HL Deb 06 May 1925 vol 61 cc58-66

LORD DANESFORT had given Notice to ask His Majesty's Government whether in view of the wide legislative changes that have been made in recent years in the status and rights of married women they will appoint a Select Committee to consider the state of the law governing the liabilities of a married man in respect of the torts and debts of his wife, and to report what alterations are necessary or desirable.

The noble Lord said: My Lords, in asking the Question which stands in my name I propose to confine myself entirely to the question of the responsibility of the husband for his wife's torts or civil wrongs, and I do not propose, at arty rate to-day, to raise the question of the responsibility of the husband for the wife's debts. The law as it stands to-day upon this question of the wife's torts is in a very remarkable state. It has been decided by the highest tribunal, namely, the House of Lords, that the husband is liable for torts committed by the wife during the marriage, and that he is liable even though at the time the wife is separated from him, unless they have been separated by an order of Court.

We may wonder why such an anomaly should exist. Let me give two illustrations of the way in which this law works. A wife, without the knowledge or consent of the husband, publishes a serious libel. The husband can be sued along with the wife, and if damages are recovered they can be recovered from the husband, although he had no knowledge at all of the wrong. I will give another case—a very recent one. A woman committed a gross fraud upon a third person. The husband had no knowledge of what was being done. An action was brought by the defrauded person against the husband and wife, and a verdict was given for £12,000 damages. The Judge, most unwillingly, according to the existing state of the law had to say that the husband was liable for the £12,000 damages awarded for a wrong committed by the wife.

The reason for this state of the law is that it is a survival of some of those old Common Law doctrines as to the status of a married woman which, according to our modern notions, seem to be somewhat crude Let me refer to some of those doctrines. At Common Law the husband and wife were one, but, unfortunately for the wife, that one was the husband, because, on marriage, the legal existence of the wife became merged in that of the husband, and she was incapable, with some slight, unimportant exceptions, of acquiring or enjoying any property independently of her husband, or possibly—a more doubtful advantage—of being sued apart from her husband. That was not all. According to the Common Law the moment a woman married the whole of her personal property which she had at the time of marriage, or which she acquired during marriage, became vested in her husband to do what he liked with, and, as regards her real property, the husband became entitled to a life interest in it, and was able to dispose of that life interest.

The position of a married woman as regards both her legal status and her property has been most materially altered during the last forty years. It is quite true, by the beneficent action of the Courts of Equity, the hardships imposed upon the wife by the old Common Law were to a large extent removed without legislation, but within the last forty years legislation has been passed which has had the effect of placing a married woman in a position of independence, and making her practically independent of her husband, as regards her property and status. The Married Women's Property Act was passed in 1882, and the effect of that Act was that a woman married in or after 1883 could acquire and dispose of property as her separate property, just as if she were a man, and I need hardly remind your Lordships of recent legislation with regard to the franchise, by which married, as well as single, women became entitled to exercise the Parliamentary vote, if they complied with certain conditions. Then there is the remarkable Act, passed in 1919, called the Sex Disqualification (Removal) Act, which, to put it shortly, provided that no person is to be disqualified by sex or marriage for exercising any public function whatsoever.

These were sweeping changes in the law. They put the position of married women on an entirely new plane. It might well be thought that the time has come to remove some of those survivals, those anomalies which resulted from the old Common Law, some of which are still in existence. The most glaring of them have been removed, but the particular anomaly to which I call your Lordships' attention to-day—the responsibility of the husband for his wife's wrongdoing committed during marriage—remains. The matter came before the Courts on several occasions, and it was decided that the Married Women's Property Act had not removed that undoubted hardship upon the husband. No later than the end of last year the question came before your Lordships' in your judicial capacity, and the noble and learned Viscount on the Woolsack expressed the opinion, which I think found favour with a great many lawyers, that the effect of the Married Women's Property Act of 1882 was to remove the grievance to which I have referred—the responsibility of the husband for his wife's torts. As a matter of fact, the majority decided otherwise, and the law is as I have stated it, so that that anomaly and, I venture to think, undoubted grievance can only be removed by legislation. It may be of interest to your Lordships that this defect in the English law does not exist in Scotland. If my information is correct, by the law of Scotland a husband is not responsible for his wife's wrongdoing during marriage. My noble and learned friend Lord Dunedin, whom I see in his place, will be able to tell your Lordships, I hope, that I am right in what I have said about the Scottish law.

Your Lordships will note that in my Question I ask the Government whether they will appoint a Select Committee to consider the state of the law in regard to this matter, and to report what alterations are desirable. It may be that the question is so simple that a Select Committee is not required. As a matter of fact, it is common knowledge that the opinion of probably every Judge on the High Court Bench is in favour of this alteration of the law. It is possible, therefore, that the Lord Chancellor may be able to give your Lordships an assurance that this anomaly is so obvious and so much requires removal that he may be able to introduce legislation at an early date to remove it. A Bill of one clause is all that is required, and I do not know of any quarter from which opposition will arise. As a matter of fact, all the organised associations of women, some of which have communicated with me, are entirely in favour of this change in the law.


My Lords, as the noble Lord has pointedly called upon me to say what I think is the law of Scotland, it is the fact that it, has never been the law of Scotland that a woman's husband should be liable for what in that country are called her quasi-delicts and in this country are known as torts. However, as I am appealed to as a Scottish authority, I suppose I must be strictly accurate. There is one exception more seeming that real. By the law of Scotland a wife is preposita negotiis domestecis and, therefore, I am bound to say that if, in settling the butcher's book, she called the butcher a swindling thief because he had charged for a haggis a price that was only proper to collops, I think an action would lie.


My Lords, the noble and learned Lord opposite has rendered a public service by bringing forward a question which has remained obscure for so long, for reasons that are inexplicable. It seems to me that, having in mind the long string of Statutes which have been passed to give the wife a separate political status, a separate status in regard to property and a separate status in the matter of protection, it is monstrous that this principle should remain standing and intact. It is an inheritance, as the noble and learned Lord has said, from the days when by the Common Law of England husband and wife were regarded as one person. It required a long struggle even in the Court of Chancery before Lord Thurlow could establish the doctrine of the separate use. It was looked upon as a great anomaly and a great violation of principle, and so it was; but it was obviously necessary.

We have dealt with many other things which were obviously necessary, but it still remains the law that an unfortunate husband may be subject to damages of £3,000, or any amount, for a slander uttered by his wife with which he has nothing to do, and is not able to prevent. As my noble friend, Lord Dunedin, has pointed out, there is no such law in Scotland; but its principle is tempered, to use their own expression, by the position of the wife as preposita. She may get the family into trouble with the butcher on the ground that she herself has been entrusted by the family with the dealings with him. But that is a very different subject, and a very different result from what is complained of in the Question and has been put before the House, and I hope that the Lord Chancellor, whose views on these subjects are always enlightened views, will assent to the appointment of a Select Committee—if he does not wish to take the direct responsibility upon himself—which may investigate this subject and recommend to us what the enlightenment of the times and the standards which we have reached require.


My Lords, I would say only a few words to your Lordships in support of the change in the law which my noble and learned friend Lord Danesfort has advocated, and which has been supported by the noble Lords who have spoken. It seems to me that this matter should be urged particularly by the women themselves if they are to be considered, as I have no doubt they wish to be considered, independent and logical people. They have, long been claiming that they are the absolute equals of men. They could not get that acknowledged until they had broken a large number of windows, had chained themselves to people's railings and could only be removed with great force, and at last, by those means, men, and even the Legislature, were forced to admit that there was nothing which a man could do that women were not prepared to do with equal violence.

Yet there exists this law, which the noble Viscount, who has just spoken said was regarded as a matter of pleadings and under which a man and his wife are only one person in the eye of the law. Therefore if the wife commits a wrong it has been committed by her husband, and the pleader has never distinguished between the two. When he drew a statement of claim on behalf of the one who had suffered the wrong at the hands of the wife, he included her husband because the law drew no distinction between them whenever she did wrong, though, if she did right, the husband very seldom received any credit for it.

But there was another reason, and mention it because, the reason being what it is, I think the women themselves would particularly wish that this law should be altered. A case came in very recent days before a Court of the King's Bench Division. I think it is the case to which my noble and learned friend alluded. It is the case of Waterhouse and Wilson-Barker. It was tried six weeks or two months ago, and in the course of that trial a very learned and very grave Judge of the King's Bench said:— It was hard on a husband nowadays that he should be considered as being able to keep his wife in order. Selden, an old Common Law lawyer, had written in one of his books that a man's wife was in a somewhat similar position to his pet monkey, and the husband must be responsible for the mischief she did. Selden was a lawyer concerning whom may be said that, excepting perhaps the noble and learned Viscount on the Woolsack, there is probably not such another in the House. Selden is revered everything he says obtains assent in a Court of Law; and that is what he said is the foundation of the law.

Beyond Selden there is another lawyer much revered, and that is Sir William Blackstone. Sir William Blackstone not only knew the law of England, but had a great regard for it. Perhaps not everybody knows that he wrote poetry in praise of it. He wrote many other things, but also these lines about what he called Britannia's law— Unfold with joy her sacred page The united boast of many an age, Where mix'd, though uniform, appears The wisdom of a thousand years. If we go on a little further in the same volume we shall find what this excellent wisdom of our law was. He writes: The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children. So that the pet monkey theory is not the whole of it. The law has been altered. A man may not now beat his wife as he might in the days when Blackstone wrote.

I do not know whether it is commonly known how the law said that he Might beat her. He gives it in Latin, I suppose in order that it might give offence to fewer people:— The Civil Law gave the husband the same, or a larger, authority over his wife: allowing him for some misdemeanours, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere. Blackstone puts it that a man is allowed to beat his wife because he is responsible for her torts. How then is it reasonable that he should be still held responsible for the torts she commits, and yet is not allowed to administer modicam castigationem? The law has decided that he may. Opinion grew upon this subject and Blackstone tells us this:— But with us, in the politer reign of Charles the Second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband: or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old Common Law, still claim, and exert their ancient privilege. This ancient privilege having been taken away it is a well known maxim of the law: cessante ratione cessat et ipsa lex. The law having taken away the power of the husband to see that his wife does not commit these torts by administering to her that castigation which he was accustomed to administer till the politer age of Charles the Second began, it seems to me perfectly logical, and I am sure that I could convince any woman of it, that, as the husband might beat her because he was responsible for the mischief that she did, so he ought not to be responsible for the mischief she does now he is no longer allowed to beat her. I shall not argue this matter purely as a lawyer. I wish to put the woman's point of view. I am sure, regarding themselves as perfectly independent and affranchised, they would desire not to be joined with their husbands more than is absolutely necessary; not to be joined with them in actions in the law; to be able to bring actions themselves, get damages and put the damages in their own pockets, and if actions are brought against them to pay for them out of the same pockets. The simple ground of the equality of the sexes which we have acknowledged demands that this change in the law should be made, and I trust the noble and learned Viscount on the Woolsack will be able to tell us that the Government will promote it.


My Lords, my noble friend Lord Danesfort has raised a question of importance. It is a fact that it was held by the House of Lords, in another capacity, a very short time ago that the old law still exists that the husband may be made a party to an action for damages for his wife's wrongdoing, and may be made responsible for her wrongdoing. I confess that I was not in agreement with that decision. I thought, having examined recent Statutes, especially the Married Property Act, 1882, that the old rule had in law been practically abolished. I was supported in my view by the agreement of my noble and learned friend who is now Secretary of State for India. But the decision of the house was the other way, although in that particular case the husband escaped on a special ground. Still it must, of course, now he taken to be the law that the old rule exists.

As has been said, the rule was founded upon the ancient doctrine that husband and wife are one person. The lawyers of some centuries ago could not conceive of an action being brought against a married woman without her husband being joined, and so strong was the rule that even where husband and wife had been separated from one another by agreement, and had not seen each other perhaps for years, yet if the wife committed a tort the husband might be sued for it. The old doctrine has gradually disappeared and husband and wife for very many purposes, possibly for all purposes except this particular one, are now two separate persons. Therefore the whole reason for this doctrine appears to me to have gone, and in giving my opinion in the case to which I have referred, the case of Edwards v. Porter, in this House I added this sentence— If in this case your Lordships should hold, on the true construction of the Act of 1882, that this injustice has been committed, then the sooner it is remedied by further legislation the better. The noble and learned Lord, Lord Danesfort, has referred to one reason why the change should be made. No doubt it is true that in recent years, and especially since what is known as the Clitheroe case, the old rule that a husband may beat his wife with a stick no thicker than his thumb has gradually disappeared. But there is another injustice which is now caused by the existence of this liability on the part of the husband. As the law stood the wife's property, her personal property, went to her husband on marriage, and the personal property which she acquired after marriage passed at once to her husband. If the husband was liable for his wife's torts, he at all events had her money and had means by which he could meet any damages for her wrongdoing. That state of the law has entirely gone. Under the law of to-day no property of a married woman passes to her husband on marriage or after her marriage, and while this source is no longer available to the husband to meet any claim for damages, the claim for damages still remains. That seems to me to be unjust. We have heard of the rights of wives for some years, but in this case we ought to consider the rights of husbands. The matter seems to me to lie in so small a compass that really no Committee is needed to pronounce on the matter. The Government have considered the point, and they propose at a convenient time to introduce legislation for the purpose of dealing with this grievance. Whether it will be possible to find time during the present Session I cannot say, but at all events, as soon as an opportunity occurs, we intend to bring before Parliament proposals for remedying this grievance.


I have to thank the Lord Chancellor for his most sympathetic reply and to assure him that the legislation which he has promised on this subject will meet with no opposition so far as one can foresee. Certainly the women are all in favour of it, and I cannot imagine that men will oppose it.