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re-inarried, had no legal right to prevent her retaining her previous


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At present therefore the general result is that a wife with settled property is not legally bound to her husband, for the deterrents of possible imprisonment, loss of income, and lawful physical restraint have successively been removed. That of possible imprisonment has also been removed in the case of the husband, but he is liable to lose a considerable proportion of his own income. Two very simple remedies seem applicable in these circumstances. In the first place, the Court should bave power to order that the income of a woman who has deserted her husband should be paid to him whether restrained or not until further order, which could be made as of right in the wife's favour when the Court was satisfied that she had returned with the animus manendi. By this means anticipation would still be prevented, while the Court regained some control over women who refused to do their duty. In the second place, the unchangeable facts of nature should be realized anew, and it should be recognized that the wife's primary duty is to live with her husband, and that if she refuses to perform it she is quite as culpable as the husband who neglects to perform his primary duty of maintaining his wife. His primary duty; for though a man who gives his wife a proper allowance but refuses to live with her may be much to blame, her position is not so bad as that of the deserted husband whose wife fulfils no duty whatever to him. From this it seems clear that, from nature's own reasons, the deserting wife is more culpable than the deserting husband (assuming that the latter fulfils his duty of maintenance) and that if there is to be any discrimination, should be more heavily punished. But if the power to imprison should be revived (it was very seldom actually exercised), it could be made to apply to both sexes, and the Court would then have power to prevent innocent persons suffering because others chose from caprice to break their contract. It might be urged that a woman who preferred indefinite imprisonment to living with her spouse would cause a difficulty; but such cases would be extremely rare. One at least seems to have occurred under the old régime, that of Mrs. Barlee in 1822 (reported 1 Addams 301), in which the Court had no discretion but to keep her in prison for her continued contempt. A new statute should give the Court

A a discretion in the matter, so that a respondent in contempt could be kept in prison or released as circumstances dictated.

These two small reforms would restore to the Court its power to deal with this very important matter, and would prevent the injustice of matrimony becoming a compulsory celibacy for any one who desired to avoid this state. Even now, it is legally held a matter of public policy for the spouses to live together, as is exemplified by cases such as In re Moore, 39 Ch. D. 116: the cases of R. v. Jackson and Michell v. Michell are directly in conflict with this principle.

A minor grievance may here be mentioned, which one wellknown writer desires to see removed, that of the practical disappearance of dower which, for the reasons he states, he considers is now too easily defeated. But the questions of dower, of the 'estate by curtesy,' and of the pars rationalis are rather of the liberty of testamentary disposition, which is much greater in England than in most other countries.

The question of a contract expressly indissoluble is one in which the Churches should have a voice; the possibility of divorce certainly gives an artificial ring to a considerable portion of the Church of England marriage service. And to remedy the inconsistency noted above, that possible divorce is an implied condition which cannot be evaded, but separation must not even be alluded to in express terms, a possible separation might be made the subject of bargain in a dissoluble contract. Though as to this, a fairly ingenious practitioner, with the recent cases of Re Hope Johnstone (1904] 1 Ch. 470 and Re Crawford (1905] 1 Ch. 11 before him, might not have much difficulty in framing provisos to this end, assuming that these cases are approved in superior Courts.

As regards the rights and liabilities of the spouses as such in their relations to third persons, the laws which regulate their dealings with their children and creditors are the most important. And with respect to those affecting the children, the jurist with a passion for consistency may have less fault to find with the developments of the nineteenth century than in respect of the law of the spouses

In each case the husband has lost and the wife has gained, but in the latter the wife is not enabled to take her children away from her husband when she likes, which would be the equivalent of R. v. Jackson. The father's common law rights have, however, been considerably encroached on in favour of the mother in the Guardianship of Infants Act, 1886 (as well appears in the case of Re A. & B. infants (1897] 1 Ch. 786 before Chitty J.), and in favour of third parties by the Custody of Children Act, 1891.

But the last-mentioned Act keeps as sacrosanct a doctrine of the Ecclesiastical Law that seems to bave no reason for its survival that could not equally be applied to that discredited in Wilson v. Wilson. When the husband had such dominion over his wife and family, his wishes as to the religion of the latter might have been paramount ; but, according to present notions, a man who induces a woman to marry himn by the promise that their children shall be brought up in her own religion, ought to fulfil it when the time

inter se.


comes. On this footing the case of Re Agar-Ellis, 10 Ch. D. 49, would have to be overruled or modified by statute.

The very large control of the Divorce Court as to children after decree pronounced is discussed and compared with that of the Court of Chancery by Lindley L.J. in Re Thomasset (1894] P. 295, and the right of the Court to interfere with a child over sixteen at the instigation of its father and against its own will is also broached. But perhaps a more burning question is whether in the present day the Court should have power permanently to separate mother and child for any reason other than a breach of maternal duty. In one or two recent cases ladies have broken their undertakings and have taken their child abroad, preferring to live in voluntary exile rather than submit to such a separation, and public sympathy has been unmistakably on their side—though it may be that emotion of this sort is an unsafe guide to legislation.

As regards his step-children, a husband since 1834 has had the burden of maintaining them, whether legitimate or illegitimate; a charge on the wife's property acquired during coverture for this expense would seem equitable (and such a charge might also lie for money paid over to a creditor recovering under a judgment in respect of a tort committed by her).

Unsecured creditors of both husband and wife have still some valid reason of complaint against a state of the law which permits a couple to live in affluence and to get credit without any property liable to be taken in execution for debt; but this is no new development. That the consideration of marriage’ is what the parties choose to make it, and can be used even by a man on the verge of bankruptcy to override creditors is strikingly shown in the case of Kevan v. Crawford, 6 Ch. D. 29; that creditors can be defeated by arrangements of which they are entirely ignorant is clear from Morel Brothers v. Earl of Westmorland (1904) A.C. 11, an even stronger case than Debenham v. Mellon, 6 App. Cas. 24. By the ancient law a wife's property, if unsettled and reduced into possession, was liable to the last farthing for her husband's debts ; by the present law and appropriate settlements it is liable to neither his nor hers, and even the husband by well-known devices can enjoy his own property to the detriment of his creditors. This sanctity of settlement certainly tends to lower credit and might with advantage be modified, even if the novel principle of a maximum settlement as against creditors has to be applied. A very large difference in several disgraceful bankruptcies would have been brought about by this method. And if the principle of Lady Bateman v. Faber [1898] 1 Ch. 144, is kept, that a married woman cannot estop herself to bind her restrained income, that of Stanley v. Stanley seems beyond the point where the line can be legitimately drawn. A woman fitted for the responsibilities put on her by the Married Women's Property Act ought to take the consequences of letting herself be persuaded into sheer fraud. See too Re Reis (1904) 2 K. B. 769, C. A., affirmed in H. L. [1905] A. C. 442.

In conclusion, the whole law on this subject wants revising, not so much by amending details as by being put on a consistent basis, with consistent underlying principles. That a woman ought to have great responsibility, that she ought to have no responsibility whatever, that the spouses must not contemplate separation, that a wife shall be perfectly free to leave her husband if she wishes, that one or other or both ought to be liable for the expenses of their joint household, that neither of them need be, are contradictory propositions for each of which the cases and statutes quoted above stand as authority. And it is submitted that such bewildering paradoxes, however suited for the region. Where nice is nasty, nasty nice; Where vice is virtue, virtue vice,' would be out of place in the law of any country at any time, and a fortiori in England at the opening of the twentieth century.



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CHAPTER VI. Note M. Testamentary Succession.


THE burden of this chapter is that the Will or Testament of

modern law, with its specific characters of being secret, revocable, and posthumous in operation, is unknown to archaic law, and is of comparatively recent introduction wherever we find it. Maine's position is amply confirmed by later historical research, and one or two seeming exceptions which he felt bound to notice have been removed.

Jurists of the seventeenth century, we read in Maine's text, resorted to the law of nature to explain and justify testamentary power. This is almost enough of itself to show that no such power was commonly found in customary law. For the doctrine of natural law was, as we have already seen, a progressive and rationalist doctrine. Its use was to override the commonplace objections founded on lack of authority or even on the existence of contrary custom; and at the time of the Renaissance and even earlier it served speculative publicists in much the same way as the principle of utility (with which it has considerable affinities) has served modern reformers. In fact, the whole conception of individual succession to property, even without a will, is relatively modern. The archaic Indo-European family was, Maine tells us, a corporation, of which the patriarch for the time being was the representative or public officer-or at most, we may add, managing director. Evidently we are not meant to take this statement as if a definite legal doctrine of persons, much less artificial persons, was to be ascribed to the patriarchal stage of society. For in that stage, as Maine also says, a man was not yet regarded as an individual, but only as a member of his family and class; and this is still true to a great extent in Hindu law. Now the modern doctrine of corporations assumes that the ‘natural person’ or individual, considered as a subject of rights and duties, or lawful man,' as our English books say, is the normal unit of legal institutions, and that the collective personality of a group of men acting in a common interest or duty and behaving like an individual is something which

· A new edition of "Ancient Law' containing these notes and an introduction will be published forthwith by Mr. John Murray.

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