Sitting of 5 March 1879

MINUTES.
SELECT COMMITTEE—Hall-Marking (Gold and Silver), nominated.
PUBLIC BILLS —Second Reading—Married Women's Property (Scotland) [1]; Consolidated Fund (No. 1) *.

ORDERS OF THE DAY.
  MARRIED WOMEN'S PROPERTY (SCOTLAND) BILL.
  (Mr. Anderson, Sir Robert Anstruther, Mr. Orr Swing, Mr. M'Laren, Mr. Lyon Playfair.)
  MARRIED WOMEN'S PROPERTY (SCOTLAND) BILL.

    [BILL 1.] SECOND READING.
    Order for Second Reading read.
    MR. ANDERSON, in rising to move that the Bill be now read a second time, said, he thought the state of the benches that forenoon showed, in a very remarkable degree, how little hon. Members cared for parties who had no votes and no representation in the House, for he happened to be aware that the ladies who were interested in this measure had specially requested hon. Members to attend, and yet hon. Members, knowing they had nothing to fear from the votes of the ladies, had paid no heed to their request. He would endeavour to explain to the House the present position of the law in England and Scotland as regarded the property of married women. Previous to 1870, in both countries, the property of married women was alike unprotected, except as regarded the earnings of married women who happened to be deserted by their husbands; but beyond that, a
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    woman had no right to consider her property her own except it was conveyed to her separate use by an ante-nuptial contract. If there was no such settlement she herself, and everything she possessed, went to her husband. Her husband might spend it as he pleased, he might give it away as he pleased, he might will it away as he pleased; and in some cases husbands gave, or even willed, their wives' property to their mistresses, and there was nothing to prevent it. In Scotland there was a certain check upon that, as there a woman had certain rights as a widow. If, when her husband died he left no children, she had a right to one-half of the personal property; and if he did leave children she had a right to one-third. In that respect married women were better off in Scotland than in England; but it was not as wives but as widows, the law not applying to the state of marriage, but only after the marriage ceased. The state of the law in England having remained in the condition he had described up to 1870, Mr. Russell Gurney in that year brought in a Bill to amend it, and succeeded in passing it into an Act. As the measure left that House it was in a good condition indeed; but it had got a great deal knocked about in "another place," and came back to the Commons with a good many alterations, certainly not in the way of improvements. Even in the state in which it did come back it was still something worth having. Under that Act the law in reference to the protection of married women's property in England was this—It protected the earnings, and the investment of the earnings, of married women to their separate use; it protected also their deposits in savings banks, their money in the Funds, their shares in joint-stock companies, and their interest in benefit societies, provided that these had not been acquired with the husband's money without his consent, and provided they had not been acquired with his consent in the way of defrauding his creditors. By the Act, also, a married woman was allowed to insure her own life, or her husband's life for her own benefit. The husband might insure his life for his wife's separate use, free from claims of himself and creditors, provided it could be shown that this was not done for the purpose of defrauding creditors. Again, if the wife inherited personal property

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    by being next-of-kin to an intestate, and not by will, it went to her separate use, whatever the amount; but if she became entitled to personal property by will, and not from an intestate, it was only secured to her separate use if it was not over £200. If it was in the least degree over that amount—if it was even 200 guineas—it went to her husband. That, he thought, was absurdly anomalous. As regarded real estate, if the wife inherited it by kinship from an intestate, the rents and profits came to her separate use; if it came to her by will, her husband got these rents and profits. A married woman in England might maintain an action at law in her own name, and in respect of any part of her separate estate. The married woman's debts contracted prior to her marriage did not involve the liability of the husband except to the amount of such property as he might have received by her through marriage. This important provision was added to Mr. Gurney's Act by the hon. Member for Bristol (Mr. Morley). The separate estate of a married woman was liable to contribute to the parish for the support of her husband, and also for the support of her husband's children, failing the husband's estate. Such was the state of the law in England, with regard to the protection of married women; or, rather, the nominal state of the law—for it appeared doubtful whether if the husband chose to ignore the law altogether, and simply take property from his wife, the law would then protect the wife—there was a remarkable decision in Manchester recently. The law in that case refused to prosecute the husband criminally for going into his wife's house in her absence and taking property that legally belonged to her for her separate use. Therefore, perhaps the protection was a little more nominal than real. But the theory of the law in England, so far as it went, was better than in Scotland. The married women of England enjoyed these advantages for several years before there was any attempt to do anything of the kind for the married women of Scotland. But in 1877 he introduced a Bill, which he had hoped would pass, bringing the married women of Scotland up to the level of married women in England, and, indeed, going a little further; because he proposed to enable a married woman in Scotland to call her own her own,
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    and to make all the property that was justly hers really hers. He endeavoured to avoid the anomalies of the English law, and the difference created by that law between testate and intestate estates. If he could have passed that Bill, it would have settled the question finally on the only footing on which it could be settled—that of absolute justice. However, he was not able to do that. The Government opposed him. The Government admitted that in Scotland they might be allowed to come up to the level of the English Act, but would not let them get one step further. They must, said the Government, adopt the English Act with all its faults and failings. The Bill was read a second time on that understanding—that it was to be amended accordingly; but before the Lord Advocate had agreed on the Amendments to be inserted the Session was well nigh over, and it was agreed between the Lord Advocate and himself that they should pass only the clause for the protection of the earnings of married women. That seemed the most clamant part of the injustice to be remedied. It was desirable to pass that clause immediately, and the Bill was passed with only two clauses—one protecting the earnings of the wife, and another protecting the husband from ante-nuptial debts of the wife, except to the value of what he had received with the wife on marriage. Thus, the interests of husband and wife were equally balanced in the measure as it passed. There was further a distinct understanding on the part of the Lord Advocate and the Home Secretary that, in a subsequent Session, he should be allowed to bring in a Bill that should put the position of the married women of Scotland on a footing with that of the wives of England by protecting their property also. With that view he introduced a Bill last Session, adopting the very clauses of the English Act, and naturally concluded—having regard to the understanding which had been come to—that he would be allowed to pass it. But, instead of that, the Lord Advocate himself put down a Notice of opposition which blocked its path, and prevented its even coming before the House during the whole of the Session. That Bill he had introduced again this year. He believed the Lord Advocate opposed it before on behalf of husbands, and in

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    the interests of children, and because he thought it went too far. He thought the Lord Advocate was wrong, and it rested with him to show that it really was in the interests of husbands that this Bill should not be passed. At any rate, it appeared that husbands failed to see this, for last Session there were many Petitions in its favour, not only from wives, but from husbands also; and if the husbands had been opposed to the Bill, and thought their position was to be injuriously affected by it, they would surely have petitioned against it; but there was only one solitary Petition against the Bill. It had only three signatures, and it was not from husbands, but from a trade protection society. He was, therefore, entitled to infer that husbands had no particular objection to it. If it was in the interests of children that the Lord Advocate opposed the Bill, he would ask who were better able to judge what was in the interests of children than the parents themselves? If mothers and fathers petitioned in favour of the Bill, and scarcely anyone petitioned against, it was not likely that it could be a measure to harm the children. The Bill did not ask the House to go any further than the parties could go of their own accord before marriage by an ante-nuptial settlement. But the majority of women married without ante-nuptial settlements. Some were too poor to make ante-nuptial settlements—they had nothing to settle; and many who afterwards became rich, and would have made such settlements could they have foreseen that, did not think it worth while to incur the expense involved in doing by deeds and parchments what the law ought to do for them. He wanted to make the law as considerate to the property rights of the respective parties as the parties themselves would have been by getting these deeds and parchments drawn. If it were a wrong thing that a wife should have a separate estate, she ought not to be allowed to have one by ante-nuptial contract. That would be the logical position for the Lord Advocate to take in opposing the Bill. If the present state of the law was a good state of law, they should not allow people to contract themselves out of it. But rich people did contract themselves out of it. All the hon. Members of that House, in ar-
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    ranging marriages for themselves or their daughters, invariably contracted themselves out of the law. The Lord Advocate was bound to show how what was good for his own class was bad for any other class, and that the present state of the law in England had worked badly. That law had been in operation for eight years, and, so far as he (Mr. Anderson) knew, no complaints had been made, except as to its insufficiency—not that it had gone too far, but that it had not gone far enough. But he maintained that the present state of the law in Scotland was unjust to the husband as well as to the wife. That had been abundantly shown on the occasion of the failure of the City of Glasgow Bank. The want of a separate estate in the wife had been very grievously felt by many husbands in regard to this failure. In cases where a wife became possessed of property in the City of Glasgow Bank, her shares in the bank would, if her property had been separate estate, have remained in her own name, and only such separate estate as she otherwise happened to possess would have been liable to pay calls on those shares. But because the wife had not a separate estate, unless it had been made separate by ante-nuptial contract, the shares of the wife went to the husband's name, and every penny of his property was liable to make good the calls on the shares. So that actually this property of the wife, through its not being separate estate, brought absolute ruin upon a number of husbands. That was surely an argument that ought to have weight with the Lord Advocate, who was defending the rights of husbands so strongly. If husbands in Scotland did not petition against the Bill last year, they were certainly very unlikely to do so this year, after such a grievous lesson on the injustice of the present state of the law, and he did not think they would greatly thank the Lord Advocate if he opposed the Bill for them. The Home Secretary was as much to blame as the Lord Advocate. He was sorry they were not in their places to hear his charges against them; but they had distinctly, last Session, broken their pledges by refusing to let this Bill pass. They ought now either to let this Bill pass, or do something themselves. They ought to show in what respect this Bill went further than the English law. If

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    they could not do that, they should say what amendment they desired, or bring in some Bill of their own which would do what they promised should be done. It was no argument at all—and he believed this was the only argument that would be used—that the widow was in a better position in Scotland than in England. What was wanted was protection for the rights of a wife during her married life. The property of widows was another question. He had not attempted to make any sensational speech by giving instances of the wrongs women suffered under the present law. He had appealed only to the justice of the case, and that was an appeal that, sooner or later, must be listened to by the House. He begged to move the second reading of the Bill.
    MR. M'LAREN: I beg to second the Motion. My hon. Friend behind me has so minutely explained the state of matters, that I really do not think it needful to say anything more. What I should say would only be repeating in another form what he has already said. Therefore, without further remark, I will just second the Motion.
    Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Anderson.)
    MR. M'LAGANsaid, he would not oppose the Bill, because he believed it was founded on justice. The Bill did exactly what most hon. Members would themselves do if entering the state of matrimony, by an arrangement in a pre-nuptial contract. He, however, would like one explanation. The hon. Member for Glasgow (Mr. Anderson) stated that the Bill was opposed last year on behalf of husbands and children; but he was not sure if it was considered from the point of view of the interests of the parish: and he would like to know what would be the effect of the Bill if a husband should be reduced to circumstances in which he could not support his children—would the liability of the wife to support the children out of her separate estate be established?
    MR. ANDERSON: Yes; it is perfectly clear without the Bill that the wife will have to do so.
    MR. M'LAGAN: I am glad to hear that. It was as well to bring out that information.
    MR. SHAW LEFEVREhoped that the absence of the Lord Advocate indicated that he no longer opposed this measure, and that the Bill would be allowed to pass its second reading. He thought the hon. Member had done wisely in limiting the scope of the Bill, and making it an exact copy of the English Act. In saying that, he did not wish it to be supposed that he and many other hon. Members on his side of the House were satisfied with the state of the law as regarded England and Ireland. He simply thought that this would not be a desirable occasion on which to raise the wider question. When that wide question was brought up at a later period by the hon. Member for Oldham (Mr. Hibbert), he would be prepared to show that the English Act of 1870 was a very insufficient measure of protection, and highly unsatisfactory in many of its clauses. The hon. Member for Glasgow had adopted the wiser course in waiting for that occasion to support this view.
    Question put, and agreed to.
    Bill read a second time, and committed for Thursday 13th March.
    House adjourned at a quarter after One o'clock.