"CLARK v. CLARK."
SIR RICHARD MALINS has created some amusement this week by the apparent innocence of his remarks upon the case of" Clark v. Clark." It appears from his judgment that in 1872 a Mrs. George, a widow of about nine months' standing, who had been left by her husband, a solicitor, in possession of seven children, a pleasant house, and a settlement of nearly /500 a year, advertised for a husband in the Matrimonial News. Her reason for advertising does not appear in the reports, but we may rea- sonably suppose that Mrs. George fancied her seven children would prove such an objection with most suitors, that if she wished to attract a second husband she had better go far-a-field. However that may have been, Mr. Clark, a person with "property in America" of a somewhat unreal kind, a widower with four children, answered the adver- tisement, and was accepted without inquiry, or rather, in spite of the advice of the widow's family that she should inquire further. Mrs. George, however, though determined to be re- married, was not quite lost to all considerations of worldly pru- dence, and insisted, as she alleges and the Court believed, that the control of her income should remain with herself. A deed was accordingly drawn up, under Mr. Clark's instructions, by a solicitor who was also her trustee, vesting the life- estate first 'of all in herself, that is, leaving to her its separate control The solicitor, however—upon what instructions, or from what motive, is not known—introduced into the deed an interlineation, vesting the first life-estate in Mr. Clark, and the deed thus radically changed was not placed before Mrs. George until the morning of the wedding-day. It was then read to her in the regular way ; but Mrs. George, either from ignorance of legal language or preoccupation of mind, or both, failed, as she states in her evidence, to understand how completely its character had been changed, and was married in ignorance that she hadsigned away all control of her life-income. She does not, indeed, appear to have discovered or repented the fact for some years ; but husband and wife, as was natural under the circumstances, ulti- mately differed, and Mrs. Clark appealed to the Court of Chancery to declare that she was entitled to the first life-estate in her income,—that is, in fact, that it belonged to herself and not to her new husband. It was argued, of course, that the settlement having been read to her before marriage could not be upset, but the Vice- Chancellor held that it could, for as it had been executed under Mr. Clark's instructions, he was the agent who undertook to have a proper settlement prepared, and this settlement was not a proper one,—that is, one which the Court, if consulted, would have sanctioned. The Court had power in such cases to alter a settlement, as was evident from the decision in "Corley v. Lord Stafford," and he directed this to be done, in such a manner as to give Mrs. Clarke the first life-estate in the income, thus re- investing her with the rights which she had so foolishly for-
feited. He further marked his opinion of Mr. Clark's conduct and that of the solicitor by burdening them with all the costs
they had ineurred in the case, and took occasion to declare for general behoof that he had never before heard of the Matrimonial News, and that he considered such a paper ought to be put down as a public nuisance.
The Vice-Chancellor's ignorance was, we imagine, assumed, in order to give force to his condemnation, and his censure on the Matrimonial News was, perhaps, misdirected. The evil involved in the practice of advertising for wives and husbands consists in the practice of so advertising, and not in the concen- tration of such advertisements in one particular newspaper, the proprietor of which can, if he chooses,—we know nothing about him, good or bad—exercise unusual care in guaranteeing the bona fides of such advertisements. The practice is utterly bad in itself, like every other form of marriage-brokerage, but it is made none the worse by the excessive publicity and vulgarity added to the procedure by resort to a paper like the Matrimonial News. The story seems to us not so noteworthy on that side as on this,—the evidence it offers of the excessive unfairness of the
existing laws affecting property held by women. According to the evidence accepted by the Court, Mrs. Clark was done out of
her property,—we do not mean fraudulently done out of it, but still deprived of it without her consent or knowledge,—solely because she was a woman. She never intended to give away her income. If she had had the same rights as a man, she never would have given away her income. But being a woman, her income, from the mere fact of her marriage, passed away, for her life, in the absence of settlements, to her husband, and a complicated legal arrangement was necessary to protect her in the possession of her own, which ought to have remained hers without any settlement at all. It was, in fact, necessary to execute deeds in order to prevent the confiscation of property which she did not intend to part with,—that is, she was bound, merely because she was a woman, to understand some very technical points of law, or submit to lose what was her own, and what she never intended to give away. A man knowing as little law would have been absolutely safe, for no arrangement would have been necessary to enable him to retain his own. He would have kept it as a right, without any deeds or any necessity for a recourse to a lawyer, and if he had wished to give it away, must have done so by deed. The man, in fact, can only be robbed if he wishes it, while the woman must be robbed unless she appeals to law to protect her against robbery.
Nobody will entertain much sympathy for Mrs. Clark, but it is a case like hers, in which no pity is stirred, that most clearly illus- trates the unfairness, the rank injustice, of the existing law. Here is a woman deprived of an income, carefully settled upon her by her first husband, without any fault of her own, solely because she marries, and because, though she tries to protect herself by repudiating the general law, she is ignorant of or indifferent to legal terminology. However foolish or vulgar her conduct may have been in advertising for a husband, as regards her property Mrs. Clark did nothing foolish, but not only in- tended to keep it, but took all the proper legal steps to break the general law and secure that it should be kept in her own hands. She failed from ignorance alone,—ignorance which would have been no burden to a man, but which, she being a woman, and therefore conventionally assumed to be ignorant of law, deprived herof the property she was trying to keep. The law in fact, because she is weak, weights her with a burden from which it exempts the man, who is assumed to be strong. It is nonsense to argue, as everybody does argue, that she is rightly served, and only punished for her own vulgarity and folly. She was not punished for anything of the kind, but simply and solely for being a woman. She was not less foolish or vulgar before she had married than after, but before she had married her property was her own, and after she was married the Court of Chancery, knowing all the circumstances, and openly condemning her for her part in them, as a mere matter of justice handed the property back to her absolute control,— that is, restored to her through law the precise rights with which it is asserted law ought not to invest her. If it is wrong or inexpedient that law should leave a married woman control of her own property, why is it right that the Vice-Chan- cellor, in defiance of the general sentiment of the law, should insist that she should have it ? Women waste money ? Well, the Vice-Chancellor gives it to them to waste. They ought to be submissive to their husbands? Well, he says that as far as money is concerned they ought not, and delivers a thundering wigging to their male relatives for allowing them to sign deeds formulating submission. Which is right, the law which robs, or the law which restores? Suppose Mrs. George had made no settlement at all, but had married without deeds, she could not have recovered anything, —and that is considered just ; but if it is just, why is it juster that the Chancery Court should virtually annul the general law? One of the two sets of ideas must, at all events, be bad. Everybody, of course, feels that the Vice-Chancellor, whether his decision is upset or not—always an uncertainty at this Court—is morally quite right, yet almost everybody adds that the injustice which he, exceptionally, seeks to remedy, ought, as a regular
thing, to be enforced by statute. The plain truth is that the law and human conscience are, on this matter, in flat antagonism, and that there is not a single argument for depriving married women of their right to their own, which is not really an argument for placing all women in a state of tutelage. If the Mrs. Clarks ought to be treated like children or lunatics, why allow settlements giving them independence? and if there ought to be settlements, why not make settlements universal, by leaving
them under the same law as men ? We quite understand the assertion that there ought to be but one purse in the household, but then that is the very argument which the Chancery Court declares to be wrong, and heavily fines people for acting upon. Mr. Clark thought very strongly that there ought to be but one purse in his house, and for so thinking he is heavily fined in costs, and loses the property which, had he only refused to consent to any deeds at all, would have been left for his wife's life absolutely in his hands.
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