THE WAY WE LEGISLATE.
THERE are not many instances in the history of legislative reform in which the object striven after has been so completely and conspicuously attained as in the case of the Married Women's Property Committee. Founded in 1867, with the aim of placing married women in the same position before the law with regard to property as men, in the year 1882 it has witnessed the passing of an Act carrying out the desired change almost in the terms it has dictated. But the complete success attending the Committee's efforts is not more remark- able than is the history of those efforts, narrated at the final meeting of the Society last Saturday, as a specimen of the way in which we legislate. Just five-and-twenty years ago, Sir Erskine Perry carried in the House of Commons, by a majority of 120 to 55, a Bill which, in its main features, was identical with that which has just become law. For some unexplained reason, however, the Bill did not proceed beyond a second reading, and the subject slept for some years. In 1867, the Married Women's Property Committee was formed, and in the following year, at the instance of this Committee, and of the Law Amendment Society, Mr. Lefevre introduced a Bill similar to that of 1857 in the House of Commons, and after a long debate, in which Mr. John Stuart Mill and Mr. Lowe advocated the measure, the second reading was carried by the
casting vote of the Speaker, 133 Members voting on each side. The Bill was then referred to a Select Committee, of which Mr. Lefevre was Chairman, and evidence was taken as to the hardships suffered by women under the existing state of the law, and as to the good results which had followed from re- form in many of the States of America. The Committee unanimously reported in favour of the principle of the Bill, but was unable, from want of time, to consider the clauses. The following Session the Bill was again introduced, and was submitted to one of the strongest Committees which ever sat in the House of Commons on a legal subject, five of its mem- bers having been since raised to the Bench. This Committee, after most carefully weighing the Bill, clause by clause, re- ported it to the House without substantial amendment, and it was read a third time, by a majority of more than four to one. Then, however, began the real troubles of the measure. Not one single Member of the House of Lords took the least interest in the subject. It would be difficult to find a more remarkable instance of the difference between a representative and a privileged assembly. Peers are not more wanting than their fellow-men in feelings of humanity. There are, of course, in the House of Lords men conspicuous by their devo- tion to works of beneficence ; and there is a whole section of the assembly bound by its sacred calling and by the ante- ddents of its members to be specially in sympathy with any social changes likely to redress injustice, and thus to promote the spiritual welfare of the masses of the population. There is also a small band of picked lawyers,—men who have reached the summit of their profession, and who, in the administration of the Law, as well as in the advocacy of almost every variety of private interest, should have become aware of the points in which the existing system presses hardly, and in which well- considered reform is called for. But there is a want of motive power behind all these well-intentioned and experienced per- sons. Not one social reformer, not one Bishop, not one party leader, could be induced to take the faintest interest in the Bill; and when, at last, one Law Lord consented to take charge of it, those who heard the speech in which he introduced the measure to the House might have been puzzled to know whether he was an advocate or an opponent. He sneered at those who supported the Bill on the grounds of equity and justice, and proposed the second reading only with a view to the alteration of the Bill in a Select Committee. Under such circumstances, the Bill naturally went no further that year. In 1870, it was again introduced in the Commons, and passed through all its stages. In the Lords, Lord Cairns took charge of it, but confined his support to the clauses securing to married women their actual earnings, expressing disapproval of the main principle of the Bill. The Bill was thereupon referred to a Committee, upon which all the great lawyers of the House had seats, and it might have been ex- pected that at least as statesmanlike a measure would result from their deliberations as from those of the Select Committee of the House of Commons in the previous year. The Committee, however, looked upon the Bill as a bugbear. They could not free their minds from the influence of two statements, both of them, to a large extent, erroneous. A man, they said, was bound to maintain his children, and a wife could pledge her husband's credit ; therefore, it was fair that the husband should have the wife's money. The answer is obvious enough, in each case. A father is, no doubt, bound to keep his children off the poor-rate, but nothing more. He cannot be compelled to maintain them in a condition suitable to his own station in life, so that the burden imposed upon him is of the smallest, and certainly not such as to warrant his appropriat- ing the whole of his wife's fortune. Moreover, what could be easier than to enact, as is provided by the Act of last Session, that married women having separate property shall also be liable to the parish for the maintenance of husband and children ? The other difficulty was still less relevant. A Wife can only pledge her husband's credit as his agent, and the agency depends upon the circumstances of each particular ease, and does not extend beyond necessaries. However, the Law Lords could not see their way over the barriers they had thus themselves erected to reform. They shrank from supporting any alteration in the general status of married women ; but particular facts being too strong for them, they cut and snipped and patched the Bill presented to them until it issued from their hands in the form of the Act of 1870. Isolated provisions of this Act, such as those protecting the earnings of married women and their deposits in Savings Banks, have, of course, been productive of great benefit ; but the A et was marred by distinctions between women married before and after its passing, between
property coming to a married woman as next-of-kin and under a will, and by other distinctions based upon no general prin- ciple. Its provisions as to stocks and shares were cumbrous and difficult to work ; and like other alterations of the law which change particular effects without varying the underlying doctrine, it was speedily found to lead to extra- ordinary anomalies. This, indeed, was foreseen by the repre- sentatives of the movement in the House of Commons ; and it was mainly because they believed so bungling a piece of legislation could not remain long on the Statute Book without necessitating further reform, that they consented to promote its passing. Twelve years, however, were still required to bring about the desired result. One of the most glaring enormities resulting from the Bill, that by which creditors of a woman before marriage were deprived of all remedy against either husband or wife after such event, was removed in 1874, but no further progress was made. So lately as 1877, not .a single Peer could be found to advocate a thorough mea-
sure of reform. It may well be matter of surprise that in 1882 not a single Peer dissented from a measure embodying every item of the change which had been so long scouted.
Is it possible that admirers of the House of Lords can find in this story an example of that salutary action which they ascribe to their favourite institution ? The Peers are credited with correcting and improving hasty legislation. But here they have adopted, after an interval of many years, precisely the legislation which was first offered them. They are some- times said to do their legislative work in a more scientific manner than the Commons, uninfluenced by those strong pass- ing currents which agitate the popular assembly. But here the Commons turned out the statesmanlike measure which at length became law ; the Lords fathered an Act of the most stop- gap, inartistic character,—a disgrace to the Statute Book, which they have been glad to sweep away again. The Peers, out of the reach of electioneering pressure, might be expected, when not coerced by a powerful Minister representing the popular voice, to act by the light of dry reason, and to require con- vincing by solid argument. But what arguments have been addressed to them on this subject between 1877, when to a man they objected to the proposed change, and 1882, when to a man they have approved it ? One explanation, and one only, can be given of so sudden a conversion. The bulk of the House care very little about such matters, one way or the other, and leave the few lawyers to arrange them among themselves. A wave of legal reform swept over the mind of the Con- servative ex-Chancellor, his Liberal brothers in the neighbour- hood of the Woolsack saw their opportunity, and matters advanced with a bound.
In one respect only has the House of Lords rendered good service in this, as in some other cases. At a time when Obstruction reigns in the Lower House, progress can be made more quickly in the more peaceful region above. A Bill comes down with a weight of authority behind it which overcomes a good deal of mere party opposition, and thus with the timely aid of the grouse, a comparatively quiet and rapid passage is secured through the Commons.
There is, however, another reflection which the history of this Act gives rise to. It illustrates the quiet force which is in this country continually accumulating behind movements
for social reform, like that just accomplished. The occa- sional public meetings and the more frequent drawing-room meetings held on such a subject are but slight outward indica- tions of what is going on. It is mainly the spread of information, the gradual bringing-home to numberless people by means of particular cases the hardship of a law, which, in the long-run, at once disarms opposition and gives sufficient momentum to the attack. Law Lords will not act at the bidding of a few who have studied a grievance, but are set in motion by a wide- spread, though perhaps quietly expressed, feeling in the com- munity. But there is still another factor. Progress is not always at the same rate. With a so-called Conservative reac- tion comes a certain check to all social progress. It is not stopped, but it becomes slower. Then, at intervals, comes another rush of popular feeling. Professed advocates of wholesome change are in power ; there is a bad time for all abuses. If the way is blocked for the particular changes which have been most talked of, the advancing tide finds channels elsewhere, and then quite unobtrusively come about reforms, such as that now accomplished in the status o f the married woman, which have been long discussed, but have never been placed in the forefront of party agitation.
Previous page
