§ Order of the Day for the Second Reading, read.
§ LORD CAIRNS
, in moving that the Bill be now read the second time, said, that though the Bill necessarily dealt generally with the whole subject of the property of married women, its main object was to meet the case of married women in the humbler classes of life, especially those who were in the habit of working for wages, or acquiring earnings for the support of themselves and their families. It had been established by evidence of the clearest kind—the heart-rending details of which it was happily unnecessary to enter into, that in most of the manufacturing districts, especially in the North of England, there were abundant instances in which poor and industrious women, who had exerted themselves to maintain their families, or to the assistance of their maintenance—after working very hardly for very small wages—had been exposed to the evil of having their small earnings pounced upon from time to time by intemperate, idle, or dissolute husbands, and expended on purposes entirely foreign to the support of the family. 601 The reason that such a state of things was possible was that marriage, as all their Lordships knew, vested in the husband all the personal property of the wife. Such was the common law; but, at the same time, the rule had proved so inconvenient in practice, that wherever there was any amount of property sufficient to justify it, the common law was set aside by settlements by which a separate provision was secured to the wife. The Court of Chancery, moreover, had very extensively and beneficially modified the doctrine of the common law, even where there was no settlement, where the amount of property justified its interference, and where that interference could be invoked. Its temper had always been to insist that wherever property devolved upon the husband in right of the wife, an adequate portion of such property should be settled on the wife and children, in derogation of the otherwise absolute right of the husband. The evil with which the Bill sought to deal was a very great one. Now, according to the last Census the entire number of married women in England was somewhere about 3,000,000, of whom he believed he had grounds for saying that about 800,000 earned wages in some shape; so that the class to be dealt with was a very considerable one. There was a marked difference in this matter between the upper and the lower classes of society. While the upper classes were protected against the absolute rule of common law by means of settlements and by the resort which they had to the interposition of the Court of Chancery, the humbler classes had no protection except that show of it which was provided at the instance of Lord St. Leonards in the Divorce Act, which empowered a magistrate to grant an order to a wife deserted by her husband, protecting her future earnings against his interference. This was obviously insufficient, for the hardest cases were those where the husband did not desert his wife, but clung to her for the sole purpose of plundering her from time to time of her earnings. Our law differed in this respect from that of most other countries. In all Continental countries, to a greater or less extent, laws had been adopted more favourable to married women: and if we look to those great communities across the Atlantic that had sprung from ourselves—the United States and 602 Canada—it would be found that they had abrogated our common law in this matter, and had adopted legislation similar to, or in the direction of, the present Bill. Three remedies had been proposed for the evil. The first was an extension of the system of protection orders; but these, at present, did not reach the worst cases—those where there was no desertion; and it was unwise to require a poor working woman, as a condition of protection, to present herself in a police court for the purpose, as it were, of effecting a separation of interests, and of suggesting a complaint against her husband, thereby provoking that want of domestic harmony which it should be their object to avoid. The second remedy was a statutable form of settlement, applying to all cases where the parties did not themselves enter into a settlement. The women of the lower classes did not want a settlement, which was quite unsuitable to small sums, which came in from time to time, and were not worthy of being invested for the purpose of income: they did not want the capital preserved, but they wished to be allowed to spend the money in the support of their families. The third, and only remaining course, was that proposed by the Bill—namely, to alter the general rule of law; to leave settlements to be made where advisable, but in other cases to make the property of the married woman her own until she chose to part with it. If she pleased she might make a gift of it to her husband. Thus the Bill would do for the poor what the Court of Equity did for the rich, by putting the married woman as to property in the same position as the unmarried. Some of its provisions would require consideration, and he himself should propose some Amendments; but after the best consideration his opinion was that the principle of the Bill was the true one. It had passed the House of Commons two or three times, and was there investigated by a Select Committee, when evidence was taken, and he believed there was in that House a strong preponderance of opinion in its favour. It was last year read a second time in this House, on the understanding that it should not then proceed further. He now asked their Lordships to read the Bill a second time. He should offer no objection to its being referred to a Select Committee, where some of the niceties 603 of law which it involved might possibly be better considered, and where, owing to its moderate compass, it would occupy but a short time.
§ Moved, "That the Bill be now read 2a."—(The Lord Cairns.)
§ LORD PENZANCE
said, that having moved the second reading last Session, he would confirm his noble and learned Friend's statement of the history of the measure. The evil which it was avowedly intended to meet was one the existence of which could not be doubted, and which was of considerable magnitude. He need not enlarge on the number of married women of whose industry their husbands took advantage by living on the produce of their labours. He must, however, repeat what he said last year, that the Bill went far beyond the necessities of the case which it affected to meet. The provisions of the body of the Bill affected all the married women of England; it would subvert the principle on which the marriage relation had hitherto stood, and its tendency would be to cause increased discord and separation. Their Lordships were legislating not only for the upper classes—who protected themselves by settlements, but for the mass of the middle class, among whom settlements were by no means common. He held it very desirable that before any considerable change was made, the Bill should be submitted to very careful consideration; and that it should be specially applicable to that class whose grievances it was designed to remedy. The Bill would give a married woman the same rights of possessing and dealing with property, and of contracting obligations with third persons, that an unmarried woman enjoyed; while it nevertheless left untouched her status as a married woman. It left untouched her right to be maintained by her husband; she would be able to spend her property any how she liked, without any obligation of contributing to the expenses of the household; and when it was dissipated she would be entitled to the support of her husband and to pledge his credit for necessaries. As a question of abstract justice this position could not be maintained. The Bill also provided in the most sweeping manner that a married woman might sue and be sued precisely in the same manner as a feme sole—so 604 that there was nothing to prevent her bringing an action even against her husband, founded upon any matter of contract which she might choose to allege. Litigation under any circumstances was thought to have sufficient asperity about it to make people uncomfortable enough; but it was difficult to conceive the relations of a man and wife, plaintiff and defendant in an action, sitting down to breakfast together, passing the day together, consulting their respective attorneys, and then dining together. A married woman, moreover, being at full liberty to contract with the outer world, might carry on any trade she pleased without her husband's consent, so that a man might be startled by the information that his wife had determined to set up a rival shop in his neighbourhood—which at present was prevented by her inability to contract; and, since she would be quite competent to take a partner, he might be still more startled at hearing that she had entered into partnership with her cousin, who need not be a woman. A husband who expected his wife to keep his home and attend to the children might find her opening a Berlin wool shop with her cousin John as a partner. Surely this was an unnecessary corollary to the protection of women's earnings from idle and dissolute husbands? The common law, broken in upon in the case of settlements, provided that the wife having no personal property of her own, the husband should have the regulation of the common purse. Now, was it desirable to set up in a household two holders of the purse, two powers, co-equal at first and likely to become adverse in the end? He had, unfortunately, had special experience in these matters, which had shown him that there was no commoner cause of violence and cruelty on the part of the husband leading to a separation, than the possession of some small sum by the wife which she was in some way able to retain; the result being that the husband first teased and afterwards ill-treated her in order to get hold of it. The Bill involved the question whether the husband should rule in his own household; for if the wife had co-equal power over the property she would obviously have a considerable share in the management. He denied the assertion that the upper classes evaded the rule of the common law as to the control by the 605 husband of the common fund by means of settlements. No doubt the property of a woman about to marry was settled—but settled as much to protect it from being spent by her as by the husband—on the children, and he was informed that in by far the larger number of cases a life interest in it was given to the husband, subject, of course, to the setting aside a sufficient sum as pin money for personal expenses; but the husband in the large majority of settlements retained the control of the income during the lives of both. France afforded a confirmation of this view; for, though the law gave the option of community or separation of property, the former was chosen in 99 cases out of a 100. This system gave the husband the entire regulation of the expenditure of the common fund, simply requiring an account from him as to his disposition of the wife's property; and where this community was put an end to, and where this step had become necessary on account of the husband's misconduct, the wife had to go before a Court of Justice and obtain a separation de biens. This was a system which met the necessities of the case. If the husband who primarily ought to be allowed the control of the common fund, neglected his obligations, lived on his wife's money, and did not work for the support of the family, what could be more reasonable than that she should resort to some Court to obtain a "separation of goods," which would allow her thenceforth to receive her earnings? He saw no difficulty in such a provision. His noble and learned Friend (Lord Cairns) had urged that such an application to a magistrate would at once lead to a separation. But if the husband were of the character described this would not be so much to be deprecated; but he saw no reason for this result. Why should she not be able to appear before a County Court Judge, who, on sufficient proof that the husband was idle, dissolute, or disorderly, would set aside the community of goods affixed to marriage by the common law, thus leaving to her her own earnings? The protection orders provided by the Divorce Act were obtained with the utmost facility from any magistrate or from the Judge of the Divorce Court on a short affidavit, and they worked extremely well. Why, then, should they not be extended to 606 cases other than those of desertion? Exceptional cases—and, though numerous, the cases where husband and wife were on such terms were exceptional—would thus be deal with in an exceptional manner. He regretted that the promoters of the Bill, who undoubtedly had the benefit of these people at heart, had re-introduced the Bill in its former shape, notwithstanding the tone of the discussion in this House last Session, when all the speakers, though glad to remedy a grievance, repudiated the notion of altering the whole law relating to marriage. He thought the advocates of what were popularly called the "rights of women," whose opinions, if not their hands, might be traced in these provisions, would do well to recollect that great evil had, it was said, arisen from marriages being less frequent than they used or possibly ought to be, and that if the law were so altered that a man in taking a wife took a partner with separate interests, entitled to trade separately, and to spend her property how she chose, it was doubtful how far there would remain an inducement to the male portion of the community to enter into such a contract. He was sure, too, that if there was one race of people to whom it would be less agreeable than to another not to be masters in their own houses, it was the race represented by their Lordships.
§ LORD WESTBURY
said, that a very small part of the Bill related to the main evil requiring redress, and in the remainder there were many extravagant enactments. Yet if they reduced it to a more sensible character, and sent it down to the other House in a more limited form, he feared, from the temper in which it had been sent up, that the Bill would not pass in its altered form; and thus all opportunity of remedying the evil complained of would be lost. Still it was impossible to pass the measure as it was now presented to their Lordships. Many of its defects had been exposed by the noble and learned Lord (Lord Cairns), who, however sensible he might be to the objections to the measure, had treated them very tenderly. The Bill seemed to have sprung from the sensationalism of the day, which delighted in extravagancies, and sought to carry them even into the amendment of the law. The Bill was, in fact, an entire subversion of the system of domestic rule which 607 had prevailed in this country for more than 1,000 years. The objections to the Bill could only be fully noticed by a reference to its details. The first section proposed that a married woman should be capable of holding, acquiring, alienating, devising, and bequeathing real and personal estate. Now, he appealed to married men whether they would like this additional yoke; while as to the unmarried, it reminded him of Lord Brougham's remark on Lord Campbell, that he had succeeded in adding a new terror to death. Under this provision a woman might receive a legacy of £20,000, and her husband might imagine that she would employ it for the general maintenance and comfort of the establishment. "No, my dear," she would reply; "Lord Cairns has got rid of that, many thanks to him. He has spoken so delightfully and gracefully that the House of Lords has given me the absolute control of the money." The husband, perhaps, would suggest that the legacy should benefit the children; but she would answer—"At present I have set my heart on a beautiful diamond necklace." Thus the money would be wasted and consumed without the possibility of any check. The Bill also enabled her to contract, so that she might take a fancy to buying any number of bracelets. The effect of such legislation would be to upset the old rule of married life, which was based upon the theory that a man and his wife should be one soul and one spirit, and should devote their property entirely to the benefit of themselves and their children; but the Bill had quite an opposite tendency. The misery suffered by the wife of a brutal husband, who seized upon her earnings and spent them in drunkenness and dissipation, could not be put in too strong a bight; but the evil was most imperfectly remedied by this Bill. Not only her earnings but her wages should be protected. The Bill would enable a married woman to dispose of leasehold houses or railway shares in any manner she chose; and if there was some person for whom she had greater affection than for her legitimate lord, she might lavish the proceeds upon him. Could such an arrangement be desirable? Under the existing law a woman of the labouring class was frequently subjected to the temptation of buying expensive articles by pedlars and others. Her husband 608 was then summoned to the County Court for payment, and if he disobeyed the order of the Judge he was sentenced to imprisonment. Now, was it desirable to expose such a woman to a temptation to which she would certainly yield—as she had done from the beginning—and then under the new system allow her to be sent to prison? He feared that his noble and learned Friend would have a great deal of misery and unhappiness to answer for if this Bill were permitted to pass into law. He admitted that the law which gave the wife's entire real and personal property to the husband ought to be altered, and substituted by regulations similar to those which applied to the community of goods in France. The property might be invested, the husband having the management and administration of the income, and being controller of his household until he made a bad use of that power. As to property accruing after marriage, it should, if it exceeded a certain sum, be settled for the benefit of the wife and children—including also, if they pleased, the husband. As the Bill stood, the wife would be under no obligation of contributing to the maintenance of the establishment, her only liability being to pay the parish perhaps 5s. a week if her husband became chargeable to the parish, while his obligation to support her was left untouched. If their Lordships struck out those portions of the Bill which appeared to have been most favourably received in the other House, and sent back what was virtually a new Bill, he was persuaded that there would be no immediate legislation upon the question. His own belief was that the only real and effectual way of dealing with the property of married women would be to reject the present Bill altogether, and to substitute for it some reasonable provisions such as he had suggested. If that advice were followed, a Bill might be procured which would satisfy both Houses of Parliament. The passing of the present Bill was out of the question.
§ LORD ROMILLY
hoped their Lordships would at least not take the advice of the noble and learned Lord who had just spoken. Such a course would undoubtedly prevent legislation for this year at least. The noble and learned Lord had drawn an extraordinary picture of what would happen under the Bill if a woman came into possession of £20,000; 609 but all the noble and learned Lords present, including one whose presence among them was a subject for much gratification (Lord O'Hagan), were aware that this frequently happened under the present system. A man left his niece or daughter £20,000, coupled with conditions which made it entirely her own—giving nobody else power to touch a penny of the income; and so far from there being the mischievous result described by the noble and learned Lord, it rather seemed to tighten the bonds of affection. As to settlements, with which he had had some experience, some portion of the property was given to the husband by the Court of Chancery—especially if it approved the marriage; but, as a rule, it was settled wholly on the wife for her separate use, the husband having a life interest in it after her death, and it being then divided among the children. It was true that a lady having a separate fortune was under no obligation to contribute to the daily expenses of the household, but she almost invariably did so; and as long as they lived together the Court of Chancery regarded the money when paid at her desire to her husband as employed for the benefit of both. His belief was that if the Bill were sent to a Select Committee, it might be very much improved. It need not interfere with the settlements and contracts of the wealthier classes; but, if judiciously amended, it would afford very wholesome protection to the lower classes, to whom settlements were wholly inapplicable. He therefore trusted their Lordships would read the Bill a second time, and refer it to a Select Committee; and if it were there carefully reformed he believed that the House of Commons would cheerfully accept it, as knowing that it had been carefully considered by noble and learned Lords who were well acquainted with the subject.
§ THE EARL OF SHAFTESBURY
said, he confessed he regarded this Bill with very great apprehension. He looked upon this not as merely a legal, but as a social question of the highest importance; and the various efforts which were being made for a great relaxation of the marriage laws, and for facilitating separation and divorce, made it necessary that the Bill which proposed to give such increased facilities to women should be seriously considered, in all its bearings, before any conclusion was ar- 610 rived at. He was not prepared to say that the Bill was not a good one; but he did say that it ought to be very maturely deliberated. The Bill might properly be divided into two parts—that which affected the rich, and that which affected the poorer class. The noble and learned Lord (Lord Cairns) had dwelt with proper emphasis on the second part of the I Bill, which related to the earnings of women of the working classes; but he had said little on the first part, which, viewed in connection with the wealthier class, gave cause for serious apprehensions. There could be no doubt that for the working classes, a measure of this kind was of immense importance; and even if it involved the violation of some sort of principle, this would be better than the continuance of the present evil. The property in question might be divided into two classes—fixed property, which was the subject of arrangement, by deed, and that which was the result of mental or manual labour. He did not know whether the term "occupation" would include, as ought to be the case, the right of property in literary efforts, but the claims of literary ladies ought to be considered. Two-thirds of our tracts, and nearly all our most interesting and effective stories were written by women; and these ladies, who were very numerous, had, at present, no protection whatever for their works, against the greed or rapacity of their husbands. He recollected a lady of considerable talent who lived entirely by her writings, and who was obliged to write under a feigned name, and to shift from one publisher to another, lest her husband should discover what the proceeds of her writings were, and lay violent hands upon them. As regarded the upper classes, the provisions of the Bill went far beyond what was necessary, and struck at the root of domestic happiness, introducing insubordination, equality, and something more. They would allow a married woman to hold and deal with property like a feme sole, and yet would allow her to plead coverture, and insist on the husband being answerable for her debts. [Lord CAIRNS dissented.] He should be glad to be corrected, if mistaken; but the 6th clause provided that the husband should not be answerable for debts contracted by her before marriage—implying that he would be answerable for debts con- 611 tracted after marriage. Would the wife be answerable for her own debts? If the noble Lord could assure him that, under his Bill, the husband never would be answerable for the wife's debts, as long as she had any property of her own, that would, in a great measure, remove his objection. Under this Bill the wife would be capable of holding property. Would she hold it with all the usual rights, privileges, and profits? For instance, could she quarrel with her husband and eject him, or refuse him admission to her house; and, while keeping him out of it, might she admit every one else? If she could act in that manner, he wanted to know how the conjugal rights of the husband were to be asserted—except by application to a magistrate, who, probably, would not like to act in the matter, with this Bill, as an Act of Parliament, staring him in the face? Then, the wife might acquire property; but what was to be the rule, if the husband thought it necessary to forbid her accepting presents from persons with whom he did not wish her to be on terms of intimacy? She might sue in Courts of Law or Equity: would the husband be liable to the costs? He had no doubt that such a law as would be in force under this Bill was much better suited to the state of things which prevailed in America; because, owing to the peculiar circumstances of the country, it there worked well. The evidence taken in 1868 was very strong and very decided, as to the favourable operation of the law in America: it was stated that no mischief had resulted from it in that country. Eminent men were examined, whose testimony was to that effect. Previously to 1840, the law, regarding the property of married women, was the same in the United States as in England; but, at that date, it was changed. Mr. Cyrus Martin Fisher, a member of the Bar of Vermont, to the question—Should a wife having property contribute towards the family expenses?" replied—"It is contrary to the American idea (and so says Mr. Cyrus Field) that any part of the wife's fortune should be used to contribute towards the support of the family. A man ought to be, and is, considered clever enough to be at least able to support his family without calling upon his wife.Again, Question 536,You have said that the responsibility of the payment of household debts lies chiefly on the husband. Suppose the wife, instead of contribut- 612 ing to the establishment, squandered all her money away, would the whole of the responsibility in such a case rest on the husband?"—"Certainly, to the extent of all his property. She might squander her fortune just as quickly as she saw fit." Q.—"She could have no responsibility whatever?" A.—"Not the slightest, so long as his property was in existence." Q,.—"Suppose she chose to squander her money on some other individual, would that make any difference?" A.—"It might create certain unpleasantness in the family, and the tradesmen might require them, when they wanted anything, to pay for it at the time." Mr. Cyrus Field said the same—"Whatever the distress of the husband, the wife is not legally bound to relieve him.Now, was that a state of things which it was desirable to see introduced into England? There were three peculiarities in the relations between man and wife in America, as compared with those in England—first, complete equality of the wife with the husband—no subordination; secondly, greater facility of divorce. Drunkenness, or even desertion, was a cause for a divorce a vinculo matrimonii, with leave to marry again. This facility of divorce enabled married persons to throw off when they liked disagreeable responsibilities. But in this country, where we regarded marriage as indissoluble, except for adultery, such a state of things would be intolerable. Again, in America the men like married women to retain, at least, a large portion of their fortune, in order that it might be available for the family in the case of evil results arising from the over-speculation to which too many of the men were addicted. What he had now stated was what had occurred to him in respect of the wealthy classes; but when he came to consider the case of the poorer classes the case was altogether changed. There were in this country 800,000 poor women whose earnings must be protected, because those earnings were the very existence of themselves and their children. The principal of the Co-operative Society of Rochdale spoke strongly of the thrift, skill, and industy of women of the class to which he was now referring; and Mr. Mundella, the hon. Member for Sheffield, who employed 2,000 women in his own works, and who was a man of intellect and experience, had given valuable evidence, showing the necessity of protecting the earnings of such women. The women of the working classes assumed a very different position as regarded the family from that occupied by women of the higher 613 classes. The women of the working classes discharged many more duties than were discharged by ladies. The, wife of a working man was the moving principle of the whole family. Everything relating to it was under her care, and she had no nurses or other servants to assist her. It was therefore of the utmost importance that everything should be done to protect her earnings for herself and children. The women of that class were much superior to the men in tact, sound judgment, and economy; and yet, melancholy to say, there were instances every day of the homes of such industrious women being swept away by the rapacity of bad husbands. Such women frequently got their families and homes into a state of comfort and good order by means of their industry, and when this had been achieved the bad husband returned and made away with all the fruits of a woman's hard earnings. It was absolutely necessary to have fresh legislation for the protection of these women. The protection order system was insufficient. Protection orders were only granted after desertion; but it often happened that everything the woman had was carried off before the desertion. Again, magistrates did not think an absence of a month or two months constituted desertion; and yet bad husbands were in the habit of going off for such periods, and returning to seize and carry away with them what their wives had put together by means of their own industry. Another fact that made the protection order system ineffective was that in numerous cases women could not be got to go before the magistrates. It was marvellous to see with what readiness women overlooked and forgave the bad treatment of husbands at the least word of kindness from those men. Mr. Mansfield, one of the metropolitan magistrates, stated that he looked upon protection orders as of little or no benefit. In his district, with a population of 300,000, only 14 such orders had been granted, while the rejections of applications for them only amounted to the same number. He would read to their Lordships a letter from a woman a Manchester. She wrote thus—It is scarcely possible to calculate the disappointment felt last year when the Bill did not pass. … In this large city so numerous are the cases where the woman, though the breadwinner, has no chance of protecting her earnings, that it is useless to select isolated cases. … 614 Our first men of business, our teachers of religion, and our working classes, are unanimous in their desire for something to be done. … The amount of money earned by women in England is almost incredible. … It is sad to reflect that while the question is delayed thousands of hard-working, struggling women are reduced to the brink of ruin, and with their children are often found in a state of the deepest destitution.She went on to say, and he could corroborate the truth of it, that—It is a great wonder to find a steady, industrious workman opposed to the measure. All our mechanics are eager to sign our Petitions, and express the most anxious interest in the coming discussion. Even the wilder among them frequently wish to sign, because they say the protection of their wife's earnings is a safeguard for their families.Now he believed that the mere declaration by law that the earnings of the wife were not the property of the husband, but were the wife's own lawful property, would of itself have a great effect. At present when the husband wished to lay his hand on his wife's earnings she knew that the law sanctioned his claim, and she yielded to it; but if it was known that the law was on her side she would insist more firmly and successfully on retaining her property, and the husband himself would often be induced to respect her legal right. At any rate, if the husband desired to get hold of her property he would try to do so by wheedling and coaxing rather than by violence—and he was afraid that in many instances they would still give up their property to worthless husbands. In conclusion, he felt convinced that if such a measure were passed, although it might not achieve all the results that were desirable, it would do much for the protection of a most meritorious and defenceless class of women.
THE LORD CHANCELLOR
said, that, feeling as he did the great necessity which existed for protecting the class to which the noble Earl had so feelingly referred, he could not resist supporting the second reading of the Bill. He was most thankful that the Bill had fallen into the hands of his noble and learned Friend (Lord Cairns), who proposed to refer it to a Select Committee, and by whose aid and suggestions he was confident that an effective measure might be produced, free from many of the objections to which the one before their Lordships was now open. It was a great mistake in the Bill not to distinguish the difference 615 between the two classes. With regard to the rich, the wife at present had considerable—he did not gay in every case adequate—protection from the ordinary form of settlement adopted at the time of marriage. The "common form" settlement gave the woman a life interest for her separate use; to that was added a restraint against her being able to anticipate her income; then a life interest was usually given to the husband in the event of his surviving her; then it provided for the children, if there were any; and if there were none it gave the wife the power of disposing of her property generally by will. First, the separate use was a creation of the Court of Equity, it being thought right that a married woman should be protected from the severity of the common law, which handed over the whole of her property to her husband. But, instead of effecting its object, it was found that the separate use, without more, subjected the wife to the great difficulty of resisting her husband's importunity; therefore, a new protection for her was devised in the shape of the restraint upon anticipation. In the case of a man, if he had any property at all, he must have all the power over it—he could dispose of it or alienate it as he pleased; but, in regard to a woman, the Court of Chancery had invented a means of protecting her against her own weakness by saying that, as long as she was married, but no longer, she should be fettered against anticipating her property. That system was found to have some inconveniences; there were occasions when it was desirable to advance the children in life and provide them with an outfit and the like; and although there should be powers for that purpose in a well-drawn settlement, yet it was often overlooked; and a scheme might be devised for improving those settlements, and still taking care that the woman should be no loser thereby. In France and other countries, under the Code Napoléon, there were two modes of protecting the wife's property; there was the "separation of goods," where the wife had the absolute possession and administration of it; or the "community of goods," where the husband had the administration of the joint property, but subject to account for the wife's share—and not only that, but if there was the least intimation on the part of the wife to the proper 616 authorities that he was about to expend it wastefully, they interposed for its protection on her behalf. With respect to the case of the poor in this country, their position was different in this matter from that of the rich. By the common law the whole of the wife's property became the husband's. The whole of England, indeed, had not adopted that part of the common law. The City of London, for example, wise in its generation—and it had at different times shown many tokens of its wisdom, adopting in various respects the law of a higher civilization—allowed by its customs married women to carry on shops or business independently of their husbands, with their own means and for their own benefit: and it would have been well if that had been a general custom throughout the country. Undoubtedly, the hardship to married women of the poorer classes had been very great. He had known instances of industrious women, in the position of servants and housekeepers, who had saved a little money, and married men who afterwards turned out to be good for nothing. They then set up a business with their small accumulation of capital; the business began to thrive, when immediately the husbands pounced upon them, swept away all they had got, and reduced them to beggary. Those cases were by no means uncommon, and urgently required a remedy; and, so far as this part of the Bill was concerned, he hoped to see it carried this Session. Some parts of the Bill, however, seemed to him open to objection. The 1st clause gave to a married women the same power of acquiring and holding property, and of contracting, as if she were unmarried. He was afraid this provision would not be of very great effect; for he feared the result, in many cases, would be that, if she had the full control of her money, it might all find its way during the honeymoon, or soon afterwards, into the hands of her husband. He had seen a statement made in support of the Bill that many a woman was wiser and stronger than her husband. If so, the woman certainly did not show her wisdom in marrying a man inferior to her in mind, but rather yielded to her affections. Again, it was urged that the husband was not always in the right; but yet that he had the power of stopping the supplies on all occasions. No doubt, it was monstrous to say the 617 husband must be always in the right; but, on the other hand, somebody must regulate the affairs of the family; and if the husband said they must go to Italy to live, and the wife replied that she would far rather remain in England, he held, for himself, to the old-fashioned notion that the head of the family must be the husband. He thought the trainers of the Bill had had some misgivings as to the wife's real property; for that part of the Bill did not appear to be so philosophically carried out as the other parts, or as they might have expected. The proviso of the 1st clause did not permit a married woman to dispose of her real property as completely as her personal property, but restrained her from doing so otherwise than by will. This was inconsistent with the philosophic completeness of other parts of the measure. By the Bill the husband remained liable for all his wife's debts except two kinds—namely, debts which she had contracted before marriage; and he was not to be liable in damages for his wife's torts. The inference was that he was to be left responsible in all other respects for her debts. He would not pursue the details of the measure, which he could assure the noble and learned Lord he had no desire to treat in a carping or captious spirit; and he believed that the 10th section of the Bill might, under the noble and learned Lord's management, be made to work out all that was desirable. The 10th clause said where any property was in dispute between the husband and wife either party might, by an inexpensive process, have recourse either to the Court of Chancery or to the County Court in which the parties resided, where such an order might be made as appeared right. If that power were expanded, and if every woman were enabled, when she came into possession of property not disposed of by previous contract on her marriage, to go to an authority who would say what was right and proper to be done, a great deal of good might be effected.
§ LORD LYVEDEN
said, he desired to point out the position in which their Lordships were placed by the manner in which the Bill had been submitted to their consideration. Towards the end of last Session—not later in the year than the present time—this Bill came up from the House of Commons, and was introduced to their Lordships' notice by 618 his noble and learned Friend beside him (Lord Penzance). But when his noble and learned Friend came to move the second reading, he was so overwhelmed by the arguments urged against the measure that he declined to proceed with it. One of the chief opponents of the measure was the noble and learned Lord who had charge of this Bill. [Lord CAIRNS: No!] The noble and learned Lord made a speech in which he said he disapproved most of the details. [Lord CAIRNS dissented.] However that might be, the House was aware, knowing, as they did, the greatness of the noble and learned Lord's powers, that he had now made but a very meagre statement with regard to this measure, and he (Lord Lyveden) had come to the conclusion that if the noble and learned Lord's acuteness of argument could find so little to say in favour of the Bill it could not be worth much. At all events throughout this discussion all the arguments had been against the Bill, except with respect to one point—namely, that a profligate husband ought to be prevented from throwing away the property of his wife. To all the other provisions of the Bill exception had been taken. In the position in which the House was placed it was absolutely essential that they should come to some conclusion as to the course they should adopt. If the Bill were to be referred to a Select Committee, their Lordships might be induced to consent to the second reading; but unless that was so done he should be prepared to vote with his noble and learned Friend near him against the second reading. If that portion of the Bill to which objection was taken were to be struck out by their Lordships the measure was certain to be repudiated when it went back to the House of Commons. He must own that the description which had been given of the Bill, that it would revolutionize the whole Law of Marriage, appeared to be just, and he quite agreed with the noble Earl opposite (the Earl of Shaftesbury) that they ought to touch very tenderly everything connected with that subject. For his own part, he should be decidedly in favour of rejecting the Bill altogether unless the noble and learned Lord, when he replied, should explain what were the clauses that he proposed to alter. All were agreed as to the necessity of providing that the earnings of poor women 619 should be secured to them; but he feared that if the Bill passed in its present shape it would introduce discord and bitterness into every house in the country.
§ THE DUKE OF CLEVELAND
said, the very able and emphatic speech of the noble Earl opposite (the Earl of Shaftesbury) ought to have made such an impression on their Lordships that the Bill, if passed at all, should be very considerably modified; and, therefore, if it were read a second time, he hoped it would be on the express understanding that it should be sent to a Select Committee. Everyone felt that there was a great evil to be redressed, and that when the property of a woman was placed in jeopardy by the misconduct of her husband protection ought to be afforded. There was therefore no question raised that it was desirable to legislate in the direction of the first part of the Bill; but the greater portion of the Bill would entirely subvert the principles of the law heretofore existing with respect to marriage. Objections of such force had been urged to the Bill that it would be hardly just to the community at large to pass it, seeing that evilas of great magnitude were likely to arise from its operation. The question, however, which they had to consider now was how they were to deal with the Bill. He had been struck, as the noble Lord (Lord Westbury) had been, by the very tender manner in which the noble and learned Lord opposite (Lord Cairns) had touched upon some of the points involved. No doubt the noble and learned Lord dealt in a very particular manner with that portion of the Bill about which there was no difficulty in dealing; but the other portions of the measure he treated after a very different fashion. The question their Lordships had to ask themselves was this—If the Bill were sent to a Select Committee and came back so altered and amended as to be brought into harmony with the views entertained by almost all who had spoken on the subject, would it stand any chance at this period of the Session of being accepted by the other House of Parliament? In his opinion it would be better for their Lordships to confine themselves to those parts of the Bill which referred to the protection of the earnings of married women, because the evil with which it dealt was admitted by all, and it would not be well that this Session should be 620 allowed to lapse without endeavouring to apply a remedy. But if their Lordships were to alter, as he believed they would, a great part of the measure, it was very doubtful whether the other House of Parliament would accept it. A Select Committee might so alter it that it would be no longer the same measure; but, on the whole, he thought the best chance of legislation at this period of the Session would be if they confined themselves to the first portion of the Bill.
§ LORD CAIRNS
desired, in reply to the remarks of his noble and learned Friend (Lord Penzance), to point out that the noble and learned Lord had himself moved the second reading of a similar Bill last year, and that he had expressed a hope that their Lordships would show their readiness to consider the question by agreeing to the Motion, so that the re-introduction of the Bill in the present Session might be facilitated. He could not help thinking, therefore, that his noble and learned Friend was open to the charge of inconsistency in taking the course he had taken that evening.
§ LORD PENZANCE
said, that when he moved the second reading of the Bill last year, he had expressly stated his disapproval of all those provisions of which he had expressed his disapproval on that present occasion.
§ LORD CAIRNS
said, said, that if his noble and learned Friend had made that evening such a speech as he had made last year, it would be utterly impossible for him to suppose that he was not in favour of the Bill. Both his noble and learned Friends opposite, indeed, had with great ingenuity conjured up spectres to frighten their Lordships with respect to the measure. They contended that one of its results would be that husband and wife would be able to sue one another—as if that were not a thing which happened every day the sun rose in cases in which property was concerned. He might also remind his noble and learned Friend who spoke second (Lord Westbury) that every woman in England who had property to her separate use might make contracts, might accept Bills of Exchange, or buy racehorses, if she had a mind to do so, and that those contracts would be valid. What objection in principle then could there be in making the law applicable to married women generally? It would 621 only do universally by law what was now clone in particular cases by contract. Then the noble Earl (the Earl of Shaftesbury), who made a speech of great interest, pointed out that if a married woman were to get a house to herself she might, under the provisions of the Bill, if she so pleased, preclude her husband from entering. That was, however, a right which any woman might at the present moment exercise with respect to a house which was her property. Again, as the law now stood, any woman might purchase jewellery with her settled income, and it would be her own separate property. She might keep it for her own use, or give it away in presents if she thought proper; and there was nothing to prevent her from accepting presents of jewellery for her own separate use—so that there was little or no force in the objection urged by the noble Earl on that point. It was further stated in opposition to the Bill that it contained no provision rendering it obligatory on the wife having property of her own to contribute to the support of her children. But a wife under the Bill would be subject to the same obligations in that respect as now. He apprehended that if the children were starving, and the wife had the means, she would be liable equally with the husband. [Lord WESTBURY: Only under the Poor Law.] Just so, and that was the only way he knew of in which a father could under the existing law be made liable for the support of his children in the last resort. He was not a promoter of the Bill, he only had charge of it. Nor was he responsible for many of its provisions. He must, however, say, in reply to the noble Duke (the Duke of Cleveland), that the Bill could in no sense be said to have passed sub silentio in the other House of Parliament. It had, in fact, attracted considerable attention there. In a previous Session it had been referred to a Select Committee, which comprehended some of the most eminent Members of the House of Commons, and they not only considered the Bill clause by clause, but took evidence upon it. During the present Session there was a rival Bill, and upon a Division this Bill was preferred. He had not taken charge of the Bill from any desire to set up abstract theories of philosophical principles with regard to the rights of married 622 women; nor dad he desire to alter the practice of this country in reference to settlements, or to the proceedings relating to property at the Court of Chancery. He considered the main principle of the measure to be that wherever money and property had been acquired by a married woman by virtue of her own industry, whether bodily or mental, she was entitled to the property so acquired for her separate use, just as much as if it was actually settled upon her, and with that principle he entirely agreed.
§ LORD WESTBURY
said, he was quite content with the assurance of his noble I and learned Friend with regard to the principle of the Bill. It was, he understood, limited to the settlement of property acquired by the woman's own labour, mental and bodily.
§ Motion agreed to; Bill read 2a and referred to a Select Committee.
§ And, on July 4, the Lords following were named of the Committee:—
|D. Buckingham and Chandos.||L. Dinevor.|
|L. Stanley of Alderley.|
|E. Airlie.||L. Clandeboye.|
|E. Carnarvon.||L. Westbury.|
|E. Morley.||L. Romilly.|
|E. Lichfield.||L. Cairns.|
|L. Bp. Gloucester and Bristol.||L. Penzance.|