Page images

without any serious opposition, have been passed through the Commons. We consider the Government as greatly to be blamed for this; and unwilling as we are, and have ever shown ourselves, to think ill of them, we must freely admit that the censures on all hands pronounced upon their conduct must be joined in by the friends of law amendment. No less heartily, and far more cheerfully, will they join in awarding thanks to Lord Lyndhurst for his invaluable assistance to the great cause of law amendment on this as on so many other occasions. The committee which so altered the Bill as to give it all, or nearly all, the great merit which it possessed, was appointed on his motion; its deliberations were conducted by him; the changes introduced were explained and defended in his able and truly memorable speech; and the Bill, though not in his name, was really his measure. Its postponement must by him be deeply lamented; but that he will early next session introduce it again, we cannot doubt, and we feel assured that it must then be carried.

The County Courts Act has passed, but with important defects. Of these we shall specify only one,—the restricting the salaries to 1,2001., after Parliament had with a wise liberality granted 1,5001. Sir J. Pakington's motion for the latter sum was rejected, not because the ministers feebly opposed it, but because the local influence of the inferior officers in those courts occasioned a great support from the borough members to the clause proposed in their favour, and which was carried against the Government. Those borough members would not vote for doing justice to the judges, because they reserved themselves for the question in favour of the subordinate officers; and it is a fact well understood, that the Government expected to be defeated on the judges' salaries, and were not indisposed, it is confidently affirmed, to that result. The consequence of the restricted salary will be the keeping down the remuneration of the judges while their labours are increased; for it is certain that the provisions of the Act will tend to increase very considerably the number of suits brought in those courts.

Many of these provisions are great improvements; but one is of greater value than all the rest, and its tendency will certainly be to facilitate and thus to increase the proceedings in those courts. A large proportion of the fees, that is the taxes, levied upon the suitors for the expenses of the courts is at length, and after a struggle of several years, removed ; no less than 170,0001. of these burthens are now taken away; and after all men had agreed, both in and out of office, that they were intolerable, that not a word was to be urged in their behalf, to the universal astonishment, Mr. Gladstone came forward as their champion, and actually moved an amendment, to the effect of levying the expenses of the courts upon the suitors, and relieving the rest of the community from their share in the expense of administer, ing civil justice to somewhere about ninety-nine in a hundred of all the parties to all the cases in the country.

It is now seventy years since Mr. Bentham published his celebrated “Protest against Law Taxes ;” and above half a century since his argument was pronounced a complete demonstration by Mr. Windham and other enemies of all violent change, nay even of many improvements which might be required as safe and temperate, but to which they were averse from their habitual dread of innovation. Yet they, including Dr. Laurence, the friend and executor of Mr. Burke, supported the motions made in 1804 against increasing some law taxes, and their support was avowedly grounded on the arguments of Mr. Bentham, whose work was referred to by them, and the difficulty of procuring it especially lamented by Mr. Windham, who joined that great amender of the law in ridiculing the fallacy of maintaining such imposts, in order to check excessive litigation. Half a century has since passed away, and Mr. Gladstone appears as the believer in that absurd fallacy; he is afraid of making law, that is, justice, too cheap. To show how little he has considered the question, we need but to mention the main argument on which he relied—that as one of the parties must be in the wrong, he should pay for the expenses which he has occasioned to the other. But does not Mr. Gladstone know that the tax is paid in the first instance by both parties, before it can possibly be known which is in the wrong; and that, though the sentence condemns the loser to pay, if, as constantly happens, he has not wherewithal to pay, the winner, that is the party found by the judgi inni to be in the right, has to pay out of his own pocket. But we should be ashamed to enter into this question in the middle of the nineteenth century. As often as the complaint was made in the House of Lords by Lord Brougham year after year, that the judges of the Superior Courts were paid by the country, and those of the Courts where the poorer classes were the suitors, and where the great bulk of the causes were tried, fell upon the suitors themselves, there was an universal admission that this intolerable anomaly, this grievous injustice, could not possibly be any longer endured, and that it must be got rid of as speedily as possible. The delay was much complained of, but the report of the County Courts Commission was expected, and till it was made no steps were taken. It came at length, and the Bill, in redemption of pledges so often given to the founder of these Courts, was at length presented. It passed the Lords without the least opposition to that, its most important provision; and Mr. Gladstone alone objected to it in the Commons. But he did not venture to divide. That he should also oppose Sir J. Pakington's motion could after this excite little wonder. Indeed, his opposition might be deemed consistent with his opinion against making justice cheap; for as maintaining the tax upon suitors would have had a direct tendency to obstruct the access to the Court, Mr. Gladstone might contend against giving the judge an increased salary, when his motion went to prevent an increase of his business.

* Mr. Windham's complaint of the difficulty of obtaining Mr. Bentham's work has lately been met by a republication of it by a member of the Law Amendment Society (we believe Mr. J. Parkes). It is inscribed to Lord Brougham as the President, and also as having so constantly urged the relief of the County Court suitor, upon the principles of the “ Protest against Law Taxes.” The editor, to his able observations, has very judiciously added extracts from the debate in 1904, in which Mr. Windham, Dr. Lawrence, Mr. Serjeant Best, and Mr. Fonblanque, as well as Mr. Sheridan, took a part. The pamphlet was published by Ridgway in 1853.

[ocr errors]






OUR Committee have considered the valuable paper of Mr.

Serjeant Woolrych, referred to them by the Society, and have carefully inquired into the state of the law of property as it affects married women, both in its administration by Courts of Law and by Courts of Equity; they have also examined the legislation of other European countries and of the United States of America on the subject; and they have agreed upon the following Report.

In order to understand fully the anomalous character of the Common Law of England as it bears on the property of married women, it is necessary to take a retrospective view of the history and growth of those rules on the subject which distinguish our law from that of other civilized nations.

The rules which regulate the enjoyment of property by married women in Europe are clearly traceable to two distinct

sources, Rome and Germany. Those nations, Marriage Law and Rules as to Property though under very different conditions of civilderived from Rome ization, were probably the first in the ancient and Germany.

world to place the institution of marriage on its proper basis, namely, the perpetual consort of one man with one woman for life, both parties having common interests, and equal rights, dealt out to them by law. The Greeks, retaining or imitating the customs of the East, secluded their wives in harems, and, bringing them up in ignorance, sought the charms and solace of cultivated female companionship in the Lais and Phrynes of the day. The Jews, during the historical period, maintained the practice of polygamy till late in the Christian era, when it was abolished by the Emperors Theodosius nd Arcadius, who prescribed the Roman system of monogamy; though we learn from Selden's "Uxor Ebraica,"

it still prevailed among them during the sixteenth century in Italy and Hungary, as it does even now in India.'

The absence of polygamy, and the independent condition or status of a wife, being first duly established among the Romans and Germans, it naturally followed that their rights as to property were fully recognised by law; but the rules adopted by them on this subject were very different.

In the earliest period of the Republic the rights and conditions of married women were entirely subordinated to the

absolute power of the head of the family, or Roman System.

paterfamilias. The wife passed into the husband's possession under the marriage contract, which pursued the forms of a sale. He had absolute powers over her as over a slave, even, as is alleged by some, to life and death. She had no dowry; she could not possess property; and whatever came to her hands immediately became the property of the husband. The injustice of these regulations was, however, felt by the great legislators of the commonwealth; and the following extract from Fraser on Personal and Domestic Relations describes the condition of the Roman wife at the best period of their laws :

“ The Roman wife was not held to be sunk in the husband; but after the marriage she remained as capable of independent action as before it. Each could possess and enjoy property; and whatever one acquired, the other could have no participation in. The wife's debts could be recovered only from herself, and the husband's were cffcctual only against his own person and property. But the presumption in any case was in favour of the husband; and unless the wife established by legal evidence that the property was hers, the husband, his heirs, or his creditors, could demand it."

The mode in which the independence of a Roman wife, as to property, was maintained, was as follows. Previous to marriage a portion of the wife's property, called dos or dower, was set apart for the expenses of the wedded state. The administration of this settled property was committed to the husband, and if it were of a perishable nature (res fungibiles), he became absolute owner of it; but, if of land, he had no power of alienation, not

See Perry's Oriental Cases, p. 122.

« PreviousContinue »