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Jean-Yves Gilg

Editor, Solicitors Journal

From the archive: April 17, 1869

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From the archive: April 17, 1869

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Since our last publication the Married Women's Property Bill (a copy of which will be found in our last week's issue) has passed its second reading without a division, and has been referred to a Select Committee.

If our readers will refer to our remarks made on this subject when the matter was before the public last year, they will readily perceive that this is precisely the issue which we desired, and if they take the opportunity of referring, at the same time, to the debate of last Wednesday, they will find in the views expressed by the speakers on all sides a singular concurrence with the principle of our argument - viz. that what is desired is protection for the earnings of married women who are working for themselves or their families, and that the only real question is whether that can be efficiently done by so simple a process as that proposed by this bill. We are still of opinion that it cannot, and that, desirable as it is that something should be done, and without unnecessary delay, the passage of this bill in its present form would introduce evils certainly not less formidable than those which it is designed to remove. Indeed, this was almost explicitly admitted by the Solicitor-General, and not in fact denied by the Recorder, whose advocacy of the measure, of which he has at present charge, was carefully confined to the principle involved, and who seemed almost to parade as one of the recommendations of his proposal his willingness to submit the bill to the disintegrating process of a Select Committee.

Examining the bill by the principles above enunciated it will be at once apparent that it goes too far and not far enough: too far, because it does not limit its action to "earnings" and cases of married women living apart from their husbands; and not far enough, because it provides no machinery for determining, as between a woman and her husband's creditors, the question what portion of a common fund not in any manner earmarked is to be sacred from the payment of his just debts. The bill would legalise in every case such gross frauds as that which Mr. Jessel narrated to have occurred within his practice, and by the "private room" proviso of the 8th clause would seem even to go out of its way to prevent the truth from being discovered by the present or possible creditors of the husband. Some of the opponents of the measure seemed to think it would be a hardship upon the husband; we confess we do not think so; on the contrary, it appears to us that the operation of the 4th, 5th, and 9th clauses will be to enable every married couple in the kingdom, who may be so minded, to set their creditors most completely at defiance. If a creditor should recover against the husband he will be unable (now that process of ca. sa. is to be abolished) to obtain any fruit of his judgment, for he will hardly venture to seize on any of the property ostensibly in his possession with the prospect of such a bill as that described by Mr. Jessel looming in the "near future"; while, on the other hand, any attempt to sue the wife will be promptly met by non assumpsit, and proof that she was merely his agent in any orders she may have given; while any argument derived from the expenditure of money by him will be answered by showing that she had permitted him to receive and spend her income, so long as he did not "fritter any of it away in the payment of debts."

The 6th clause of the bill also appears to us quite uncalled for and out of place. It may or may not be desirable to abolish a husband's right to be sole beneficiary as well as administrator in case of his wife's intestacy, but it is a question quite foreign to the scope of this bill, which, so far as the married woman is concerned, gives her all she can require or desire in removing all obstacles to her power of testamentary disposition. The law of succession to the personal estates of intestates is a distinct subject by itself, which is no more germane to the matter in hand than the abolition of the distinction (ridiculous enough, in all conscience) between the incidents of a freehold estate and those of a term of 50,000 years.

The provisions of clause 11, also, for amending the Infant's Marriage Act, though not so clearly out of place as the former seem to refer rather to the disability of infancy than that of coverture, and would, we think, be better placed in a statute for amending the law relating to infants.

These may seem small objections, but in the prospect of the coming digest of law it is important that nothing be done unnecessarily to complicate or confuse the arrangement of subjects; and none but those who have tried it can tell how enormous are the difficulties, in even so comparatively small a matter as the consolidation of statutes, which are created by a vicious collocation of enactments. We trust that the select committee before whom this bill will come will not feel any delicacy or timidity in altering and amending, and that we may see before the end of the present session a complete measure, protecting efficiently at once the property and earnings of married women whose husbands are not supporting them, and the just claims of creditors who have supplied to the united family goods or services needed for their common comfort, convenience, or support. The present bill does neither.

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