XI.

tried to bring, the course of reform, commenced in Lecture 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') 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, 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 con

1 See generally 45 & 46 Vict. c. 75, s. 1, and note sub-ss. (3), (4). 2 Ibid. s. 19.

Lecture tractual capacity; a contract made by her after 1882 XL. still binds not herself but her separate property.'

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. 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. 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. The Married Women's Property Act, 1893,5 has removed some of the anomalies arising from defects in the

4

1 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.

Nor indeed was any

2 Palliser v. Gurney (1887), 19 Q.B.D. 519. property which might afterwards come to her as a widow, and was therefore not "separate property" at all.

3 Barnett v. Howard [1900], 2 Q.B. (C.A.) 784.

4 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.), p. 139.

5 56 & 57 Vict. c. 63.

XI.

Married Women's Property Act, 1882, and the policy Lecture 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.1

The rules of equity, however, have done much more than delay for a certain period the complete

1 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 [1900], 2 Q.B. (C.A.), 784; Brown v. Dimbleby [1904], 1 K.B. (C.A.), 28; Birmingham Excelsior Society v. Lane [1904], 1 K.B. (C.A.), 35; Lush, Husband and Wife (2nd ed.), p. 314. But some lawyers of eminence find the decisions of the Court of Appeal difficult to reconcile with Hood Barrs v. Heriot [1896], A. C., 174; Whiteley v. Edwards [1896], 2 Q.B. (C.A.), 48. See Pollock, Principles of Contract (7th ed.), p. 86.

XI.

Lecture 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, ie. 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.' Under Scottish law a wife cannot part with her property without her husband's consent. 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

1 Code Civil, art. 1421.

2

2 Bell, Principles of the Law of Scotland (10th ed.), s. 1560 D. But a wife can dispose of accrued income of her estate.

XI.

of wealth ought to hold and dispose of her property Lecture 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,' 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

Pollock and Maitland, History of English Law, i. p. 203.