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II.: The Effect of Judge-made Law on Parliamentary Legislation - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) 
Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).
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The Effect of Judge-made Law on Parliamentary Legislation
This topic is well illustrated by considering, though in the merest outline, the history, during the nineteenth century, of the law as to the property of married women.
In 1800, and indeed up to 1870, the property rights of a married woman were mainly determined by rules contained in two bodies of judge-made law, namely, the Common Law, and Equity.
As to the Common Law. A married woman’s position in regard to her property was the natural result, worked out by successive generations of lawyers with logical thoroughness, of the principle that, in the words of Blackstone, “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”13
If, for the sake of clearness, we omit all limitations and exceptions, many of which are for the purpose of these Lectures unimportant, the result at common law of this merger of a wife’s legal status in that of her husband may be thus broadly stated. Marriage was an assignment of a wife’s property rights to her husband at any rate during coverture. Much of her property, whether possessed by her at or coming to her after her marriage, either became absolutely his own, or during coverture might, if he chose, be made absolutely his own, so that even if his wife survived him it went to his representatives.
This statement is, from a technical point of view, as every lawyer will perceive, lacking in precision, or even in strict accuracy, but it conveys to a student, more clearly than can otherwise be expressed in a few words, the real effect between 1800 and 1870 of the common law14 (in so far as it was not controlled by the rules of equity) on the position of a married woman in regard to her property. The statement lacks precision, because at common law the effect of marriage on a woman’s property varied with the nature of the property;15 the interest which a husband acquired in his wife’s freeholds differed from the interest which he acquired in her leaseholds; of the goods and chattels again which were at the time of marriage in, or after marriage came into, the possession of his wife, he acquired an interest different from his rights over her choses in action, such as debts due to her, e.g. on a bond, or as money deposited at her bankers. The statement, however, is substantially true, because a husband on marriage became for most purposes the almost absolute master of his wife’s property. The whole of her income, from whatever source it came (even if it were the earnings of her own work or professional skill), belonged to her husband. Then, too, a married woman, because her personality was merged in that of her husband, had no contractual capacity, i.e. she could not bind herself by a contract. Her testamentary capacity was extremely limited; she could not make a devise of her freehold property, and such testamentary power as she possessed with regard to personal property could be exercised only with the consent of her husband, and this consent, when given, might be at any time revoked. If she died intestate the whole of her personal estate either remained her husband’s or became his on her death. The way in which the rules of the common law might, occasionally at any rate, deprive a rich woman of the whole of her wealth may be seen by the following illustration. A lady is possessed of a large fortune; it consists of household furniture, pictures, a large sum in money and bank notes, as well as £10,000 deposited at her bankers, of leasehold estates in London, and of freehold estates in the country. She is induced, in 1850, to marry, without having made any settlement whatever, an adventurer, such as the Barry Lyndon of fiction, or the Mr. Bowes of historical reality, who supplied, it is said, the original for Thackeray’s picture of Barry Lyndon’s married life. He at once becomes the actual owner of all the goods and money in the possession of his wife. He can, by taking the proper steps, with or without her consent, obtain possession for his own use of the money at her bankers, and exact payment to himself of every debt due to her. He can sell her leaseholds and put the proceeds in his own pocket. Her freehold estate, indeed, he cannot sell out and out, but he can charge it to the extent of his own interest therein at any rate during coverture, and if under the curtesy of England he acquires a life interest in the freehold estate after the death of his wife, he can charge the estate for the term of his natural life. In any case he can spend as he pleases the whole of his wife’s income. He turns out a confirmed gambler. In the course of a few years he has got rid of the whole of his wife’s property, except the freehold estate, but though it has not been sold, he has charged it with the payment of all his debts up to the very utmost of his power. If he outlives his wife she will never receive a penny of rent from the estate. He and his wife are in truth penniless; she earns, however, £1000 a year as a musician or an actress. This is a piece of rare good luck—for her husband. He is master of the money she earns. Let him allow her enough, say £200 a year, to induce her to exert her talents, and he may live in idleness and modest comfort on the remaining £800. Under this state of things, which up to 1870 was possible, though, of course, not common, it is surely substantially true to say that marriage transferred the property of a wife to her husband. Blackstone, indeed, though he knew the common law well enough, tells us that, “even the disabilities which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.”16 But this splendid optimism of 1765 is too much for even the complacent toryism of 1809, and at that date, Christian, an editor of Blackstone’s Commentaries, feels bound to deny that the law of England has shown any special partiality to women, and protests that he is not so much in love with his subject “as to be inclined to leave it in possession of a glory which it may not justly deserve.”17
As to Equity.18 In 1800 the Court of Chancery had been engaged for centuries in the endeavour to make it possible for a married woman to hold property independently of her husband, and to exert over this property the rights which could be exercised by a man or an unmarried woman. Let it, however, be noted, that the aim of the Court of Chancery had throughout been not so much to increase the property rights of married women generally, as to enable a person (e.g. a father) who gave to, or settled property on a woman, to ensure that she, even though married, should possess it as her own, and be able to deal with it separately from, and independently of, her husband, who, be it added, was, in the view of equity lawyers, the “enemy” against whose exorbitant common-law rights the Court of Chancery waged constant war. By the early part of the nineteenth century, and certainly before any of the Married Women’s Property Acts, 1870–1893, came into operation, the Court of Chancery had completely achieved its object. A long course of judicial legislation had at last given to a woman, over property settled for her separate use, nearly all the rights, and a good deal more than the protection, possessed in respect of any property by a man or a feme sole. This success was achieved, after the manner of the best judge-made law, by the systematic and ingenious development of one simple principle—namely, the principle that, even though a person might not be able to hold property of his own, it might be held for his benefit by a trustee whose sole duty it was to carry out the terms of the trust. Hence, as regards the property of married women, the following results, which were attained only by degrees.
Property given to a trustee for the separate use of a woman, whether before or after marriage, is her separate property—that is, it is property which does not in any way belong to the husband. At common law indeed it is the property of the trustee, but it is property which he is bound in equity to deal with according to the terms of the trust, and therefore in accordance with the wishes or directions of the woman. Here we have constituted the “separate property” or the “separate estate” of a married woman.
If, as might happen, property was given to or settled upon a woman for her separate use, but no trustee were appointed, then the Court of Chancery further established that the husband himself, just because he was at common law the legal owner of the property, must hold it as trustee for his wife. It was still her separate property, and he was bound to deal with it in accordance with the terms of the trust, i.e. as property settled19 upon or given to her for her separate use.20 The Court of Chancery having thus created separate property for a married woman, by degrees worked out to its full result the idea that a trustee must deal with the property of a married woman in accordance with her directions. Thus the Court gave her the power to give away or sell her separate property, as also to leave it to whomsoever she wished by will, and further enabled her to charge it with her contracts. With regard to such property, in short, equity at last gave her, though in a round-about way, nearly all the rights of a single woman. But equity lawyers came to perceive, somewhere towards the beginning of the nineteenth century, that though they had achieved all this, they had not given quite sufficient protection to the settled property of a married woman. Her very possession of the power to deal freely with her separate property might thwart the object for which that separate property had been created; for it might enable a husband to get her property into his hands. Who could guarantee that Barry Lyndon might not persuade or compel his wife to make her separate property chargeable for his debts, or to sell it and give him the proceeds? This one weak point in the defences which equity had thrown up against the attacks of the enemy was rendered unassailable by the astuteness, as it is said, of Lord Thurlow. He invented the provision, constantly since his time introduced into marriage settlements or wills, which is known as the restraint on anticipation. This clause, if it forms part of the document settling property upon a woman for her separate use, makes it impossible for her during coverture either to alienate the property or to charge it with her debts. Whilst she is married she cannot, in short, in any way anticipate her income, though in every other respect she may deal with the property as her own. She may, for example, bequeath or devise her property by will, since the bequest or devise will have no operation till marriage has come to an end. But this restraint, or fetter, operates only during coverture. It in no way touches the property rights either of a spinster or of a widow. The final result, then, of the judicial legislation carried through by the Court of Chancery was this. A married woman could possess separate property over which her husband had no control whatever. She could, if it was not subject to a restraint on anticipation, dispose of it with perfect freedom. If it was subject to such restraint, she was during coverture unable to exercise the full rights of an owner, but in compensation she was absolutely guarded against the possible exactions or persuasions of her husband, and received a kind of protection which the law of England does not provide for any other person except a married woman.
It is often said, even by eminent lawyers, that a married woman was in respect of her separate property made in equity a feme sole.21 But this statement, though broadly speaking true, is not accurate, and conceals from view the fact (which is of importance to a student who wishes to understand the way in which equity has told upon the form and substance of the Married Women’s Property Acts, 1870–1893) that the process of judicial legislation which gave to a married woman a separate estate, led to some very singular results. Three examples will make plain my meaning.
First. The restraint on anticipation which to-day, no less than before 1870, is constantly to be found in marriage settlements, has (as already pointed out) given to a married woman a strictly anomalous kind of protection.
Secondly. Equity, whilst conferring upon a married woman the power to dispose of her separate property by will, gave her no testamentary capacity with respect to any property which was not in technical strictness separate property. Take the following case: W was possessed of separate property. By her will made in 1850, she left, without her husband’s knowledge, the whole of her property of every description to T. In 1855 H, her husband, died and bequeathed £10,000 to W. W died in 1869, leaving her will unchanged. The property which had been her separate property in 1850 passed to T,22 but the £10,000 did not pass to T.23 It would not pass at common law—it would not pass according to the rules of equity—for the simple reason that as it came to W after her husband’s death, it never was her separate property.
Thirdly. Equity never in strictness gave a married woman contractual capacity; it never gave her power to make during coverture a contract which bound herself personally. What it did do was this: it gave her power to make a contract, e.g. incur a debt, on the credit of separate property which belonged to her at the time when the debt was incurred, and it rendered such separate property liable to satisfy the debt. Hence two curious consequences. The contract of a married woman, in the first place, even though intended to bind24 her separate property, did not in equity bind any property of which she was not possessed at the moment when she made the contract, e.g. incurred a debt.25 The contract of a married woman, in the second place, if made when she possessed no separate property, in no way bound any separate property, or indeed any property whatever of which she might subsequently become possessed.26W, a married woman, on the 1st January 1860, borrows £1000 from A on the credit of her separate property, which is worth £500. A week afterwards W acquires, under her father’s will, separate property amounting to £10,000. The £500 she has meanwhile spent, the £10,000 is not chargeable with her debt to A. Let us suppose a case of exactly the same circumstances except that when W borrows the £1000 from A she is not possessed of any separate property whatever, but tells A that she expects that her father will leave her a legacy and that she will pay for the loan out of it. She does, as in the former case, acquire a week after the loan is made £10,000 under her father’s will, and acquires it as separate property. It is not in equity chargeable with the debt to A.27
In spite, however, of these anomalies, there would have been little to complain of in the law, with regard to the property of married women, if the Court of Chancery had been able to supersede the common28 law and to extend to all women on their marriage the protection which the rules of equity provided for any woman whose property was the subject of a marriage settlement. But the way in which equity was developed as a body of rules, which in theory followed and supplemented the common law, made such a thorough-going reform, as would have been involved in the superseding of the common law, an impossibility. As regards a married woman’s property the two systems of common law and of equity coexisted side by side unconfused and unmingled till the reform introduced by the Married Women’s Property Acts. Hence was created in practice a singular and probably unforeseen inequality between the position of the rich and the position of the poor. A woman who married with a marriage settlement—that is, speaking broadly, almost every woman who belonged to the wealthy classes—retained as her own any property which she possessed at the time of marriage, or which came to her, or was acquired by her during coverture. She was also, more generally than not, amply protected by the restraint on anticipation against both her own weakness and her husband’s extravagance or rapacity. A woman, on the other hand, who married without a marriage settlement—that is, speaking broadly, every woman belonging to the less wealthy or the poorer classes—was by her marriage deprived of the whole of her income, and in all probability of the whole of her property. The earnings acquired by her own labour were not her own, but belonged to her husband. There came, therefore, to be not in theory but in fact one law for the rich and another for the poor. The daughters of the rich enjoyed, for the most part, the considerate protection of equity, the daughters of the poor suffered under the severity and injustice of the common law.29
This condition of things could not last for ever. It was terminated by parliamentary legislation during the last third of the nineteenth century (1870–1893). The point which for our purpose deserves notice is that the rules of equity—that is, a body of judge-made law—determined to a great extent the date, the method, and the nature of the reform carried through by Parliament.
Not till 1870 did Parliament make any systematic attempt to place the law governing the property of married women on a just foundation. What was it which delayed till well-nigh the end of the Benthamite era a reform which must, one would have thought, have approved itself to every Liberal? The answer is to be found in the existence under the rules of equity of a married woman’s separate property. The barbarism of the common law did not, as a rule, press heavily either upon the rich who derived political power from their wealth and position, or upon the labouring poor who had at last obtained much of the political power due to numbers. The daughters of the wealthy were, when married, protected under the rules of equity in the enjoyment of their separate property. The daughters of working men possessed little property of their own. The one class was protected, the other would, it seemed, gain little from protection. A rich woman indeed here or there who married without having the prudence to obtain the protection of a marriage settlement, or a woman of the poorer classes who was capable of earning a good income by the use of her talents, might suffer grievous wrong from the right of her husband to lay hands upon her property or her earnings, but, after all, the class which suffered from the severity of the common law was small, and injustice, however grievous, which touches only a small class commands in general but little attention. Changes in the law, moreover, which affect family life always offend the natural conservatism of ordinary citizens. It is easy, then, to see that the rules of equity by mitigating the harshness of the common law did for a certain time postpone a necessary reform. It is harder to understand why an amendment of the law which had been deferred so long should, in 1870, have become more or less of a necessity. To answer this inquiry we must look to the circumstances of the time and the general current of public opinion. The Parliament of 1870 had been elected under the then recent Reform Acts. It was inspired by the hopes and endowed with the vigour which have generally been the immediate, though by no means always the permanent, result of an advance towards democracy. The power at common law of a husband to appropriate his wife’s property and earnings was in reality indefensible. But though the theoretical injustice of the law was no greater, the wrong actually wrought thereby was far more extensive, and far more visible to the public in 1870 than in 1832. In 1870 the women, even among the wage-earners, who could earn good wages by their own labour, must have been far more numerous than they were forty years earlier. What is certain is that the number of women belonging to the middle class, who could as teachers, musicians, actresses, or authoresses, gain large emoluments by their professional skill had, since the beginning of the nineteenth century, greatly increased, and that this body of accomplished women had obtained the means of making known to the public through the press every case of injustice done to any one of them. How great was the effect of their complaints is proved by the fact that the earliest Married Women’s Property Act aims at little else than securing to a married woman the possession of her own earnings and savings. Much must also be attributed to the influence of one man. John Mill was between 1860 and 1870 at the height of his power. His authority among the educated youth of England was greater than may appear credible to the present generation. His work On Liberty was to the younger body of Liberal statesmen a political manual. To no cause was he more ardently devoted than to the emancipation of women. He wished to give them the full privileges of citizenship, and of course favoured the abolition of any law which interfered with their property rights. At the same time many Conservatives who could not support the admission of women to all the political rights of men, desired to give every woman the control over her own property. The Divorce Act, lastly, of 1857 had given to a wife deserted by her husband,30 and also to a wife judicially separated from her husband, nearly the property rights of a feme sole,31 and had set a precedent which told strongly on legislative opinion.
When at last reform became a necessity, the method thereof was determined almost wholly by the existence of the rules of equity.
In 1870 two different methods of removing the injustice suffered by married women were open to reformers. The one and apparently the simpler mode of proceeding was to enact in one form or another that a married woman should, as regards her property and rights or liabilities connected with property, stand on the same footing as an unmarried woman.32 This course of proceeding lay ready to hand and was in appearance at any rate easy. It had, as we have seen, been followed in the Divorce Act of 1857. But the direct and simple plan of giving to a married woman the same property rights as those of a feme sole was not adopted by the authors of the Married Women’s Property Acts. The other, but the less obvious method was to make the property of a married woman, or some part thereof, during coverture, her “separate property” in the technical sense which that term had acquired in the Courts of Equity, and thus to secure for all married women, as to some part at any rate of their property, the rights which the Court of Chancery had secured for those women who enjoyed the advantage of a marriage settlement.33 This was the policy actually pursued by Parliament and embodied in the Married Women’s Property Acts, 1870–1893. The adoption of this method excites surprise. It was open to obvious objections. It made it necessary to pass statutes of a complicated and artificial character. It precluded the possibility of defining the position of a married woman in regard to her property in language which could be easily understood by laymen. The Married Women’s Property Acts have, as a matter of fact, perplexed not only lawyers, but even judges, who, while accustomed to the rules of the common law, were unfamiliar with the principles of equity, and have raised a whole host of nice and thorny questions as to the precise rights and liabilities of married women. And these objections to the method of reform adopted by the Legislature must have been obvious to many reformers, though they may not have been understood by most of the members of Parliament who in 1870 voted for the first Married Women’s Property Act.
Still the course of legislation actually pursued may well have commended itself on at least two grounds to practical reformers. The one was that, while many members of Parliament dreaded a revolution in the law affecting family life, their fears were dispelled by the assertion that the proposed change did no more than give to every married woman nearly the same rights as every English gentleman had for generations past secured under a marriage settlement for his daughter on her marriage. The other was that members of Parliament belonging as they did to the wealthier classes of the community were, though ready to save hard-working women from injustice, determined not to sacrifice the defences by which the Court of Chancery had protected the fortunes of well-to-do women against the attacks of their husbands. Now to enact off-hand that a married woman should, as regards her property, stand in the position of a feme sole might shake the validity of that restraint on anticipation which most English gentlemen thought and still think necessary for the protection of a married woman against her own weakness or the moral authority of her husband; but to make every married woman’s possessions her separate property was clearly quite compatible with maintaining the useful though anomalous restraint on anticipation. Whatever in any case may have been the grounds on which Parliament acted, it is certain that the legislative policy embodied in the successive Married Women’s Property Acts is based upon the principles of equity with regard to the “separate estate” of a married woman.34
The closeness in this instance of the connection between a whole line of Acts and the rules of equity, or in other words, a body of already existing judge-made law, becomes apparent if we follow in the very most general way, without attempting to go into details, the course of parliamentary enactment from 1870–1893.
The Married Women’s Property Act, 1870, though most important as fixing the method of reform and as an acknowledgment of the right of every married woman to hold property as her separate estate, was a merely tentative enactment which went very little way towards removing the grievances of which women had a right to complain, and rested on no clear principle. It secured to a woman as her separate property the earnings during coverture of her own labour,35 and also certain investments. The Act no doubt gave her some other advantages, and especially the right to the income of real estate which might descend upon her during marriage. The utter indifference, however, of Parliament to any fixed principle of fairness may be seen in one provision of the Act,36 of which the effect was as follows: If A, a widower, having an only child who is a married woman, left her all his personal property worth £10,000 by will, the whole of it (except possibly £200 in money) went to her husband, but if A died intestate she had it all for her separate use.37 The Married Women’s Property Act, 1874,38 is simply an attempt, which did not completely attain its end, to correct an absurd blunder by which Parliament had in 1870 entirely freed a husband from liability for his wife’s ante-nuptial debts, whilst allowing him still to obtain by marriage the greater part of his wife’s property. The Married Women’s Property Act, 1882,39 brought, or tried to bring, the course of reform, commenced in 1870, to its logical and legitimate conclusion. The statute, if we omit many details, and look at it as a whole, embodies two principles. The whole property, in the first place, of a married woman, whether it is hers at marriage or comes to her after marriage, is made her separate property, and as such separate property is (except as may be otherwise provided by the Act)40 subject to the incidents which the Court of Chancery had already attached to the separate property of a married woman; the Act, as it were, provides every woman on her marriage with a settlement. Marriage settlements, in the second place, are left untouched by the Act,41 and the protection which a married woman may derive from the restraint on anticipation if imposed upon her property by, e.g. a marriage settlement, is in no way diminished. Assuming that the method of reform adopted by Parliament from 1870 onwards was the right one, there is little to be said either against the Act of 1882, at any rate as regards the principles on which it was founded, or against the construction put upon it by the judges who, rightly (it is submitted), treated the legal separate property created by the Act as having the character of separate property created by the rules of equity. The plan, however, of making a married woman’s property her separate property, instead of placing her in the position of a feme sole, led to curious results which may have been quite unforeseen by members of Parliament. A married woman, for instance, did not under the Act acquire true contractual capacity; a contract made by her after 1882 still binds not herself but her separate property.42 Hence, when a married woman at the time of entering into a contract, e.g. incurring a debt, was possessed of no separate property, any separate property which she might afterwards acquire was not, until after the passing of the Married Women’s Property Act, 1893, liable to satisfy the debt.43 The effect of the restraint on anticipation remained in full force. Contractual liabilities incurred by a married woman could not under the Act of 1882, and cannot now, be satisfied out of property subject to such restraint, even after the restraint had ceased to operate, e.g. by the death of her husband.44 A married woman did not, moreover, under the Act of 1882 acquire full testamentary capacity. A will made by her during coverture, though purporting to deal with the whole of her property, did not at her death, if occurring after the death of her husband, pass property, e.g. left to her by his will, which had never been her “separate property” in the technical sense of the term.45 The Married Women’s Property Act, 1893,46 has removed some of the anomalies arising from defects in the Married Women’s Property Act, 1882, and the policy of the Act of 1882 has received pretty nearly its full development. All the property of a married woman is her separate property; she may, except in so far as her power is limited by the restraint on anticipation, deal with it as she pleases. She has (subject always to this possible restraint) full contractual and full testamentary capacity. Marriage settlements, however, and above all the restraint on anticipation, remain untouched by the Married Women’s Property Acts. The policy of Parliament has by means of hesitating and awkward legislation been at last carried out. But this parliamentary policy is in reality little else than the extension to the property of women who marry without a marriage settlement, of the rules established in equity with regard to the rights of a married woman over property settled upon her or given to her for her separate use.47
The rules of equity, however, have done much more than delay for a certain period the complete reform of the law governing the property of married women, or than fix the method in accordance with which that reform should be carried out. They have told upon the whole public opinion of England as to the property rights which a married woman ought to possess. We shall see that this is so if we search for the answer to an inquiry which must surely perplex anyone who turns his thoughts towards the modern development of the law of England. How are we to account for the fact that whilst till the end of 1869 a married woman possessed at common law hardly any property rights whatever—and many were the women who fell under the operation of the common law—yet the Parliament of England within thirteen years from that date, i.e. in 1882, gave to every married woman more complete and independent control of her property than is possessed by the married women of France or of Scotland? Under French law husband and wife are in general, as regards their common property, members of a sort of partnership, but the husband is the predominant partner and has complete control of the partnership, capital, and revenues.48 Under Scottish law a wife cannot part with her property without her husband’s consent.49 In England a wife’s property has been, since 1882, truly her own; her husband cannot touch it. If she wishes to sell it or give it away, she need not ask for his consent. The answer to our inquiry is to be found in the rules of equity. Long before 1870 Chancery had habituated English gentlemen to the idea that a married woman of wealth ought to hold and dispose of her property at her own will, and with absolute freedom from the control of her husband. The change introduced by the Married Women’s Property Acts, 1870–1893, was no sudden revolution: it was the tardy recognition of the justice of arrangements which, as regards the gentry of England, had existed for generations. The reform effected by the Married Women’s Property Acts is simply one more application of the principle insisted upon by the historians of English law,50 that in England the law for the great men has a tendency to become the law for all men. The rules of equity, framed for the daughters of the rich, have at last been extended to the daughters of the poor.
What are the respective merits and defects of judicial and of parliamentary legislation?
This is an inquiry naturally raised, and to a considerable extent answered, by the history of the law as to the property of married women.
Judicial legislation, extending over more than two centuries, worked out an extraordinary and within certain limits a most effective reform which was logical, systematic, and effectual, just because it was the application to actual and varying circumstances of a clear and simple principle. But judicial legislation here, as elsewhere, exhibited its inherent defects. The progress, in the first place, of reform was slow; the nineteenth century had already opened before the restraint on anticipation, which at last gave effectual protection to the property of a married woman, became a firmly established part of the law of England. A time, in the second place, inevitably arrived when judicial legislation had reached its final limits, and the reform accomplished by the Court of Chancery was thus marked by incompleteness. Before 1870 judicial legislation, it was clear, could do no more than had been already achieved to secure for married women their full property rights; and this necessary arrest of judicial power was the more to be lamented, because the operation of the common law combined with the modification thereof introduced by the Court of Chancery, had in fact established one law for the daughters of the rich, and another, but far less just law, for the daughters of the poor.
Parliamentary legislation from the time when it began to operate produced its effect with great rapidity. For within twelve years (1870–1882), or at most twenty-three years (1870–1893), Parliament reformed the law as to married women’s property, and thus revolutionised an important part of the family law of England; and neither twelve nor twenty-three years can be considered as more than a moment in the history of a nation. Add too that the reform carried out by Parliament was, when once accomplished, thorough-going, and can at any moment, if it needs extension, be carried further under the authority of a sovereign legislature. The Court of Chancery, it may be said, took centuries to work out incompletely a reform which Parliament at last carried out with more or less completeness in little less than a quarter of a century; but in fairness we must remember that parliamentary reformers borrowed the ideas on which they acted from the Courts of Equity, and that during the centuries when the Court of Chancery was gradually but systematically removing for the benefit of married women the injustice of the common law, Parliament did little or nothing to save any woman from rules under which marriage might and sometimes did deprive her of the whole of her property.
The four Married Women’s Property Acts are, further, a record of the hesitation and the dulness of members of Parliament. Want of support by popular opinion probably made it necessary to proceed step by step, but it is difficult to believe that enlightened reformers who had understood the actual state of the law could not in 1870 have gone much further than they did towards establishing the principles now embodied in the Married Women’s Property Acts, 1882–1893. It is in any case certain that the necessity for the Married Women’s Property Act, 1874, was caused by a gross blunder or oversight on the part of the Legislature, and that the Married Women’s Property Act, 1893, proves that Parliament, whilst wishing in 1882 to put the law on a sound basis, had not understood how to attain its object. The plain truth is that Parliament tried, whether wisely or not, to reform the law in accordance with ideas borrowed from equity, and some even of the lawyers by whom Parliament was guided did not fully understand the principles of equity which they meant to follow. Hence recurring blunders which one may hope, though without any great confidence, have been at last corrected. Parliamentary legislation, in short, if it is sometimes rapid and thorough-going, exhibits in this instance, as in others, characteristic faults. It is the work of legislators who are much influenced by the immediate opinion of the moment, who make laws with little regard either to general principles or to logical consistency, and who are deficient in the skill and knowledge of experts.
For our own purpose, however, the most important matter to note is after all neither the merits nor the defects of the Married Women’s Property Acts, but the evidence which they give of the way in which judicial may tell upon parliamentary legislation. Nor ought the care devoted to the examination of the connection between judge-made law and Acts of Parliament in the case of the Married Women’s Property Acts to lead any student to suppose that the same connection is not traceable in many other departments of law. It may be illustrated by the laws governing the right of association,51 by the law with reference to an employer’s liability for damage done by the negligence of his servants,52 or by provisions of the Judicature Acts which substitute rules of equity for the rules of common law. In studying the development of the law we must allow at every turn for the effect exercised by the cross-current of judicial opinion which may sometimes stimulate, which may often retard, and which constantly moulds or affects, the action of that general legislative opinion which tells immediately on the course of parliamentary legislation.
Relation between Legislative Opinion and General Public Opinion
law-making opinion is merely one part of the whole body of ideas and beliefs which prevail at a given time. We therefore naturally expect, first, that alterations in the opinion which governs the province of legislation will reappear in other spheres of thought and action and be traceable in the lives of individuals, and, next, that the changes of legislative opinion will turn out to be the result of the general tendencies of English or indeed of European thought during a particular age. This lecture is an attempt to show that these anticipations hold good in a very special manner of that transition from individualistic liberalism to unsystematic collectivism or socialism, which has characterised the development of English law during the later part of the nineteenth century.
[13. ]Comm. i. p. 441.
[14. ]Affected occasionally by an old statute, such as the Wills Act, 1542 (34 & 35 Hen. VIII. c. 5), s. 14.
[15. ]Outline of effect of marriage at common law as assignment of wife’s (W’s) property to husband (H).
[16. ]Blackstone, Comm. i. p. 445.
[17. ]See Christian’s edition of Blackstone’s Commentaries, i. p. 445, note 23.
[18. ]Stephen, Comm. ii. 319–321; Ashburner, Principles of Equity, 231–244; Lush, Law of Husband and Wife, ch. v.
[19. ]It will be convenient in the rest of this Lecture to treat the separate property of a married woman, whenever the contrary is not stated, as coming to her under a marriage settlement, but of course it might come to her in other ways. It might be bestowed upon her as a gift or left to her by will for her separate use.
[20. ]So completely was a wife’s separate property her own that even after it was paid over to her, say, by a trustee under her marriage settlement, it was still in equity, during her life, her property, and not that of her husband. See Herbert v. Herbert (1692), 1 Eq. Ca. Ab. 661; Bird v. Pegrum (1853), 13 C.B. 639; Duncan v. Cashin (1875), L.R. 10 C.P. 554; Butler v. Cumpston (1868), L.R. 7 Eq. 16, 24.
[21. ]“When the Courts of equity established the doctrine of the separate use of a married woman, and applied it to both real and personal estate, it became necessary to give the married woman, with respect to such separate property, an independent personal status, and to make her in equity a feme sole. It is of the essence of the separate use, that the married woman shall be independent of, and free from the control and interference of her husband. With respect to separate property, the feme covert is, by the form of trust, released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui juris. To every estate and interest held by a person who is sui juris, the common law attaches a right of alienation, and accordingly the right of a feme covert to dispose of her separate estate was recognised and admitted from the beginning, until Lord Thurlow devised the clause against anticipation (Parkes v. White, 11 Ves. 209, 221). But it would be contrary to the whole principle of the doctrine of separate use, to require the consent or concurrence of the husband in the act or instrument by which the wife’s separate estate is dealt with or disposed of. That would be to make her subject to his control and interference. The whole matter lies between a married woman and her trustees; and the true theory of her alienation is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the estate according to the new trust which is created by such direction. This is sufficient to convey the feme covert’s equitable interest. When the trust thus created is clothed by the trustees with the legal estate, the alienation is complete both at law and in equity.”—Taylor v. Meads (1865), 34 L.J. Ch. 203, 207, per Westbury, L.C.
[22. ]Taylor v. Meads (1865), 34 L.J. Ch. 203.
[23. ]Willock v. Noble (1875), L.R., 7 H.L. 580.
[24. ]The contract of a married woman is said, even in Acts of Parliament, to “bind” her separate estate, but it did not in equity, nor does it now under the Married Women’s Property Acts, bind her separate property in the sense of being a charge on such property. As far as the separate property of a married woman was, or is bound for the payment, e.g. of her debts, it was or is liable to satisfy them in the sense in which the whole property of a man is liable to satisfy his debts.
[25. ]Pike v. Fitzgibbon (1881), 17 Ch.D. (C.A.) 454.
[26. ]Palliser v. Gurney (1887), 19 Q.B.D. 519. Both these results seem to follow logically from the view that when a woman’s engagement bound her separate estate, she did nothing more than agree to direct her trustee to pay what was due under the contract out of her separate estate.
[27. ]In neither case, of course, will the property be chargeable at common law, since W at common law would be, as a married woman, incapable of binding herself by a contract. See In re Shakespear (1885), 30 Ch.D. 169.
[28. ]This might conceivably have been achieved if the Court of Chancery could have established the principle that on any marriage taking place there was presumably a contract between the intended husband and wife—that the wife’s present and future property should be her separate property, held for her separate use by her husband as trustee.
[29. ]This state of things recalls the injustice which up to 1857 marked the law of divorce. The rights of the rich and of the poor were theoretically equal, but in practice divorce was obtainable by a rich man or rich woman when it was not obtainable by any poor man or poor woman. See p. 246, ante.
[30. ]“If any . . . order of protection be made, the wife shall, during the continuance thereof, be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation.”—Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), s. 21.
[31. ]“In every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding.”—Ibid. s. 26.
[32. ]Compare the Indian Succession Act, s. 4. “No person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried.”—See Ilbert, Legislative Methods, p. 152.
[33. ]But of a settlement which did not contain a restraint on anticipation. See p. 269, ante.
[34. ]“It was this equitable principle of the wife’s separate estate which formed the model of the legal separate estate created by the Married Women’s Property Acts, 1870 and 1882.”—Stephen, Comm. ii. (14th ed.), p. 319.
[35. ]33 & 34 Vict. c. 93, s. 1.
[36. ]33 & 34 Vict. c. 93, s. 7.
[37. ]In re Voss (1880), 13 Ch.D. 504.
[38. ]37 & 38 Vict. c. 50.
[39. ]45 & 46 Vict. c. 75.
[40. ]See generally 45 & 46 Vict. c. 75, s. 1, and note sub-ss. (3), (4).
[41. ]Ibid. s. 19.
[42. ]She does not incur a personal liability. Hence there is no power under the Debtors Act, 1869, to commit a married woman for default in paying a sum of money for which judgment has been recovered against her under the Married Women’s Property Act, 1882.—Draycott v. Harrison (1886), 17 Q.B.D. 147.
[43. ]Palliser v. Gurney (1887), 19 Q.B.D. 519. Nor indeed was any property which might afterwards come to her as a widow, and was therefore not “separate property” at all.
[44. ]Barnett v. Howard , 2 Q.B. (C.A.) 784.
[45. ]Compare Willock v. Noble (1875), L.R. 7 H.L. 580; In re Price (1885), 28 Ch.D. 709; In re Cuno (1889), 43 Ch.D. (C.A.), 12; and Lush, Law of Husband and Wife (2nd ed.), pp. 138–140.
[46. ]56 & 57 Vict. c. 63.
[47. ]The Married Women’s Property Acts, 1882–1893 (the Acts of 1870 and 1874 are repealed), are so drawn as still to leave some important points unsettled. What, for example, is the effect of the proviso contained in the Married Women’s Property Act, 1893, s. 1? Does it exempt the separate property of a married woman subject to restraint on anticipation, from liability to satisfy a contract made by her during coverture, even though such restraint has by the death of her husband ceased to operate? The Court of Appeal has answered this inquiry in the affirmative—Barnett v. Howard , 2 Q.B. (C.A.), 784; Brown v. Dimbleby , 1 K.B. (C.A.), 28; Birmingham Excelsior Society v. Lane , 1 K.B. (C.A.), 35; Lush, Husband and Wife (2nd ed.), pp. 314, 315. But some lawyers of eminence find the decisions of the Court of Appeal difficult to reconcile with Hood Barrs v. Heriot , A. C., 174; Whiteley v. Edwards , 2 Q.B. (C.A.), 48. See Pollock, Principles of Contract (8th ed.), pp. 90–95.
[48. ]Code Civil, art. 1421.
[49. ]Bell, Principles of the Law of Scotland (10th ed.), s. 1560 D. But a wife can dispose of accrued income of her estate.
[50. ]Pollock and Maitland, History of English Law, i. p. 203.
[51. ]See pp. 68–74, 136–143, 189–193, ante.
[52. ]See pp. 198–201, ante.