§ Order of the Day for the Second Reading, read.
§ LORD COLERIDGE, in moving that the Bill be now read the second time, said, that while the measure dealt with serious and important questions, and proposed serious and important alterations in the existing law, it attempted to make those alterations in accordance with the ancient principles of the law of England, and proceeded on lines already laid down. He did not seek to deny that in some families the measure would materially affect the family relations; but it would do so only in cases in which, if they were individually considered, all would admit that those relations sorely needed alteration. No one suggested that, if the Bill came into operation, it would come into operation in anything like a large number of cases; but the fact that the injustice and wrong which it sought to remove did not extensively exist was no argument against a reform which in some cases was very much required. The Act of 1870 was carried through Parliament from the general sense that existed both in this and the other House of Parliament, that the then existing state of the law worked a great and unmistakeable injustice towards married women. The Act did not leave their Lordships' House in the same state in which it entered it; but much as he regretted the alterations their Lordships had felt it their duty to make in the Bill, he felt, and always had felt, that all interested in the question owed a deep and lasting obligation to his noble and learned Friend on the Woolsack for the improvement in the condition of hundreds and thousands of married women effected by that Act. Experience had now shown that the Act of 1870 was a wise and useful measure; 72 and he thought the time had now come when Parliament might be safely asked to make further concessions—and chiefly in the direction of the existing Act. That Act contained two sets of kindred clauses. It gave absolute protection for the personal earnings of married women, and absolute protection for property to which married women might succeed in law up to the amount of £200. It contained a number of clauses by which the position of married women was greatly improved, and it afforded other relief under certain conditions; but it declined to say that which was law for the husband in respect of the contract of marriage was law for the wife also. Rights which would be a husband's by the ordinary operation of law, without any action on his part, were granted to a wife by the Act of 1870, only on her having adopted certain conditions precedent. Now, no one who knew what women were—or, indeed, people generally, would be inclined to think that such conditions were in themselves no slight drawback in the privileges conferred by the Act. He said, therefore, that the Act which was passed in 1870 for the protection of the property of married women, and amended by the Act of 1874, was a just and beneficial legislation—it conferred a substantial boon on married women, and was a great improvement on the law, but it did not go far enough. The Bill now before their Lordships, and of which he was now about to move the second reading was, with scarcely the alteration of a single syllable, the same as that which left the Select Committee of the House of Commons in the year 1873—a Committee chosen without the slightest reference of Party, and consisting of eminent persons. He now submitted the Bill to their Lordships in that shape, because, considering the authority of such a Committee, they might safely approve of the principle of the measure without any apprehension of serious opposition arising in the other House. Another reason why he asked their Lordships to pass it, was that he believed the alteration of the law which it proposed, not only was according to sound and just principles, but was in accordance with the ancient law of this country. In old days a great protection was thrown around a married woman in respect of her landed property. It was true that, 73 by the right of control which the husband had over his wife, he could possess himself of the rents and profits of such property while they lived together; but he could not take the land and alienate it, for the land was not his, but hers: again, the right of dower in the old days, standing not upon contract, but upon ordinary law, had always seemed to him, as a lawyer, to be a most important testimony from those ancient times to the justice of treating the wife as independently securing certain property for herself by right and by law, and not merely by contract, and a testimony also to her capacity of so holding it. In modern times, however, it had come to be held by a fiction of law that the marriage contract operated as an absolute gift, not only of all that the women possessed at the time of her marriage, but of all that she might thereafter become entitled to by inheritance or otherwise; and her right of dower in her husband's real estate might be barred at his pleasure. What this Bill sought to effect was in substance to enact that by the contract of marriage, under the ordinary operation of the law, the property of a married woman should not be taken from her. Of course, it might be made the subject of settlement, as was the case at present; but, by the ordinary operation of law, a woman on contracting marriage would not lose the right in her property. The Bill scarcely differed in a single provision from that which was recommended by the Select Committee of the House of Commons in 1873. Lord Lyndhurst, in a speech delivered on the second reading of the Divorce Bill, pointed out how hardly the law bore against married women, and in his Life of Lord Lyndhurst, Lord Campbell approved the opinions he then expressed. The present state of the law he (Lord Coleridge) contended, could not in justice be longer maintained. In its harshest features it was peculiar to this country. Not long ago a lady of high rank and most exalted character, but unknown to him, applied to him (Lord Coleridge) to ascertain whether any redress could be afforded by the law of England in the case of a wife who was living with her husband, who, without doing anything which would have made an application to the Divorce Court likely to be successful, was making her life miserable, was plundering her of all 74 the property she possessed, and making anything like a decent living or education of their offspring absolutely impossible. He was obliged to tell the lady that as far as he knew, and could understand the case she had laid before him, it was a hard case, but one for which the law of England gave no redress. It grieved him to read the very just remarks contained in a letter he had lately received. His correspondent said—
Once in my life I took some trouble in persuading a couple to marry and to legalize a union which had lasted for many years. I am sorry to find that the woman who lives unmarried with a man has legal rights and protection which she loses when she marries.That showed the unsatisfactory state of the existing law. But there were other cases illustrative of its condition. There was a case in which certainly no one who heard him could have the slightest sympathy with the woman who was the subject of it; but it was a curious illustration of the law as regarded husband and wife in respect of property. It was the case of a woman who married by advertizement. There was a settlement in the case providing, as the woman thought, that her property was to be secured for herself in case of separation. A separation took place not many years after the marriage ceremony was solemnized, and it was then found that by the settlement every farthing of her property passed away from her. Recourse was had to a Court; and the Vice Chancellor, being of opinion that the settlement had not been drawn up in accordance with the intention of the wife, set aside the settlement, and she got her money. Take a stronger case, which was lately brought before the Court of Appeal, where a woman had been carrying on a considerable and successful business, and had saved money. She was carrying on the business at the time of the marriage. She married an old man without a settlement. In three or four months he died, and by the ordinary operation of the law of England, the whole of her property, stock in trade, and money would have absolutely passed to his creditors, as he died insolvent. The Court of Chancery was able to interfere, on the ground that there had been sufficient permission on the part of the husband, after the marriage, to the wife to con- 75 tinue the business in her own name, and to constitute him a trustee of the wife; and that, therefore, in that particular case, the wife had a right to the business and the stock-in-trade. It might be said these were sensational stories, and that it was unwise to legislate upon such cases. But when such cases were mentioned to him, the first question with himself was, not were these stories sensational, but were they true? If they were true, the state of law under which they took place required amendment. He believed that all the countries of Europe, Turkey not excepted, were before England as regarded the relations of married women to their property. The Continental States had in this matter generally adopted the principles to be found stated in their best form in the well-known Institutes of Justinian. He would not take their Lordships through the Codes of the several nations of Europe in relation to this subject; but he would mention that in Holland, where the control of the husband over his wife's property was greatest, yet the property was hers, not his, and if he mismanaged it, he was held responsible to her through the ordinary tribunals of the country. In the great American Republic, which derived its laws and institutions in a great measure from the parent country, and in some of our Australian Colonies, the law of England, in respect of married women's property, had been widely departed from. He could not do better than read the following extracts from Mr. Russell Gurney's speech on this subject in 1870:—We have, however, something better than theory or conjecture to guide us as to the probable effect of the change which I propose. There is, I believe, no civilized country which has adopted the law which has prevailed here. It did, indeed, exist for a time in the United States of America as a part of the English law which the founders of those States carried with them across the Atlantic. But in State after State has it been repealed, and in none have the ill consequences followed which are apprehended by our opponents… We had the strongest testimony upon this point from American witnesses. Mr. Dudley Field, of New York,ֵ told us that 'scarcely any one of the great reforms which have been effected in this State has given more entire satisfaction than this. Mr. Fisher, from Vermont, said—'I do not believe that I have ever seen an individual in the State who wanted to go back to the old law.' Mr. Washburne, a Professor of Law at Harvard University, said—'I regarded the first inroad upon the 76 Common Law with apprehension that it would cause angry and unkind feeling in families. I am so far convinced of the contrary, that I would not be one to restore that Common Law if I could.' The law has been changed, too, among our own fellow-countrymen in Canada, and Mr. Rose, the Canadian Minister, states— 'I have not heard any desire on the part of either men or women to return to the old law.'" —[3 Hansard, cci. 885.]He (Lord Coleridge) was supported also in the change which he proposed by high authority on this side of the Atlantic. Some years ago a Commission was appointed to prepare a Code for India. He found in their Report the following recommendation:—It has been necessary for us in one or two cases to introduce provisions affecting rights as between living persons. We propose that a man shall not, through the mere operation of law, acquire by marriage any interest in his wife's property during her life; but that she shall continue to possess the same rights with reference to it as if she were unmarried, and shall have full power to dispose of it by will.That recommendation was signed by Lord Romilly, Sir William Erie, Sir Edward Ryan, Mr. Lowe, and Mr. Justice Willes, and it now formed part of the Code of India. There was only one other authority to which he would refer, and that, all their Lordships would admit, was the highest possible, it being the opinion of the noble and learned Lord on the Woolsack. The Lord Chancellor, in the course of the debate on the second reading of the Married Women's Property Bill, in the House of Lords, on the 21st of June, 1870, said—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 looked to those great communities across the Atlantic that had sprung from ourselves— the United States and 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.… 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."—[3 Hansard, ccii. 601–2.]It was upon these authorities and in this state of the law that he asked their Lordships to make the change proposed in his Bill, which he believed would be perfectly just and safe. He believed that the experience of other countries 77 entirely disproved the reality of the dangers which many people were, in argument at all events, apt to assume would follow this alteration in the law. Was it true that the domestic happiness and purity of this country were so superior to the happiness and purity of other countries? That was a question which everyone must answer according to his own feeling and judgment; but if it were true, it was certainly not because of the English law which enabled English husbands to rob English wives of their property. The English Law of Settlement and the existence of the Court of Chancery itself were a standing protest against the system of the law as it now stood. There was not one of their Lordships who would, on the marriage of his daughter, leave her unprotected, and to the tender mercies of the English Common Law. If that was so in their own case, why did they hesitate to apply the same principle to all? On the whole, he trusted that their Lordships would assent to his Motion that the Bill be read a second time.
§ Moved, "That the Bill be now read 2a." (The Lord Coleridge.)
THE LORD CHANCELLORsaid, he would state, as briefly as he could, the reasons why he hoped that their Lordships would not give the Bill a second reading. If his noble and learned Friend who had moved the second reading had considered with a little more care the history of what had taken place in that House in 1870, he thought he would have hesitated before he asked their Lordships to accept principles which they had deliberately rejected at that time. When the measure of 1870 came up to their Lordships' House from the other House of Parliament, it contained substantially the same provisions they were asked to approve in the Bill now before the House; but having himself taken charge of the conduct of that measure, he had been been obliged to tell the House that the clauses embodying the principles of those provisions would require complete re-modelling in Committee. Those principles were, on the second reading, strongly disapproved of by Lord Westbury, by Lord Penzance, by Lord Romilly, by the Duke of Cleveland, and in the great part by Lord Shaftesbury, who grounded their objections on the fact that the measure would 78 effect a complete revolution in the institutions of society. Accordingly he (the Lord Chancellor) undertook to so amend the Bill in Committee as to get rid of these objectionable clauses. The Bill went to a Select Committee; and when it came back to the House scarcely a clause remained as when it went up to that Committee. He recollected perfectly well that Lord Shaftesbury, who, on the second reading, had strongly objected to the Bill on the ground that it revolutionized the institutions of society, expressed his gratification at the work of the Committee. That Committee, one of the strongest which ever sat in their Lordships' House, had the whole matter before them. They considered all the arguments and the authorities which had been advanced by his noble and learned Friend, and yet they came to the conclusion to reject all the clauses having the same bearing as those in the Bill now before them. What reason could be shown for re-opening the question now? The circular of the Married Women's Property Protection Association, which advocated the passing of the present Bill, assigned no reason for the alteration of the law which it proposed, and there was the same defect in the Petitions that had been presented to the House in its favour. He wished to ask the attention of their Lordships to what took place on the discussion of the Married Women's Property Bill in their Lordships' House on the 21st of June, 1870. On that occasion Lord Penzance, whose experience as a Judge of the Divorce Court, rendered his views on the subject very valuable, said—
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. If left untouched her right to be maintained by her husband; she would be able to spend her property anyhow 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 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 79 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? "—[3 Hansard, ccii. 603–4.]His noble and learned Friend (Lord Coleridge) had referred to what he chose to regard as the fortunate results which had followed in the United States upon an alteration of the law such as he seemed to desire in this country. But some evidence was given in reference to this point which was not unimportant. The following piece of evidence was quoted in Hansard with regard to this particular point. Mr. Cyrus Martin Fisher was called as a witness, and in the course of his evidence, as reported, the following passage occurred:—'Should a wife having property contribute towards the family expenses?'—'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.'"—[Ibid. 611.]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 contributing to the establishment, squandered all her money away, would the whole of the responsibility in such a case rest on the husband?' A.— '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.'"—[Ibid. 611–12.]80 On all these grounds he objected to the Bill, and also on the ground that the present law entailed no hardship, inasmuch as it left the husband and wife free to contract with each other as to the deposition of their property. He trusted their Lordships would not let it be thought out-of-doors that after all that had passed they were going to re-open this question again. It was settled seven years ago that married women were not to be unmarried so far as their property was concerned, and that they were yet to retain the marriage tie in other respects. The Act of 1870 had worked admirably, and, moreover, it remedied every grievance upon which any person could, put his finger. On every ground he hoped their Lordships would refuse a second reading to the measure. He therefore moved that the second reading be deferred for three months.
§ Amendment moved, to leave out ("now") and add at the end of the Motion ("this day three months.")
§ LORD SELBORNEadmitted that there were several points in reference to which the existing law required revision and amendment; but the matter was one involving so much of detail and requiring so large an amount of consideration and discussion that he did not think the present was an opportune moment for dealing with it. He thought that after the statement of the noble and learned Lord on the Woolsack his noble and learned Friend could not expect to induce their Lordships to deal with the subject—in this Session, at least—and therefore he hoped he would not press the second reading to a division.
§ LORD STANLEY OF ALDERLEYsaid, he would advert to one point in the noble and learned Lord's speech in introducing this Bill. The noble and learned Lord, in holding up the legislation on this point of the rest of Europe as superior to that of England, said that it was derived from the Institutes of Justinian in the Lower Empire; now, the noble and learned Lord would remember that, at that time, men thought like his friend the lady he had referred to, that it was better for people to live together without being married, and if the Roman Empire had lasted longer the Roman Government would have had 81 to give men a bounty to marry. The noble and learned Lord also said that he would not take their Lordships through the Codes of Europe, and he did well not to do so; for he had seen in Portugal the scandal of a woman making her husband who had squandered his money, what was there called a "prodigal," that was to say, making it impossible for him to obtain credit, and incapacitating him for civil rights. He hoped their Lordships would object to the second reading of this Bill.
§ LORD COLERIDGEsaid, that after the discussion that had taken place, he would not put their Lordships to the trouble of dividing.
§ Amendment, original Motion, and Bill (by leave of the House) withdrawn.