because, he said, she had always tried to wear them, and he thought she ought to have the opportunity after he had gone. I very much doubt if a man with a sense of humour so well developed as that
  would not find some way of getting round practically any Bill that was introduced in this House and passed; but there are injustices, I believe, that represent a serious problem for a few individuals, and if a Select Committee examines the situation and makes recommendations, it may well be that the House will be able to remedy those injustices.
  Question put, "That the word 'now' stand part of the Question."
  The House divided: Ayes, 149; Noes, 28.

  Division No. 163.]

  AYES.

  [2.39 p.m.

  Adamson, Rt. Hon. W. (Fife, West)

  Harris, Percy A.

  Phillips, Dr. Marion

  Alpass, J. H.

  Hastings, Dr. Somervllie

  Picton-Turbervill, Edith

  Ammon, Charles George

  Haycock, A. W.

  Pole, Major D. G.

  Arnott, John

  Hayes, John Henry

  Potts, John S.

  Atholl, Duchess of

  Henderson, Rt. Hon. A. (Burnley)

  Pybus, Percy John

  Ayles, Walter

  Henderson, Arthur, Junr. (Cardiff, S.)

  Ramsay, T. B. Wilson

  Baldwin, Oliver (Dudley)

  Henderson, Thomas (Glasgow)

  Reid, David D. (County Down)

  Barr, James

  Henderson, W. W. (Middx., Enfield)

  Richardson, R. (Houghton-le-Spring)

  Benson, G.

  Hennessy. Major Sir G. R. J.

  Romeril, H. G.

  Berry, Sir George

  Hills, Major Rt. Hon. John Waller

  Rosbotham, D. S. T.

  Bevan, S. J. (Holborn)

  Hirst, W. (Bradford, South)

  Rowson, Guy

  Bowen, J. W.

  Hopkin, Daniel

  Samuel, Rt. Hon. Sir H. (Darwen)

  Boyce, Leslie

  Horrabin, J. F.

  Samuel, H. Walter (Swansea, West)

  Brown, Ernest (Leith)

  Hunter, Dr. Joseph

  Sandeman, Sir N. Stewart

  Buchan-Hepburn, P. G. T.

  Isaacs, George

  Sanders. W. S.

  Buxton. C. R. (Yorks. W. R. Elland)

  Iveagh, Countess of

  Sawyer, G. F.

  Caine, Derwent Hall-

  Johnston, Thomas

  Scott, James

  Campbell, E. T.

  Jowett, Rt. Hon. F. W.

  Scrymgeour, E.

  Carter, W. (St. Pancras, S.W.)

  Jowitt, Sir W. A. (Preston)

  Shaw, Rt. Hon. Thomas (Preston)

  Charleton, H. C.

  Kelly, W. T.

  Shepherd, Arthur Lewis

  Chater, Daniel

  Kennedy, Rt. Hon. Thomas

  Shiels, Dr. Drummond

  Cocks, Frederick Seymour

  Kirkwood, D.

  Shillaker, J. F.

  Cowan, D. M.

  Lathan, G.

  Shinwell, E.

  Cripps, Sir Stafford

  Leach, W.

  Short, Alfred (Wednesbury)

  Daggar, George

  Lee, Jennie (Lanark, Northern)

  Sinclair, Col. T. (Queen's U., Belfst)

  Day, Harry

  Longbottom, A. W.

  Smith, Ben (Bermondsey, Rotherhithe)

  Duncan, Charles

  Longden, F.

  Smith, Frank (Nuneaton)

  Ede, James Chuter

  Lovat-Fraser, J. A.

  Smith, Rennie (Penistone)

  Edmunds, J. E.

  Lowth, Thomas

  Snell, Harry

  Edwards, C. (Monmouth, Bedwellty)

  Lunn, William

  Sorensen, R.

  Evans, Capt. Ernest (Welsh Univer.)

  McEntee, V. L.

  Strauss, G. R.

  Everard, W. Lindsay

  MecNeill-Weir, L.

  Taylor, W. B. (Norfolk, S.W.)

  Falle, Sir Bertram G.

  Maltland, A. (Kent, Favertham)

  Thomson, Sir F.

  Ferguson, Sir John

  Mander, Geoffrey le M.

  Thorne, W. (West Ham, Plaistow)

  Ford, Sir P. J.

  Marley, J.

  Thurtle, Ernest

  Freeman, Peter

  Mathers, George

  Tinker, John Joseph

  Fremantle, Lieut.-Colonel Francis E.

  Maxton, James

  Todd, Capt. A. J.

  Ganzoni. Sir John

  Messer, Fred

  Turton, Robert Hugh

  Gardner, B. W. (West Ham, Upton)

  Mills, J. E.

  Viant, S. P.

  George, Megan Lloyd (Anglesea)

  Morris, Rhys Hopkins

  Walkden, A. G.

  Glassey, A. E.

  Morrison, Robert C. (Tottenham, N.)

  Walker, J.

  Gossling, A. G.

  Mort, D. L.

  Wallace, Capt. D. E. (Hornsey)

  Grattan-Doyle, Sir N.

  Muff, G.

  Watkins, F. C.

  Gray, Milner

  Newman, Sir R. H. S. D. L. (Exeter)

  Welsh, James (Paisley)

  Grenfell, D. R (Glamorgan)

  Noel-Buxton, Baroness (Norfolk, N.)

  Westwood, Joseph

  Griffith, F. Kingsley (Middlesbro' W.)

  Oliver, P. M. (Man., Blackley)

  Wilkinson, Ellen C.

  Hall, G. H. (Merthyr Tydvil)

  Palmer, E. T.

  Womersley, W. J.

  Hall, J. H. (Whitechapel)

  Parkinson, John Allen (Wigan)

  TELLERS FOR THE AYES.—

  Hamilton, Mary Agnes (Blackburn)

  Percy, Lord Eustace (Hastings)

  Miss Rathbone and Sir John Withers

  Hamilton, Sir R. (Orkney & Zetland)

  Peters, Dr. Sidney John

  Harbord, A.

  Pethick-Lawrence, F. W.

  NOES.

  Acland-Troyte, Lieut.-Colonel

  Croft. Brigadier-General Sir H.

  Jones, Henry Haydn (Merioneth)

  Beamish. Rear-Admiral T. P. H.

  Davies, Maj. Geo. F.(Somerset, Yeovil)

  Law, Sir Alfred (Derby, High Peak)

  Bowater. Col. Sir T. Vansittart

  Gower, Sir Robert

  Leighton, Major B. E. P.

  Bowerman, Rt. Hon. Charles W.

  Hamilton, Sir George (Ilford)

  Lockwood, Captain J. H.

  Bowyer. Captain Sir George E. W.

  Herbert, Sir Dennis (Hertford)

  Macquistan, F. A.

  Cautley, Sir Henry S.

  Jones, F. Llewellyn. (Flint)

  Muggerldge, H. T.

  Nicholson, Col. Rt. Hn. W. G.(Ptrsf'ld)

  Roberts, Sir Samuel (Ecclesall)

  Ward, Lieut.-Col. Sir A. Lambert

  Pownall, sir Assheton

  Ross, Ronald D.

  Wardlaw-Milne, J. S.

  Rawson, Sir Cooper

  Russell, Alexander West (Tynemouth)

  Remer, John R.

  Simms, Major-General J.

  TELLERS FOR THE NOES.—

  Captain Bourne and Major Llewellin.

  Bill read a Second time.

  Resolved,
  "That it is expedient that the Bill be committed to a Joint Committee of Lords and Commons."—[Miss Rathbone.]
  Message to the Lords to acquaint them therewith.

  SOLICITORS BILL.
  Order for Second Reading read.
  Sir D. HERBERT: I beg to move, "That the Bill be now read a Second time."
  The House will remember that four weeks ago, on 23rd January, the House gave a Second Reading to a Bill which was introduced by my hon. Friend the Member for Cambridge University (Sir J. Withers), and considerable reference was then made to this Bill which I now have the honour to move. My hon. Friend the Member for Cambridge University and myself have the same object in view, and, therefore, we have agreed, as it appeared to meet with the approval of this House when his Bill was being discussed, that both these Bills should be referred to the same Select Committee, in order that the best Bill might be produced to achieve the objects which both of us desire to attain.
  The immediate reason of these Bills is that, during the last few years, considerable publicity has been given, and considerable attention called, to a number of cases in which, owing to the financial failure of and defalcations by members of the solicitors' profession, a number of persons have suffered considerable hardship. It is quite unnecessary for me to attempt to defend the profession to which I have the honour to belong. Members on all sides of the House were good enough, four weeks ago, to speak in sufficiently complimentary terms of the profession as a whole to make it quite unnecessary for any members of the profession to attempt any defence in this House against aspersions which do not exist in any responsible quarters. But where you have a profession consisting of some 15,000 persons, many of whom, I venture to say, would never have
  1704
  been members of that profession if the profession itself could control entry to it, where you have a profession of that number of which, subject to certain examinations, it is easy for a man to become a member, it must be inevitable that there should be a certain number of what one may describe as black sheep. As a result of the publicity which was given to these cases, a number of questions were asked in this House. It was quite obvious that public opinion was aroused, that there was a feeling that this matter of defalcation on the part of solicitors ought to be gone into, and that there should be at least some inquiry that would lead to Parliament doing something to mitigate the evil.
  I ought, perhaps, to give in very few words what happened within the profession when this agitation, as I may call it, first arose. The Council of the Law Society took up the matter immediately, and—to use the language of the present day—explored every avenue they could think of, to see how this matter could be dealt with. The Council of the Law Society came to certain conclusions, and were prepared to promote a Bill accordingly, but they felt—and, I think, felt rightly—that a Bill of the kind, put forward by leading members of the profession, ought to have the whole of the profession at the back of it, including the country solicitors. The country solicitors, of course, are in many respects somewhat different from London solicitors. They work under different circumstances, and very often have a very different class of practice. As a result of those differences, a difficulty arose in that some of the provincial law societies could not see their way to agree to the proposals which were put forward mainly at the instance of London lawyers, and that led us, to some extent, to a deadlock.
  Here, perhaps, it is only fair that I should pay a tribute to the work done by my hon. Friend the Member for Cambridge University, who was at that time a member of the Council of the Law Society, and who took the courageous course of saying, that unless the profession could get together and agree on

  1705
  some particular method of dealing with this matter, then he would go forward on his own account and promote a Bill of his own. That, as I say, courageous action on my hon. Friend's part had, I think, a very useful result, because it contributed not a little to the fact that, after further discussion, the Law Society were able to get the approval of the provincial law societies as well to certain proposals. The result is that I am now able to say that this Bill, which I ask the House to read a Second time to-day, is put forward with the strongest approval, not only of the Law Society, which contains some 10,000 out of a total of 15,000 practising solicitors of the country, but with the approval of the provincial law societies as well.
  Having said that, perhaps I may claim this for the profession, that when, as has happened now, this kind of criticism of the profession arises, the profession is prepared to do what it can to meet the criticism, and to try to reform abuses within the profession. My hon. Friend the Member for Cambridge University, having evolved his scheme and got it set out in a Bill, a Second Reading has been given to the Bill on the understanding, or with the general approval of the House, which I mentioned before, that that Bill and this one should go to the same Committee. I want only to say with regard to my hon. Friend's Bill, that it sets out certain machinery with regard to the keeping of clients' accounts. He knows, and will be one of the first to admit, the very great difficulties there are in making quite certain that any set of rules of that kind will be entirely satisfactory, and that there will not be found difficulties in the working of them.
  The Bill which I am now proposing does not contain any definite provisions as to the keeping of separate banking accounts for the purposes of clients' money. What it does contain is a provision that the Law Society will, with the concurrence of the Master of the Rolls, make rules from time to time for the professional conduct and discipline of solicitors. Then it goes on to provide that these rules shall be enforceable by fines and disciplinary measures. It is the admitted intention of the Law Society, if a Clause in that form be passed into law, to make rules to some such effect as is contained in the Bill of my hon. Friend. Having discussed this matter over and
  1706
  over again, both with those who sympathise with us and those who are opposed to us, we feel that a satisfactory set of rules with regard to the keeping of separate accounts can only ultimately he arrived at by what one might almost describe as a process of trial and error. In other words, it is too much to expect that the first set of rules prepared will be found to be in every respect satisfactory. We therefore think that it is better in a case of this kind, where obviously these rules must be made by specialists who understand them and the working of them—in other words, by members of the profession—that power should be given to the Law Society to make them, and, of course, power to alter them from time to time. Therefore, the object which my hon. Friend aims at in his Bill would be attained—there is no enmity between us over this—by the working of Clause 3 of the Bill which I am now proposing.
  3.0 p.m.
  I promised just now to make a little more clear what is the Law Society to which we are asked to give power to make these rules with the consent of the Master of the Rolls. I ask the House particularly to note the provision of the Bill that these rules can only be made by the Society, not by the Council of the Society. We are not asking that they shall be made by a despotic body of what may be called leading members of the profession. We are asking that they shall be made by the Society as a whole. That means, that if the Bill be carried, the rules will have to he approved by a majority of the whole members of the profession. It is obvious in a case of this kind that the rules will be drafted in the first place by the Council, which is the executive body of the Society, but there is no need for any members of the profession generally to have any fear that the government and management of the affairs of the profession will be anything but thoroughly democratic, and that any one member of the profession will not have as good a right as any other to have his voice heard in a matter of the kind. The rules so made by the Society will require the concurrence of the Master of the Rolls. That is in accordance with the whole history of legislation in regard to the profession. The Master of the Rolls is regarded as the particular judge whose business is to see that members of the

  1707
  profession generally act in accordance with the regulations by which they are governed and the duties that are expected of them. Therefore, it is clear that, while these rules must be made with the assent of the profession as a whole, they cannot be made in any way to the detriment of those for whom the profession acts, or to the detriment of the people in the country as a whole, because their interests will be protected by that eminent judge of the High Court, the Master of the Rolls.
  Mr. EDE: Is every solicitor a member of the Law Society?
  Sir D. HERBERT: I am just coming to that point. It is a perfectly proper question to ask. What I said was that, if this Bill were carried, the Society would include every member of the profession.
  Mr. WESTWOOD: It would be compulsory trade unionism then. That is a good idea.
  Sir D. HERBERT: The hon. Member is perfectly justified from the point of view of party matters, to attempt a little party gibe, but I am certain that my hon. Friends upon the other side of the House—if I may call them so on this occasion for the purpose of this Bill—are all anxious to see something done to meet the difficulties which this Bill is intended to meet. Therefore, though the question of compulsory trade unionism would be out of order in a discussion on this Bill, I will say a word on that point so far as it is necessary, and germane to the subject, when I come to that Clause dealing with it. Clause 3, with which I have dealt so far, disposes for present purposes of my hon. Friend's Bill.
  The other provisions of my Bill deal with matters which are not dealt with by the other Bill. Clause 2 provides that the profession shall set apart certain moneys and establish a fund for charitable purposes to relieve hard cases where persons have suffered from the misdeeds of a member of the profession. The vast majority of cases of those who have suffered from the defalcations of solicitors, in the last few years have been cases in which the sufferers were poor persons. The amounts involved have not been very large, but the loss, suffering
  1708
  and hardship to those who have lost these comparatively small sums has been very great indeed. We do not think that it is fair or is to be expected that the profession as a whole should take upon its shoulders the making good of all loss caused by the misdeeds of any member of the profession. No trade in the country would agree to that; for instance, there would be a great outcry if it were suggested that the honest grocers should be required to pay the debts of a dishonest grocer who went bankrupt. We realise, however, that as a profession which has privileges it is our duty to try to work for the benefit of our clients. It is incumbent upon us morally, though not legally, to do something, for the honour of the profession, to help those hard cases of which I have spoken, such as that of a working man of mature years who has saved £100 or £200 and loses the whole of it through the misdeeds of a solicitor. Therefore, we ask for powers to establish a fund of this kind, to be at the disposal of the Council of the Law Society for the purpose of making such grants as may be deemed necessary or desirable to relieve persons who may suffer hardships as a result of the defaults of any solicitor. After any such sum has been so set aside, it shall not be lawful to use it for any other purpose.
  The first Clause proposes to define that every member of the profession shall, of necessity, be a member of the Law Society. As I have said just now, we ask Parliament for power to make rules to regulate the conduct of members of the profession, to maintain discipline among them, and to see that they so manage their affairs that there is less chance of causing loss to their clients. If there are to be rules of that kind to govern the entire profession, it is only in accordance with business principles as well as with democratic ideas that every member of the profession should have an equal voice in deciding what those rules are, so far as they are decided by the profession. There is scarcely an organised profession in the country which has not powers of regulating and disciplining its members, in order to ensure that the public may know they are employing properly qualified persons who are under some sort of supervision. During recent years

  1709
  dentists, architects, surveyors and auctioneers have come to this House asking for similar legislation for their professions, and within limits it is essential for the protection of the public that they should have certain powers. I do not think there is a single profession which is organised, and where qualified members of the profession belong to a particular institution or an incorporated body, where membership of that body is not necessary to enable him to carry on his profession. Therefore we are only asking that something should be done in this case which has been done in other professions, but which is not at present applicable to the solicitors profession, because in their case solicitors from the earliest days have been governed by various Acts of Parliament. For these reasons, we ask that every person who wishes to join the profession must become a member of the Law Society. This condition will not impose upon those who join any obligation, hindrance, or restriction except those which are necessary in the interests of honesty, and it is necessary for the success of relations between the profession, the courts, and the public that there should be such regulations.
  Mr. CARTER: Clause 1, Sub-section (3) provides that
  "Section 16 of the Solicitors Act, 1828, shall apply to every solicitor who applies for a certificate to practise without having paid the annual subscription for the current year, or any fine which shall have been imposed upon him by the committee hereinafter mentioned."
  Does that mean that if he objects to pay the fine imposed upon him he cannot practise?
  Sir D. HERBERT: I am glad the hon. Gentleman has raised that point. Those fines could only be levied in accordance with rules which will have been approved, and which are considered to be necessary for the enforcement of this Act. The only discipline which the Discipline Committee of the Law Society now exercises over the members of the profession is that of suspending a member from practice or striking him off the Roll, and that is only adopted in serious cases of what one may call criminal offences. We want to make rules ensuring that a solicitor shall keep proper accounts, and, as it would be rather harsh to suspend a man
  1710
  from his practice for small offences, we want the power to levy a fine instead of taking such a stringent measure as striking him off the roll, or suspending him.
  Mr. CARTER: He may still be a conscientious objector to something done by the society, and he is, therefore, penalised because he has a conscience.
  Mr. WESTWOOD: Can any solicitor have a conscience?
  Mr. PALMER: No.
  Sir D. HERBERT: Let me put it in this way. It is not desirable that the solicitor's profession should contain members who are conscientious objectors to keeping proper accounts, or conscientious objectors to taking proper care of their clients' money. That is the whole point. With regard to Sub-section (3), to which the hon. Member referred, I may, perhaps, just mention one thing in passing. The whole of the restrictions relating to the carrying on of the solicitor's profession are rather complicated, and do not really arise on this Bill; but it is, perhaps, necessary to explain that, in addition to getting qualified and getting placed on the roll as a solicitor, a solicitor has to obtain an annual certificate every year to allow him to practise. It is that annual certificate which is referred to here, and that is one of the methods of keeping a certain check upon a man's honesty and his suitability to be a solicitor; because, if he becomes bankrupt, or is guilty of some offence which makes him an improper person to practise as a solicitor, his certificate to practise can, in proper circumstances, be withheld, subject always to an appeal to the courts. In every case here the courts always have the last word. Neither the council nor the statutory committee nor the society as a whole can do anything with regard to their members, or inflict any punishment upon them, without the court, whose officers the solicitors are, having the last say in the matter.
  I have only one other point to deal with, and that is in connection with compulsory membership of the society. As I have said, the total number of members of the profession at the present time is some 15,000, of whom 10,000 are members of the society, the subscription being, I think I am right in saying, two guineas

  1711
  for members in London and one guinea for members in the country. Incidentally, may I say that it is a trifle for a solicitor to have to pay that annual sum, compared with what he has to pay to the Government as a general tax, for which neither he nor the profession gets any benefit whatsoever. The annual certificate for which he has to pay every year—
  Mr. CARTER: It is very hard on the poor man, who is just entering the profession, to make him pay this guinea a year.
  Mr. BUCHANAN: Five pounds.
  Sir D. HERBERT: No; part of that he has to pay already. That is fixed by the State, and is not for the society at all. Membership of the society is only a matter of a guinea for country members or two guineas for those in London.
  Mr. BUCHANAN: I see that you want to take power to make it more at any time you like after you have got this Bill through.
  Sir D. HERBERT: Is that so? I do not think it is. The hon. Member will, perhaps, tell me.
  Mr. BUCHANAN: Sub-section (2) of Clause 1 contains these words:
  "On production of the admission signed by the Master of the Rolls and on payment to the Society of a fee not exceeding five pounds and also of such annual subscription or proportion thereof as may from time to time be fixed by the Council in accordance with the byelaws of the Society."
  Sir D. HERBERT: That five pounds is the fee which the society, under the provisions of Acts of Parliament, has to raise for the State and for certain purposes when these certificates are granted every year, and it is in accordance with those by-laws that they have to do it under Acts of Parliament; but I do not think that there is any case here of any right or power—I am sure there is not—for the council to increase the guinea or two guineas which is necessary for membership of the society. Incidentally, it is, of course, quite certain that that could not be done without the consent of the members as a whole The great point that I want to bring out with regard to the increase of membership that will result is that, by getting this increased number of members, the society will, we
  1712
  hope, be put to no appreciable extra expense, but will have an additional income of, perhaps, £5,000 a year. That will enable them to set aside every year a sum to form the fund to which I have already referred, which is to be kept as a relief fund.
  Mr. BUCHANAN: The hon. Gentleman has mentioned that the society will have an additional income of £5,000 a year. Does that mean that, at a guinea or £1 per head, there are 5,000 solicitors who are not in the society?
  Sir D. HERBERT: Yes.
  Mr. BUCHANAN: Then it is intended to coerce 5,000 into the society?
  Sir D. HERBERT: If the hon. Member had been here during the earlier part of my speech, he would have known that these questions have already been disposed of. In the first place, the necessity from the individual solicitor's point of view of every member of the profession being a member of the society is that he should have a voice in the framing of these rules. With regard to the £5,000, I have stated that it is the case that the total number of practising solicitors is approximately 15,000 of whom approximately 10,000 are members now and, if they all have to become members, that will give us another £5,000. As he has to pay £5 a year to the State, and certain other fees as well, the addition of £1 is small for the purposes of this charitable fund for the benefit of poor persons who may suffer compared with what he has to pay to the general revenues of the country.
  The profession is a peculiar one in this sense, that it is the only one which has numerous and complicated restrictions imposed upon it by a number of Acts of Parliament, and it is the only profession the members of which are made specially officers of the Courts, as a result of which they must have in every case a qualified duty only to their client, qualified by a duty at the same time to the Court. That is a duty that is necessary if we are to maintain any sense of honour and honesty in dealings between man and man where lawyers have to be brought in to assist in the work. Under these conditions, the discipline of members of the society is obviously not only difficult but is of immense importance and interest to the people of the country as a whole.

  1713
  In the circumstances, the Law Society has come to the conclusion that a Bill of this kind ought to be dealt with by a Select Committee before which any individuals or any organised body of persons who have special reason for putting evidence forward in regard to what ought to be done should have an opportunity of being heard. I hope, therefore, that, in pursuance of the course the House took a month ago, it will give this Bill a Second Reading with the feeling that the profession is doing the very best it can to preserve its honour, its reputation and its usefulness to those whom it serves, and that having given the Bill a Second Reading, it will agree to send it to a Select Committee, together with the Bill of my hon. Friend, so that it can be considered and the best scheme can be hammered out for dealing with the object we both desire to attain.
  Sir J. WITHERS: I support the Bill for the purpose of sending it to a Joint Select Committee, but I think it is my duty to point out the difference between it and the Bill, to which the House gave a Second Reading, which I brought in a month ago. They both deal with the scandal of solicitors' defalcations. There are two main ways of dealing with it—prevention and cure. My Bill was definitely directed to prevent it. That is to say, it advocated solicitors being compelled to keep proper books of account, to keep their clients' money in a separate banking account and always to have in hand sufficient money to meet their clients' balances, and that that fact should be proved either by a certificate of an auditor, or, if the Committee would allow it, by the declaration of the solicitor himself. The Bill is not definitely committed either to prevention or to cure. Cure can be effected by making the profession pay up the whole of the defalcations which the members of the profession have committed. That is the principle which is the alternative, in my view, to the idea of prevention.
  I will take the different points which arise on this Bill and give the House my criticism upon them, not for the purpose of asking the House to reject the Bill, but to enable it to see the points upon which the two Bills differ, and upon which, I hope, the Joint Select Committee will decide. First of all, the Bill provides for compulsory membership of the Law Society. I do not see any objection
  1714
  whatever to compulsory membership, but membership of a society in itself does not really carry the matter any further. The question is what you do with the members when you get them; what discipline you impose upon them. Therefore, as far as I can see, compulsory membership of the society may be quite innocuous by itself, and not lead us very much further. Secondly, it is proposed to put aside the subscriptions of the additional members, some 5,000 guineas per annum, as a relief fund for hard cases. My view is that all cases of defalcations by solicitors are hard cases. I think that, if a man steals £20 from a widow and it is her all, it is a very hard case; if he steals £200 from a widow and it is her all, it is a very hard case; if he steals £20,000 from a man and it is his all, it is a very hard case; and if he steals £100,000 from a man and it is his all, it is a very hard case. I see no reason, personally, why one should be provided for and not the other. I should like very much to see all defalcations of solicitors provided for, if the question of cure is going to be gone into. My criticism of this proposal is that the relief fund will only provide a very small percentage, very much less than 10 per cent., of the average amount of defalcations of solicitors taken over a term of years. If you are going to cure, you had better cure altogether.
  I come to the question of rules for professional conduct and discipline. Power is vested, for democratic reasons which my hon. Friend has stated in the whole body of 15,000 solicitors. I have always found that three or four solicitors find it very difficult to agree on any positive proposal, but, if you are going to try and get 15,000 solicitors to agree on any positive proposal, I will tell the House that it is an absolute impossibility.
  Sir D. HERBERT: It is not being suggested that it is necessary to have unanimity. This body, like every other body, presumably, will be governed by means of a majority vote.
  Sir J. WITHERS: That is quite correct, but I think it will always be found that there will be a majority against any positive proposal. All members of the Society are very anxious to do the right thing. I am perfectly satisfied about that, but they have not been able to agree upon any concrete proposal. I do not think that they will be able to agree.

  1715
  For 25 years they have been talking this matter over. All sorts of proposals have been put forward, but nothing has been done. Everybody is extremely critical and wants a perfect Bill, and the result is that there is always a majority against any particular thing being done. We can judge that particularly from what recently happened. When this Bill was first brought in by the Council of the Law Society, very properly, it was drawn in the following way:
  "The Society with the concurrence of the Master of the Rolls may make and from time to time alter, revoke and amend rules for the professional conduct and discipline of solicitors, and, with the like concurrence, shall make and from time to time alter, revoke and amend rules for carrrying into effect the above mentioned purposes."
  Then it went on to stipulate two special things that had to be done:
  (a) "as to the opening and, keeping of banking accounts into which a solicitor shall pay the money of his clients and as to the conditions under which such accounts shall be operated";
  That was a positive proposal. It proceeded:
  (b) "as to the keeping by a solicitor of accounts containing such particulars and information as to moneys received, held or paid for or on account of clients as may be prescribed by such rules."
  What happened when this came before the general meeting of the Law Society? It was so much criticised that, finally, a vote was passed cutting out every operative proposal of that Bill. The result is, that it has come before this House to-day in its emasculated condition. I want the House clearly to understand that it is not because the profession do not want to do the right thing—they do want to do the right thing—but they are so keen about it that they cannot agree what to do. In these circumstances it is essential that Parliament should lay down exactly the principles which it wishes to be adopted. The principles in my Bill may be right or they may be wrong, but whatever principles have to be carried out they will have to be set out very clearly. Then it will have to be delegated to some body, either the Law Society or a committee of the Law Society, such as the Discipline Committee, to make rules for carrying out those principles. Unless Parliament does that, we shall be here 25 years hence—I
  1716
  do not suppose that I shall be here, but somebody else will be here—talking about this thing, exactly in the same way, and nothing whatever will be done. I know full well that my hon. Friend is actuated by the very best feelings and the very best aid, and I know that the society is similarly actuated, but we differ in principle, and it is for that reason that we ask this House to send these two Bills to a Joint Select Committee, so that that Committee can take the two Bills, see what is best in both of them and turn them into a positive Statute, which will have to be carried out.
  Mr. MUGGERIDGE: I beg to move, to leave out the word "now" and, at the end of the Question to add the words "upon this day six months."
  The House has had evidence of the peculiar features of the legal fraternity. There are certain things that they will undertake to do for you, but in no case whatever will they accept responsibility. You ask them, for instance, for their opinion upon a knotty legal point. You even go to the extent of getting one of the most celebrated barristers and paying him a very heavy fee, and he will give you his opinion, but you will be told that he is not responsible for that opinion, if you act upon it and it leads to your losing a large sum of money.
  Sir D. HERBERT: May I remind the hon. Member that this Bill does not deal with barristers.
  Mr. MUGGERIDGE: I know, but it is the same when you consult a solicitor. He will do his best for you, but my point is that he will not accept responsibility and that it is always the client who has to shoulder the responsibility. Lawyers will not accept responsibility for risks run by their clients. They will encourage their clients to take risks—
  Mr. REMER: May I ask the hon. Member whether he is prepared to accept responsibility for all the misdeeds of the present Government?
  Mr. MUGGERIDGE: We are not talking about the misdeeds of the present Government but of the misdeeds of lawyers. If you go with your deeds which you do not wish to keep in your own house and, instead of giving them to the bank, who would do it much better, you entrust your lawyer with

  1717
  them he will take them and give you every assurance that they are all right in his possession, but he will not take any final responsibility. That is a point which strikes me always about the law, and if I wanted a proof of it this Bill is a sufficient proof in itself. It reveals that in the legal profession there is this weakness, that now and again there is a defaulting member who betrays his trust and more unfortunately betrays his client, who generally has to pay the penalty. The profession will not accept responsibility for such a member, and this Bill merely makes the situation more presentable to the public but does not do anything in the way of accepting responsibility.
  What are they proposing? They are proposing to set up a fund, but they are very careful not to call it an assurance fund. It is simply a fund. What are they going to do with it? As one may expect from lawyers the words in the Bill are very carefully chosen. They are not going to make good what the client of a defaulting lawyer has lost, they are going to give him or her, relief; it is a charitable affair. My lawyer disappears with all my worldly wealth and chattels, and they are going to take into account the fact that I am an old man but at the same time will give me credit for being rather foolish in trusting a lawyer and in placing my goods and chattels in his custody. They will take all that into account, and as they are very sorry for me, as I am not able to earn a living in my old age, they will make me a contribution out of their fund. "Let us see how many people we have dependent upon the fund. Yes, we can spare, say, £2 per week." That is obviously the position visualised by this Bill.
  I object to relief. A man who has had his property stolen wants restitution not relief, and I want to know whether the legal fraternity, collectively, are going to accept responsibility for all their members for the honour of their profession, whether they are going to accept full responsibility and give back to a too trusting client the full extent of the loss he has incurred through his misplaced trust. Or are they going to tell the world at large, "We will continue not to accept responsibility. We will give you advice. If you act upon it and
  1718
  lose money, well, you may carry the baby. If you entrust us with your money we will take care of it, but if any of our profession should fail in the trust, it is you who must bear the consequences. We are very sorry, and may come along and deal out to you some doles week by week, or a lump sum out of the £5,000 in order to make some sort of allowance to you." But that is all.
  They do not use the word "assurance." I think they ought to do so. I suppose the number of ships lost at sea every year exceeds the number of members of the law who are lost in the bankruptcy court. What does the shipowner do? He insures and recovers this amount. Let the legal profession insure against those "ships" that go on the rocks. That is all I ask. But they will not take the risk. The other people do take the risk. [Interruption.] The legal profession does not like the layman's point of view, and I am putting the layman's point of view. Over and over again from both sides of the House we have heard the legal gentlemen. I am now putting the plain layman's point of view, and I say that that point of view is as worthy of consideration as the point of view of the legal profession. Suppose that they do not do that. I ask them what they ask us about our Unemployment Insurance Fund—is it actuarially sound? I ask the lawyers whether this is actuarially sound before I entrust my goods and chattels to any individual lawyer. What steps are they taking to find out? If from the Government Benches we had brought forward this Bill the first question the lawyers would have asked would have been. "Who is your actuary?"
  Has it been stated that the thing is sound? No. Why? Because all the way through they really are very careful to decline to accept responsibility. The hon. Member who preceded me let the cat out of the bag. What I had thought he proved was the fact by lifting up the curtain. They cannot agree amongst themselves and they are afraid to accept any responsibility in the matter. Take another matter. I suppose that all of us feel very strongly the tragedy or injustice of the third party in a street accident, when he loses his goods or is injured and then finds that there is no means of recovery because the man who ran over him is a man of straw. That

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  ought to be applied to accidents—I call them accidents for politeness—in a lawyer's office. If a lawyer's office comes to grief, and I happen to have been the man who left my goods there, at least my wife would consider herself the third party if I lost my possessions. Yet she has no recourse against the lawyer at all under this Bill, nor have I. The lawyers may send round their gentleman, who is possibly taken over from the Charity Organisation Society, to inquire into the matter, and when he has reported that Mrs. Muggeridge is the wife of a very respectable person and is entitled to some solatium for the loss by the accident which has occurred in a street where the lawyers are found, that is all I shall get out of it or she will get out of it.
  The principle is wrong. There ought to be, for these too trusting people who go to lawyers, some means of obtaining security. They ought to have safeguards and if I am told that safeguards are impossible I have a very definite reply. If the legal gentlemen present do not mind me taking them into my confidence, I may say that I have been consulted now and again by people who have had little bits of money left to them, and the very last thing I suggest to them is that they should put it with the lawyers. I have always said to them "If you cannot take care of these deeds and things yourself, give them to the Public Trustee." The Public Trustee ought to be the compulsory custodian of all deeds left on trust by private individuals. That is the only security that can be given to people of property. I feel that this speech is on my part a generous gesture because it is scarcely my métier to speak on behalf of people of property. I find that most people are unconcerned about this question because they have nothing to leave but there are some people, especially women who may be left with small properties and all they can do is to go to the legal gentleman. I think that is very unfortunate.
  It is not that I doubt the legal gentlemen individually. It is only collectively that I doubt them, because they will not stand by each member of their own profession. I suppose they think that in the legal world, as in the mechanical world, the chain is as strong as its weakest link.
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  I suppose they know in their heart of hearts, though they would not say so here, that there are weak links in the legal chain and they are making some effort to strengthen those links, but I hope they will not go to work in this way. My opinion is that in the case of property, where the person concerned cannot be the sole custodian, the proper thing to do is to put the matter in the hands of the Public Trustee and that lawyers holding deeds of value should be bound to lodge them with the Public Trustee. The same thing applies to shares in companies. Over and over again we have instances of the way in which shares can be dealt with. These documents which are the bases of any possible transactions ought to be in safe custody and, failing the Bank of England, I suggest the Public Trustee. There is no lawyer's office in the land which I would trust with the custody of these things, because lawyers unfortunately are subject to the ups and downs of other people, and to temptation.
  It is true that they seldom pay out money of their own. They receive money but they do not pay out. They are not like the manufacturer who has to put his own capital into his business. You can start a lawyer's office and the only capital you need is that which is represented by your own brains, an office-boy, a plate on the door, and a little back office where you can, in privacy, receive possible clients. You can start in business as a lawyer without any capital at all, and they go through business without any capital to a large extent; and they are the last people in the world who ought to be trusted with other people's capital. As individuals, they are as good as the rest of us, but because they are in that position, and because they may now and again incur obligations which their own estate, even if it is sold up, is incapable of meeting, I think they are not the proper people to tell simple souls—they are mostly simple souls who come about these matters—to go to with their little bits of property or the administration of their wills and all that sort of thing. The proper thing is to go to the Public Trustee, or, failing that, the legal profession should give security to the world at large by agreeing that every document of value, without which a buying or selling transaction cannot take

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  place, shall be lodged with the Public Trustee. Only then will you get, in accordance with the principles in which we believe on this side, that absolute security which the collective power of the nation alone supplies.
  Mr. EDE: I beg to second the Amendment.
  One had the pleasing spectacle a few minutes ago of seeing the hon. Member for Watford (Sir D. Herbert) eulogising the profession to which he belongs and then the hon. Member for Cambridge University (Sir J. Withers), himself a member of the same profession, providing the complete answer to it. I think the speech of the hon. Member for Cambridge University, in which he showed how the profession itself was declining to shoulder the real responsibility in the matter, made the most damning case possible against the Bill. The hon. Member for Watford was very careful, in referring to this fund, to refer to it every time as a charitable fund, and it is quite obvious that, as far as he is concerned, persons who lose their money through the defalcations of their solicitors will have no claim against their solicitors at all.
  It seems to me that by this Bill the solicitor's profession is going to secure very great advantages that might make it consider whether it is not worth while accepting greater responsibility in exchange. They are going to be able to compel every person who wants to practise as a solicitor to be a member of their society before he can even so practise. That, in itself, gives them an amount of control over these people that ought to be paid back to the public by the acceptance of this responsibility. I gather that the hon. Member for Cambridge University is himself in favour of a greater measure of responsibility being accepted by the profession as a whole. It was interesting to hear the hon. Member for Watford pleading for a compulsory membership of the trade union, and the arguments that he advanced in favour of it are arguments that I am sure will be well remembered on this side when certain other matters are before this Assembly. He certainly made out a very good case that every professional calling should be able to decide as to the people who are to carry on the calling, and to control them once they are inside
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  it. He draws the line simply at moral and financial responsibility.
  I cannot help thinking that if this Bill becomes law, or a Bill in anything like this form, it will mean that people will be very much misled as to the safety of their property and deeds if they are left to the solicitors. I cannot help thinking that those simple souls who seem to confide in my hon. Friend the Member for Romford (Mr. Muggeridge), and therefore apparently prove their simplicity all the more, once they hear there is a fund, will think they have some greater measure of protection than they have now. It is quite plain that, as far as the hon. Member for Watford is concerned, he would not be prepared to tell any client of his who came to him that the fund gave a security at all. It is quite obvious that it is only when inquiries have been made by the Law Society that the person will know whether he is entitled to receive some compensation for the loss sustained, and it will be ex gratia.
  Then we come to the other points in the original Bill as read out by the hon. Member for Cambridge University. All of them made it incumbent, apparently, upon the Law Society to frame rules that would give a great amount of detailed assurance to those clients, but their compulsory nature has been wiped out in this Bill. In submitting these proposals for a body of 15,000 people, whose whole training is against agreement, who, if they reached agreement at too early a stage, would lose their living altogether, it is not likely that they will ever promote a set of positive rules which can be applied to the profession, and I believe these people will not feel that they have any real security whatsoever. I was not at all satisfied with the answer which the hon. Member for Watford gave to my hon. Friend the Member for Gorbals (Mr. Buchanan) with regard to the question of the subscription. Sub-section (2) of Clause 1 proposes to put a new Section 11 into the Solicitors Act, 1888, which provides
  "On production of the admission signed by the Master of the Rolls and on payment to the Society of a fee not exceeding five pounds and also of such annual subscription or proportion thereof as may from time to time be fixed by the Council."
  I gather that the hon. Member for Watford said that that was a sum fixed

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  by the State, but I think that my hon. Friend the Member for Gorbals was not referring to the £5, but to the annual subscription. As I read the amended Section, it might be any sum that is fixed from time to time by the majority of members of the society. We have had, during the past few years, a series of Bills presented to this House in which various callings have tried to erect themselves into professions controlling the entrance to their profession, and while I desire to see in every profession a governing body which shall maintain a standard of professional honour, I am very suspicious that some of these Measures are promoted with a view to excluding the small man from getting his footing into these professions, through gradually raising the subscriptions for membership of the body which is to control the profession once it is established.
  This Bill represents one side of the solicitors' view of this matter. The Bill of the hon. Member for Cambridge University represents another view, and I am bound to say that, having read them both, and having taken the precaution to consult a solicitor on them, I was advised that both of them would be quite ineffective to control the solicitor who was
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  determined to be dishonest, and that with regard to the solicitor who, against all his natural propensities, was determined to be honest, it would impose such heavy charges upon him that it might make him even feel whether a virtue ought not to have something other than itself for its reward. I hope, therefore, that before this House assents to either of these Bills, the profession itself will strive to find out which particular horse it wants to back, so that we may feel that when we put our money on the horse it will at least have the backing of both the breeder and the trainer.
  It being Four of the Clock, the Debate stood adjourned.
  Debate to be resumed upon Monday next.
  The remaining Orders were read, and postponed.
  Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 3.
  Adjourned at One Minute after Four o'Clock, until Monday next, 23rd February.