Page images

gressive state of civilization, have a tendency to raise the social Tendency of mo

position of married women with respect to dern Legislation to property. In England, it is true, the Common dition of Married Law has introduced harsh rules, peculiarly its Women.

own, and differing from the Teutonic original from which it was derived ; but the modifications which Equity has made may be looked upon as indicative of the demands of the age for more just and more generous legislation.

It will be seen also that the superior position of married women under other systems of law than our own is secured in one of two ways, Either by treating her as a complete partner with respect to all the personal property possessed by husband and wife, and retaining in her the entire ownership over her landed property, or by giving her the ownership of all her property, except such portion of it as may be set apart by antenuptial contract for the expenses of the marriage.

In considering what the general rule should be which the English Legislature ought to adopt, it is important to limit our attention to the class of cases for which any such rule is required.

It would be most unwise and inexpedient for the Legislature to fetter the discretion or power of individuals to make such conditions as they choose in their marriage contracts. All that the Legislature is called upon to do is to lay down a rule founded on just principles which shall come into operation where parties through heedlessness, ignorance, or inability, have made no rule for themselves. Such cases occur when parties marry without settlements, and where property is given or bequeathed to a married woman without an attorney to frame the bequest, or where separate carnings altogether independent of the husband's assistance are acquired by the wife. In these cases the English Common Law gives such property absolutely to the husband, and this rule, in the opinion of your Committee, is branded with injustice.

It is clear that the Legislature, if it determines to increase the legal rights of married women, may either adopt the principle of communio bonorum, or it may adopt the principle of the Roman law, and enact that all a woman's property which is not settled previous to her marriage, shall continue to be

her own.

In weighing the merits of these two principles there is much to be said for each. The community of goods between man

and wife, the administration being left in the Communio Bono- hands of the husband, with equal rights of rum discussed.

succession to the survivor, is deemed by many to agree more with the ideal of a happy marriage than any other that can be devised. We may probably assume that, in the greater number of marriages there is only one common interest and that law would appear to be the wisest which should be in accordance with such a state of things. We have also shown that in France, where the two principles come in competition, the tendency of society is unquestionably in favour of the community of goods.

But your Committee think it would be inexpedient to introduce this system into England. In those countries where it prevails, much greater equality of fortune exists between men and women than with us. In France, owing to the law of partition, a daughter takes an equal share of the patrimonial property with her brother. A Bill which should propose to an English House of Commons to give the wife a half-share in her husband's personal property, would probably have very little chance of becoming an Act of Parliament. Moreover, the system of community of goods requires something like a judicial investigation on the death of either party, in order to ascertain the share of the survivor. The numerous nice questions which arise on partition give rise to voluminous works in the French Law, a specimen of which may be seen in “Pothier's Essai sur la Communauté.” A country which has been long familiarized with the system may bear it, but to introduce it into England with all its complexity would be a serious and startling innovation.

Lastly, under such a system there must be some protection for married women against a dissolute, profligate, or heedless husband, who is making away with the common stock. This is secured by the Roman law as to the dos, or settled property, and by the French law as to communauté, by the power in the wife to obtain a decree of the Court for a separation of property. This does not imply a complete separation, as is often alleged in this country, but is a most beneficial process by which a married woman, with a better head on her shoulders than the spendthrift husband whom she desires to save, is enabled to secure her share of the joint property. But, independently of the evil of driving a married woman to complain in open court of her husband, a husband perhaps whom she fondly loves, it is evident that with the present organization and procedure of English Courts, the classes for whom an improved state of the law is chiefly desired would be practically without any

redress in such cases. To the principle of separate property none of the above grave objections seem to apply. It has the advantage of being

already recognised by Courts of Equity. So Principle of Sepa- that if it were laid down by the Legislature as rate Property.

the law of the land, that a married woman who had married without a settlement should retain and possess property as if she were a single woman, on every difficulty or disputed point that might arise, a satisfactory solution would be found in the course adopted by equity.

The arguments which chiefly present themselves in favour of this principle are its simplicity, and its accordance with the arrangements which women of the wealthier and more highly instructed classes make for themselves. A husband retains his own property on marriage, why should not a' wife ? He is enabled to spend his earnings as he lists; is it likely that a wife and mother will be less solicitous for the well-being and well-doing of her household ? We think probably the reverse is the case, and we feel certain, that if the industrious factory-woman were able to deposit in the savings-bank a portion of her earnings in her own name, the school-pence for her children would be very seldom withheld.

If separate property were recognised by law in married women, it would necessarily follow that the incidents of property should attach. We think that a married woman with separate property should undoubtedly be liable on her own contracts as she is now in equity. We think also, that having separate property, she ought to be jointly liable for the maintenance of her children.

But looking to the respective positions of husband and wife, we do not think the Common Law liability of the husband to maintain his wife ought to be in any way impaired.

The husband, from his sex, from his strength, from the habits of society, has means of earning a livelihood which are not open to women; the latter also, in their normal position, are occupied in household duties by which the labours of the husband are set free. The liability of the husband, therefore, appears to rest on the firmest basis.

Your Committee, on the grounds above set forth, recommend that a law of property as to married women should be based on the following principles :

Heads of New Law of Property as to Married Women. 1. The Common Law rules which make marriage a gift of all the woman's personal property to the husband to be repealed.

2. Power in married women to hold separate property by law as she now may in equity.

3. A woman marrying without any antenuptial contract, to retain her property and after acquisitions and carnings as if she were a feme sole.

4. A married woman, having separate property, to be liable on her separate contracts, whether made before or after marriage.

5. A husband not to be liable for the antenuptial debts of his wife any further than any property brought to him by his wife under settlement extends.

6. A married woman to have the power of making a will ; and on her death intestate, the principles of the Statute of Distributions as to her husband's personalty mutatis mutandis to apply to the property of the wife.

7. The rights of succession between husband and wife, whether as to real or personal estate, to curtesy or dower, to be framed on principles of equal justice to cach party.

[ocr errors][ocr errors]

II. REPORT OF THE COMMITTEE ON Judicial Statistics. Your Committee have taken into their consideration the valuable paper read by Professor Leone Levi on Judicial Statistics, and recognize in it elements of the greatest importance. Such statistics afford the best, if not the only, means of noting the practical working of laws and tribunals, of testing the principles of legal reforms, and of estimating the utility of any system of jurisprudence by the testimony of actual facts. That law reform has been in many cases unsuccessful, and that measures are often passed which neither remedy evils nor supply wants, is mainly owing to the course we have too long pursued of legislating in the dark, and to the fact that we have not made sufficient use of the experience of the Past. These observations apply more particularly to cases where new Courts of justice are to be established, the jurisdiction of existing ones is to be changed, or provisions are to be made for the more efficient administration of the law.

The Paper before us refers to three separate branches of Judicial Statistics; the First dealing with facts relating to crimes and criminals, the Second with facts connected with civil and commercial justice, and the Third with facts illustrating our judicial organization generally. The Committee propose to dwell upon each of these subjects separately; but have resolved, in the first place, to discuss the last of them, as it presents many points of striking interest, and the existing information respecting it is peculiarly defective.

Publicity and public opinion are the two most efficient engines of progress; they are the best correctors of abuses, and constitute the chief strength of really sound institutions. Our Courts of Justice, therefore, so far as their proceedings are open to public criticism, are conducted in a satisfactory manner, and no one questions the ability, impartiality, and integrity which mark their decisions; but where they fail to give satisfaction is in those portions of their administration which are not exposed to popular observation. Had the public been as well aware of the complexity, the tardiness, and the expense of what may be termed the machinery by which legal proceedings are conducted

« PreviousContinue »