HL Deb 30 July 1869 vol 198 cc979-87

(The Lord Penzance.)


Order of the Day for the Second Reading, read.

LORD PENZANCE, in moving that the Bill be now read the second time, said, that the Bill had been maturely considered by a Select Committee of the House of Commons. Its object was to redress grievances arising out of the present law as regarded the property of married women, which were keenly felt by a considerable portion of the population. The theory of the common law was that all property possessed by a woman at the time of the marriage, or acquired subsequently, passed absolutely to her husband, who in return was bound to maintain and protect her. Her identity merged as it were in Ms, and she could neither sue nor be sued—she being unable to enter into any contract, and the husband being civilly responsible for her actions. The upper classes, however, had found means to escape from the severity of this system by means of marriage settlements, and the courts of equity had gradually, and step by step, secured the property of the wives of the well-to-do classes from the carelessness or prodigality of their husbands. Among the poorer classes, however, all the harshness of the law made itself felt. Under the common law a man was bound to support his wife, but she had no direct means of obliging him to do so—she could only throw herself on the parish; and if she became chargeable to the public the parish officers had a right of recovering from the husband what was necessary for her bare support. If he squandered the property possessed by her on her marriage she had no redress; and if, during her married life, she earned anything by her industry or talents those earnings became his absolute property. Such a law, regarded in the abstract, could not be deemed satisfactory. According to the last Census there were 3,000,000 of married women in the kingdom, of whom about 800,000 were persons working for wages or earning money in some other way. Now, in a certain percentage of cases, the husband became a spendthrift or a drunkard, and preyed upon her earnings, sometimes seizing and pawning her goods or breaking up her home. The law stood by, leaving him entirely master of the situation, and the more determined a wife was to preserve herself and her children from poverty, the more certain he was to come down and seize upon the pittance she had secured. Magistrates, clergymen, district visitors, and all acquainted with the poor, were aware that this grievance was widely felt, especially in the North, where it was commoner than elsewhere for women to be largely employed for wages. By a recent provision the earnings of a married woman were protected, in certain cases, against her husband—but these protection orders could only be granted where the husband had deserted the wife, and not otherwise. The Select Committee of the House of Commons took last year much evidence as to the frequency of cases of hardship, and they reported that an extension of the system of protection orders, which at present applied only to cases of desertion, to reckless, cruel, and dissipated husbands, would be a very inefficient remedy, since few women, while continuing to live with their husbands, would come forward and expose their domestic trials by making applications to adverse to them. These protection orders, granted under a clause in the Divorce Act to wives deserted by their husbands, had done a large amount of good; but it was obvious that if a worthless husband had a mind to prey on his wife's earnings he would not leave her sufficiently long to enable her to claim the protection of these orders. And, as a rule, such men took care not to desert, in a legal sense, their wives while they could live upon their earnings in idleness and dissipation. The law in this respect was peculiar to England—in no other country, he believed, did the entire property of a wife become the absolute property of her husband. The Select Committee had turned their attention to the state of the law elsewhere. In America, great changes had been made during the last ten or fifteen years, the common law which they inherited from us having been abrogated, and, ac- cording to the evidence offered to the Committee, this had not caused disunion in families, or weakened the proper authority of the husband, nor had it put an end to marriage settlements, though it had diminished the number of them. The Bill, which was founded on the recommendations of the Select Committee, proposed that a wife should be capable of retaining the property she possessed at her marriage and afterwards of disposing of it; that as to marriages now in existence the wife should have all property accruing to her after the passing of the Act; that she might sue and be sued as if unmarried; and that her estate should at death be distributed in the same way as her husband's would be. As to subsequent marriages, women were to hold property belonging to them at the time or acquired afterwards. There were subsidiary clauses making the wife liable to the Poor Law for the support of her husband and children. He did not conceal from himself that the Bill proposed to make a fundamental change in the law which had hitherto regulated the relation of husband and wife—that it revolutionized that law. He could quite understand the alarm which some persons might feel at the notion that the wife could bring an action against the husband, and could deal with her own property — such a proposition was so utterly at variance with the principle of the common law that alarm and doubt might reasonably be generated. It might be urged that the indirect effect would be to set up two independent authorities in one household; that the proper authority of the husband in his own house would be weakened, and that disunion would be promoted. But notwithstanding that those feelings were natural in the mind of anyone who contemplated those changes for the first time they would not, he trusted, induce their Lordships to refuse to read the Bill a second time On the other hand, the common error of reformers was to fix their eyes upon a particular grievance, and to propose a sweeping change, without reflecting that the law with which they were dealing provided for cases in which there was no evil as well as for those in which there was an evil. We might flatter ourselves that the large majority of marriages were not unhappy, and that there would generally be no desire on the part of married people to squander the property of each other; while it was possible that unions which had hitherto been harmonious would be seriously interfered with by the tendency to set up two independent authorities. Where the marriage was a success, and where the harmony of the home was maintained there was clearly no necessity for a change of this kind; and he supposed it was hardly necessary to say that by the very terms of marriage the husband ought to be the paramount authority in his own home. He understood that there had been a recent discovery by profound thinkers that there was no moral or intellectual difference between the sexes such as lead to the subordination of the one to the other. Truth, however, in the common affairs of life, lay very near the surface, and those who dug and delved into the lower strata of thought sometimes brought up ingenious theories, but rarely practical truth. His own belief was, that the relations of husband and wife were founded upon a condition of things which had existed without exception in all times and in all parts of the earth—the husband being the protector and support of the wife, and the latter subordinate to and reliant upon him; nor did he think that the women of this country would desire a change in an order of Providence which was the source of the highest pleasures which either men or women could enjoy. Unless the old idea of the husband being paramount and the wife subordinate was an effete and worn-out theory, the law obviously ought to follow in the same track, and hence the actual state of the common law. But it did not follow that grievances should be tolerated, and the practical question with which they had to grapple was, how far the paramount authority of the husband could be reconciled with a reasonable protection to women who are tyrannized over and down-trodden by those who disregarded their marriage obligations. If it was right that in an harmonious home the husband should support and protect the wife, there was no reason why, where harmony ceased and the home was broken up, the law should not step in and strip him of rights which had become a tyranny. It would not be difficult, he thought, to provide that the authority of the husband and the ordinary comity of goods should remain so long as the parties lived together; but that when the home was broken up, or the husband did not perform his duties, the wife should be protected by the law. It had been suggested that an extension of protection orders might meet the difficulty; but to this it had been objected that the extreme unwillingness of the wife to go before a magistrate would, except in very aggravated cases, render this a dead letter. It had also been felt that to give the husband a right to his wife's property, barred only upon application to a magistrate, was to put matters on a wrong foundation, and that if, on the other hand, the law recognized the wife as owner of her earnings, she would be elevated in the eyes of her husband and likely to be better treated. These considerations, which had weighed with the Select Committee, were well worthy of their Lordships' attention. He regretted that the Bill had only come up to this House within a fortnight of the close of the Session, and he feared that by no amount of diligence on the part of their Lordships could it be sent back to the other House with any necessary Amendments in time to become law this year. He was anxious, however, that their Lordships should show their sympathy for the suffering class and their readiness to consider the question by reading the Bill a second time. The Preamble simply affirmed the desirability of amending the law of contract and property as to married women, and the principle of the measure was that the evils to which he had referred should be remedied, so that their Lordships would not be committed to anything further. This would facilitate the re - introduction of the measure next Session, in order that at no distant date a remedy for the existing evils of our marriage law might be provided. The promoters of the Bill ought not to feel surprise if persons did not in hot haste abandon settled opinions, which probably resulted from their familiarity with the present law, and if the measure did not find immediate acceptance. It had made its way — he was going to say slowly, but certainly progressively — in the House of Commons, the majority last year being only 1, whereas this year it was considerable— not I lawyer out of 33, as he was informed, voting against it. People would doubtless become educated into regard- ing the Bill more favourably than at first sight; but it would not be surprising if it at first underwent severe scrutiny. On the other hand, he would remind the opponents of the measure that the existing grievance was neither a temporary nor a trivial one, it being widespread and fruitful in misery.

Moved, "That the Bill be now read 2a." (The Lord Penzance.)

THE DUKE OF NORTHTTMBEBLAND, who had given notice of an Amendment that the Bill should be read a second time this day three months, said, he did not intend, after the noble and learned Lord's speech, to press that Motion. That speech admitted that it revolutionized the present relations of married life—which was of itself a sufficient reason why the House should pause before making so enormous a change. He admitted at the same time, that the existing evil was of the greatest weight, and called for prompt legislation. Other evils, however, might be created by the present Bill, which would enable a wife to dispose of her property, and leave her husband without subsistence. The noble and learned Lord had rightly remarked that reformers were too apt to sweep away authority instead of restraining; whereas, care should be taken to separate the use from the abuse. He was glad that the question had been taken up by such a high authority as the noble and learned Lord, and thought that ultimately some remedy might be found for admitted evils, without revolutionizing a law which had existed time out of mind; but he could not support the Bill in its present shape.


desired to express his general approval of the principle of the Bill; but, at the same time, he thought the details of the measure required very careful consideration. But it was evidently impossible that any Bill on the subject could pass during the present Session. The experience of the last few years, and the facts stated by his noble and learned Friend, left little doubt of the necessity of protecting women of the humbler class who acquired property by their labour. As regarded those in a better position, he would remind the House that from a very early period the Court of Chancery, feeling the necessity of affording married women protection, had taken care that when any fund exceeding £200 came before them to which a married woman was entitled, they would not part from it until she had had ample opportunity of securing it, or a portion of it, to herself and her children. This attempt to mitigate the severity of the common law showed that the grievance had been long felt; and, though the upper classes were to a great extent protected, it was but right that as regarded women of the poorer classes a remedy should be provided. Having been so long acquainted with the great value of that protection to married women, he could not but express his assent to the principle of the Bill.


acknowledged the fairness with which the noble and learned Lord (Lord Penzance) had stated both the arguments against the Bill and the objections which might be preferred to its particular form, and believed that by not carrying the measure any further this Session the end in view would be furthered. He was himself a supporter of the principle of the Bill; but he wished to explain what he regarded as its principle. There were two kinds of protection provided by the Bill. One regarded protection to the earnings of married women. It had always appeared to him impossible to defend the existing law as regarded the earnings acquired by married women through their industry and talents. It was inconsistent with justice that she should have no voice in the disposition of those earnings. The other protection related to the law which transferred to the husband absolutely all property belonging to the woman at the time of the marriage. In regard to this, it must be remembered that while the common law gave all present or future property to the husband, there was during a very long period, and increasingly in modern times, a standing protest against it in the circumstance that, with the rarest exceptions, a settlement was agreed to when the families were able to afford it, putting the property of the wife on a footing directly at variance with the common law. This being the usual practice among the upper classes, the law ought to provide for those who could not afford the expensive luxury of a settlement, and in some way give like protection to women with a small property. These two points he regarded as the principle of the Bill. But a number of its clauses went further, and others would require a careful consideration by a Select Committee, for they raised a host of difficulties, and were the Bill to pass in its present form the whole law relating to husband and wife would be thrown into confusion; the result of which would be a much greater change than would accomplish the object in view. At this period of the year careful examination by a Select Committee was out of the question; but he would not oppose the Motion to read the Bill the second time.


said, there was a strong feeling in Ireland in favour of legislation in this direction, a number of Petitions numerously signed having been intrusted to him for presentation.


desired to express approval of the principle of the Bill. No doubt, it would revolutionize the common law, but not the existing law, for the former practically applied only to the poor, the other classes almost universally excluding its operation by marriage settlements. The humbler classes, not being able to afford settlements, experienced much suffering and hardship. Among the tipper classes a woman's portion was usually well ascertained at the time of the marriage, and it was rare for a lady of the higher ranks to acquire any money afterwards by her industry, this being almost invariably confined to literary qualifications; but among the lower classes it was common for a married woman to earn considerable sums by her own industry or the exercise of her talents, and all this is taken by the husband. He should have been glad if one or two clauses in the Bill could have been passed this year; but he admitted that the Bill, taken in its entirety, required more careful consideration than could at present be given to it. He earnestly hoped, however, that next Session their Lordships, who did such good service in Select Committees in questions of this kind, would alter the present law, which practically made the women of the lower classes the slaves of their husbands.


said, that a Bill of this kind, dealing universally with all marriages, was not analogous to settlements, which were formed to meet the peculiar circumstances of each case. Unless settlements were brought within the reach of the poorer classes, they would not enjoy the same advantages as the rich.


admitted the necessity of proceeding cautiously in this matter, the tendency of the Bill being materially to alter all the relations of husband and wife. To appreciate the necessity of legislation one must go to the manufacturing districts, where many married women earned large wages and carried on distinct employments. Their earnings were a great temptation to idle and profligate husbands, and the most heartrending things occurred, homes in many instances being broken up and the wife and children sent to the workhouse. This was a wide-spread and increasing evil, and he trusted that earnest attention would be given to it next Session.

Motion agreed to: Bill read 2a accordingly.

Back to