MARRIAGE, AS IT WAS, AS IT IS, AND AS IT SHOULD BE
A PLEA FOR REFORM
By Annie Besant
Second Edition
London: Freethought Publishing Company
1882.
MARRIAGE: AS IT WAS, AS IT IS, AND AS IT SHOULD BE.
"_Either all human beings have equal rights, or none have any_."
--Condorcet.
I. MARRIAGE
|The recognition of human rights may be said to be of modern growth, and
even yet they are but very imperfectly understood. Liberty used to
be regarded as a privilege bestowed, instead of as an inherent right;
rights of classes have often been claimed: right to rule, right to tax,
right to punish, all these have been argued for and maintained by force;
but these are not rights, they are only wrongs veiled as legal rights.
Jean Jacques Rousseau struck a new note when he cried: "Men are
born free;" free by birthright was a new thought, when declared as a
universal inheritance, and this "gospel of Jean Jacques Rousseau"
dawned on the world as the sun-rising of a glorious day--a day of human
liberty, unrestrained by class. In 1789 the doctrine of the "Rights of
Man" received its first European sanction by law; in the August of that
year the National Assembly of France proclaimed: "Men are born, and
remain, free and equal in rights.... The aim of political association is
the conservation of the natural and imprescriptible rights of man;
these rights are--liberty, property, safety, and resistance of tyranny."
During savage and semi-civilised ages these "imprescriptible rights"
are never dreamed of as existing; brute force is king; might is the only
right, and the strong arm is the only argument whose logic meets with
general recognition. In warlike tribes fair equality is found, and the
chief is only _primus inter pares_; but when the nomadic tribe settles
down into an agricultural community, when the habit of bearing arms
ceases to be universal, when wealth begins to accumulate, and the
village or town offers attractions for pillage, then strength becomes
at once a terror and a possible defence. The weak obey some powerful
neighbour partly because they cannot resist, and partly because they
desire, by their submission, to gain a strong protection against their
enemies. They submit to the exactions of one that they may be shielded
from the tyranny of many, and yield up their natural liberty to some
extent to preserve themselves from being entirely enslaved. Very slowly
do they learn that the union of many individually feeble is stronger
than a few powerful, isolated tyrants, and gradually law takes the
place of despotic will; gradually the feeling of self-respect, of
independence, of love of liberty, grows, until at last man claims
freedom as of right, and denies the authority of any to rule him without
his own consent.
Thus the Rights of Man have become an accepted doctrine, but,
unfortunately, they are only rights of _man,_ in the exclusive sense of
the word. They are sexual, and not human rights, and until they
become human rights, society will never rest on a sure, because just,
foundation. Women, as well as men, "are born and remain free and equal
in rights;" women, as well as men, have "natural and imprescriptible
rights;" for women, as well as for men, "these rights are--liberty,
property, safety, and resistance of tyranny." Of these rights only crime
should deprive them, just as by crime men also are deprived of them;
to deny these rights to women, is either to deny them to humanity _qua_
humanity, or to deny that women form a part of humanity; if women's
rights are denied, men's rights have no logical basis, no claim to
respect; then tyranny ceases to be a crime, slavery is no longer a
scandal; "either all human beings have equal rights, or none have any."
Naturally, in the savage state, women shared the fate of the physically
weak, not only because, as a rule, they are smaller-framed and less
muscular than their male comrades, but also because the bearing and
suckling of children is a drain on their physical resources from
which men are exempt. Hence she has suffered from "the right of the
strongest," even more than has man, and her exclusion from all political
life has prevented the redressal which man has wrought out for himself;
while claiming freedom for himself he has not loosened her chains, and
while striking down his own tyrants, he has maintained his personal
tyranny in the home. Nor has this generally been done by deliberate
intention: it is rather the survival of the old system, which has only
been abolished so slowly as regards men. Mrs. Mill writes: "That those
who were physically weaker should have been made legally inferior, is
quite conformable to the mode in which the world has been governed.
Until very lately, the rule of physical strength was the general law of
human affairs. Throughout history, the nations, races, classes, which
found themselves strongest, either in muscles, in riches, or in military
discipline, have conquered and held in subjection the rest. If, even
in the most improved nations, the law of the sword is at last
discountenanced as unworthy, it is only since the calumniated eighteenth
century. Wars of conquest have only ceased since democratic revolutions
began. The world is very young, and has only just begun to cast off
injustice. It is only now getting rid of negro slavery. It is only now
getting rid of monarchical despotism. It is only now getting rid of
hereditary feudal nobility. It is only now getting rid of disabilities
on the ground of religion. It is only beginning to treat any _men_ as
citizens, except the rich and a favoured portion of the middle
class. Can we wonder that it has not yet done as much for women?"
("Enfranchisement of Women," Mrs. Mill. In J. S. Mill's "Discussions
and Dissertations," Vol. II., page 421.) The difference between men and
women in all civil rights is, however, with few, although important,
exceptions, confined to married women; i.e., women in relation with men.
Unmarried women of all ages suffer under comparatively few disabilities;
it is marriage which brings with it the weight of injustice and of legal
degradation.
In savage times marriage was a matter either of force, fraud, or
purchase. Women were merchandise, by the sale of whom their male
relatives profited, or they were captives in war, the spoil of the
conqueror, or they were stolen away from the paternal home. In all
cases, however, the possession once obtained, they became the property
of the men who married them, and the husband was their "lord," their
"master." In the old Hebrew books--still accounted sacred by Jews and
Christians--the wife is regarded as the property of her husband. A man
may "sell his daughter to be a maidservant" i.e., a concubine, as is
shown by the following verse (Ex. xxi. 7), and Jacob served seven years
for each of his wives, Leah and Rachel; his other two wives were his by
gift, and were rather concubines than recognised wives, their children
counting to their mistresses. If a Hebrew conquered his enemies, and saw
"among the captives a beautiful woman, and hast a desire unto her, that
thou wouldst have her to thy wife," he might take her home, and become
her husband, "and she shall be thy wife" (Deut. xxi 10-14). After the
destruction of Benjamin, as related in Judges xx., it was arranged that
the survivors should possess themselves of women as wives by force
and fraud: "Life in wait in the vineyards, and see and behold if the
daughters of Shiloh come out to dance in dances, then come ye out of
the vineyards, and catch you every man his wife.... And the children of
Benjamin did so, and took their wives according to their number, of them
that danced, whom they caught" (Judges xxi. 20, 21, 23). The same plan
was adopted by the Romans in their earliest days, when they needed
wives. Romulus invited the people of the Sabines and the neighbouring
towns to see some public games, and in the midst of the show the Romans
rushed in and carried off all the marriageable maidens they could lay
hands on (Liddell's "History of Rome," p. 20). These instances may be
objected to as legendary, but they are faithful pictures of the rough
wooing of early times. Among some barbarous nations the winning of a
bride is still harsher: the bridegroom rushes into the father's house
knocks the maiden down, picks up her senseless body, flings it over
his shoulder, and runs for his life; he is pursued by the youth of the
village, pelted with stones, sticks, &c., and has to win his wife by
sheer strength and swiftness. In some tribes this is a mere marriage
ceremony, a survival from the time when the fight was a real one, and
amongst ourselves the slipper thrown after the departing bridegroom and
bride is a direct descendant of the heavier missiles thrown with deadly
intent thousands of years ago by our remote ancestors. Amongst many
semi-barbarous nations the wives are still bought; in some parts of
Africa the wooer pays a certain number of cows for his bride; in other
places, money or goods are given in exchange. The point to be noted is
that the wife is literally taken by force, or bought; she is not free to
choose her husband; she does not give herself to him; she is a piece
of property, handed over by her original owner--her father--to her
new owner--her husband--in exchange for certain solid money or money's
worth; hence she becomes the property of the man who has paid for her.
In an admirable article in the _Westminster Review_ for April, 1876, the
following striking passage is to be found:
"As Aristotle long since remarked, among savages women and slaves hold
the same rank. Women are bought primarily as slaves, to drudge and
toil for their masters, whilst their function as wives is secondary and
subordinate. It is more right to say of polygamous people that their
slaves are also their wives, than to say that their wives are slaves.
They are purchased as slaves, they work as slaves, and they live
as slaves. 'The history of uncultivated nations,' it has been said,
'uniformly represents the women as in-a state of abject slavery, from
which they slowly emerge as civilisation advances.' In Canada a strap,
a kettle, and a faggot are placed in the new bride's cabin, to indicate
that it will be henceforth her duty to carry burdens, dress food, and
procure wood for her husband. In Circassia it is the women who till
and manure the ground, and in parts of China they follow the plough. A
Moorish wife digs and sows and reaps the corn, and an Arabian wife feeds
and cleans and saddles her master's horse. Indeed, the sole business of
Bedouin wives is to cook and work, and perform all the menial offices
connected with tent-life.... From the absolute power of a savage over
his slaves flow all those rights over a woman from which the marital
rights of our own time are the genealogical descendants.... A trace
of it [purchase] is found in the following customs of old English
law:--'The woman at the church-door was given of her father, or some
other man of the next of her kin, into the hands of her husband, and he
laid down gold and silver for her upon the book, as though he did buy
her.'" This custom is still maintained in the Church ritual; the priest
asks: "Who giveth this woman to be married to this man?" and when the
man gives the ring to the priest, he gives money with it, receiving back
the ring to give the woman, but the money remaining, a survival of the
time when wives were literally bought.
By the old Roman laws, the married woman had no personal rights; she
was but the head slave in her husband's house, absolutely subject in all
things to her lord. As the Romans became civilised, these disabilities
were gradually removed. It is important to remember these facts, as
these are the origin of our own marriage laws, and our common law really
grows out of them.
One other point must be noticed, before dealing immediately with the
English marriage laws, and that is the influence exerted over them by
ecclesiastical Christianity.
The Old Testament expressly sanctions polygamy; but while the New
Testament does not proscribe it--except in the case of bishops and
deacons--ecclesiastical Christianity has generally been in favour of
monogamy; at the same time, both the New Testament and the Church have
insisted on the inferiority of the female sex; "the husband is the
head of the wife" (Eph. v. 23); "wives, submit yourselves unto your
own husbands" (Col. iii. 18); "your women... are commanded to be under
obedience" (1 Cor. xiv. 34); "ye wives, be in subjection to your
own husbands... even as Sara obeyed Abraham, calling him lord, whose
daughters ye are as long as ye do well" (1 Pet. iii. 1, 6). The
common law of England is quite in accordance with this ancient Eastern
teaching, and regards men as superior to women; "Among the children of
the purchaser, males take before females, or, as our male lawgivers,
have expressed it, the worthiest of blood shall be preferred" ("Comm, on
the Laws of England," J. Stephen, 7th ed. vol. i. p. 402).
The feudal system did much, of course, to perpetuate the subjection of
women, it being to the interest of the lord paramount that the fiefs
should descend in the male line in those rough ages, when wars and civil
feuds were almost perpetual, it was inevitable that the sex with the
biggest body and strongest sinews should have the upper hand; the pity
is that English gentlemen to-day are content to allow the law to remain
unaltered, when the whole face of society has changed.
Let us now turn to the disabilities imposed upon women by marriage.
Blackstone lays down, in his world-famous "Commentaries on the Laws of
England," that the first of the "absolute rights of every Englishman" is
"the legal and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation" (9th ed., bk. 1, p. 129). The second
right is personal liberty, and he says: "the confinement of a person in
anywise is an imprisonment. So that the keeping; a man against his will
in a private house.... is an imprisonment" (Ibid, 136): The third is
property, "which consists in the free use and enjoyment of all his
acquisitions, without any control or diminution, save only by the
laws of the land" (Ibid, 138). A subordinate right, necessary for the
enforcement of the others, is "that of applying to the courts of justice
for redress of injuries." I shall proceed to show that a married woman
is deprived of these rights by the mere fact of her marriage.
In the first place, by marriage a woman loses her legal existence; the
law does not recognize her, excepting in some few cases, when it becomes
conscious of her existence in order to punish her for some crime or
misdemeanour. Black-stone says--and no subsequent legislation has in
any way modified his dictum: "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 or
consolidated into that of the husband; under whose wing, protection,
and _cover_, she performs every thing; and is therefore called in our
law-French a _feme covert"_ (p. 442). "Husband and wife are one person
in law" (Comyn's Digest, 5th ed., vol. ii., p. 208), and from this it
follows that "by no conveyance at the common law could the husband give
an estate to his wife;" that "a. husband cannot covenant or contract
with his wife," even for her own advantage, and that any prenuptial
contract made with her as to money she shall enjoy for her separate use
after marriage, becomes void as soon as she is married. All covenants
for the wife's benefit must be made with some one else, and the husband
must covenant with some other man or unmarried woman who acts as trustee
for the wife. This is the fundamental wrong from which all the others
flow: "'Husband and wife are one person,' and that one is the husband."
The wife's body, her reputation, are no longer her own. She can gain no
legal redress for injury, for the law does, not recognize her existence
except under cover of her husband's suit. In. some cases more modern
legislation has so far become conscious of her, as to protect her
against her husband, and if this protection separates her from him, it
leaves her the more utterly at the mercy of the world.
Various curious results flow, in criminal law, from this supposition
that husband and wife are only one person. They are incompetent--except
in a few special instances--to give evidence for or against each other
in criminal cases; if a woman's husband be one of several defendants
indicted together, the woman cannot give evidence either for or against
any of them. Where the wife of an accomplice is the only person to
confirm her husband's statement, the statement falls to the ground, as,
in practice, confirmation thereof is required; in the case of Rex v.
Neal (7 C. and P 168), Justice Park said: "Confirmation by the wife is,
in this case, really no confirmation at all. The wife and the accomplice
must be taken as one for this purpose. The prisoners must be acquitted."
They may, however, be severally called as witnesses by the prosecution
and the defence, in order that they may contradict each other. Where the
wife has suffered personal violence from her husband she is permitted to
swear the peace against him, and in divorce suits husband and wife are
both admissible as witnesses. A wife who sets fire to her husband's
house may escape punishment, as in the case of Rex. v. March: "March and
his wife had lived separate for about two years; and, previous to the
act, when she applied for the candle with which it was done, she said it
was to set her husband's house on fire, because she wanted to burn
him to death. Upon a case reserved upon the question whether it was an
offence within the 7 and 8 George IV., cap. 30, sec. 2, for a wife to
set fire to her husband's house for the purpose of doing him a personal
injury, the conviction was held wrong, the learned judges thinking that
to constitute the offence, it was essential that there should be an
intent to injure or defraud some third person, not one identified
with herself" (Ibid, p. 899). Identification with one's beloved may be
delightful in theory, but when, in practice, it comes to being burned
at pleasure, surely the greatest stickler for the "twain being one" must
feel some twinges of doubt. The identity of husband and wife is often
by no means advantageous to the husband, for he thereby becomes
responsible, to a great extent, for his wife's misdoings. "For
slanderous words spoken by the wife, libel published by her alone,
trespass, assault and battery, &c., he is liable to be so sued, whether
the act was committed with or without his sanction or knowledge.... And
wherever the action is grounded on a tort, committed by the wife, it no
way affects the necessity of joining the husband, that the parties are
living apart, nor even that they are divorced _a mensâ et thoro,_ or
that the wife is living in adultery" (Lush's "Common Law Practice,"
2nded. p. 156). Pleasant position for a man whose wife may have left
him, to be suddenly dragged before a court of justice for some misdeed
of hers, of which he may never have heard until he finds himself
summoned to answer for it! A large amount of injustice arises from
this absurd, fiction that two are one; it sometimes injures, sometimes
protects the married woman, and it often shields those who have wronged
her; but whether it injure or whether it protect, it is equally vicious;
it is _unjust_, and injustice is a radical injury to a community, and by
destroying the reasonableness and the certainty of the law, it saps that
reverence for it which is one of the safeguards of society.
Let us now take Blackstone's "rights of every Englishman," and see what
rights the common law allowed to a married Englishwoman. A married woman
is not protected by the law in the "uninterrupted enjoyment of" her
"limbs," her "body," or her "reputation." On the contrary: "If a wife
be injured in her person, or her property, she can bring no action for
redress without her husband's concurrence, and in his name as well as
her own" (Blackstone, p. 443). If in a railway accident a married woman
has her leg broken, she cannot sue the railway company for damages;
she is not a damaged _person_; in the eye of the law, she is a piece of
damaged _property_, and the compensation is to be made to her owner.
If she is attacked and beaten she cannot at law sue her assailant; her
master suffers loss and inconvenience by the assault on his housekeeper,
and his action is necessary to obtain redress. If she is libelled,
she cannot protect her good name, for she is incapable by herself of
maintaining an action. In fact, it is not even needful that her name
should appear at all in the matter: "the husband may sue alone for
loss of his wife's society by injury done to her, or for damage to her
reputation" (Comyn's Digest, under "Baron and Feme"). The following
curious statement of the law on this head is given in Broom's
"Commentaries:"
"Injuries which may be offered to a person, considered as a husband, and
which are cognizable in a court of common law, are principally three:
1, abduction, or taking away a man's wife; 2, beating her; 3, indirectly
causing her some personal hurt, by negligence or otherwise. 1. As to the
first sort, abduction, or taking her away, this may either be by fraud
and persuasion, or open violence; though the law in both cases supposes
force and constraint, the wife having no power to consent, and therefore
gives a remedy by action of trespass; and the husband is also entitled
to recover damages in an action on the case against such as persuade and
entice the wife to live separate from him without a sufficient cause....
2, 3. The second and third injuries above mentioned are constituted by
beating a man's wife, or otherwise ill-using her; or causing hurt to her
by negligence. For a common assault upon, or battery, or imprisonment,
of the wife, the law gives the usual remedy to recover damages, by
action of trespass, which must be brought in the names of the husband
and wife jointly: but if the beating or other maltreatment be so
enormous, that thereby the husband is deprived for any time of the
company and assistance of his wife, the law then gives him a separate
remedy by action for this ill-usage, _per quod consortium amisit_, in
which he may recover a satisfaction in damages. By a provision of the C.
L. Proc. Act, 1852, s. 40, in an action by husband and wife jointly for
an injury to the wife, the husband is now allowed to add a claim in
his own right--as for the loss of the wife's society--or where a joint
trespass and assault have been committed on the husband and his wife"
(vol. iii., pp. 149, 150). So far is recognised the husband's complete
claim over his wife's person, that anyone who receives a married woman
into his house and gives her shelter there after having received notice
from her husband that he is not to permit her to remain under his roof,
actually becomes liable in damages to the husband. The husband cannot
sue for damages if he has turned his wife out of doors, or if he has
lost his right of control by cruelty or adultery; short of this, he may
obtain damages against any friend or relative of the woman who gives her
shelter. The wife has no such remedy against anyone who may induce the
husband to live apart, or who may give him house-room at his own wish.
The reason for the law being as we find it, is stated by Broom without
the smallest compunction: "We may observe that in these relative
injuries notice is only taken of the wrong done to the superior of the
parties related, by the breach and dissolution of either the relation
itself, or at least the advantage accruing therefrom; while the loss of
the inferior by such injuries is, except where the death of a parent has
been caused by negligence, unregarded. One reason for which may be, that
the inferior has no kind of property in the company, care, or assistance
of the superior, as the superior is held to have in that of the
inferior; and therefore the inferior can, in contemplation of law,
suffer no loss consequential on a wrongful act done to his superior. The
wife cannot recover damages for the beating of her husband. The child
has no property in his father or guardian. And the servant, whose master
is disabled, does not thereby lose his maintenance or wages (Ibid,
p. 153). A man may recover damages equally for the injury done to his
servant or to his wife; in both cases he loses their services, and the
law recompenses him. A peculiarly disgusting phase of this claim is
where a husband claims damages against a co-respondent in the divorce
court; if a wife be unfaithful, the husband can not only get a divorce,
but can also claim a money payment from the seducer to make up for the
damage he has sustained by losing his wife's services. An unmarried
girl, under age, is regarded as the property of her father, and the
father may bring an action against her seducer for the loss of his
daughter's services. It is not the woman who is injured, or who has any
redress; it is her male owner who can recover damages for the injury
done to his property."
If a wife be separated from her husband, either by deed or by judicial
decree, she has no remedy for injury or for libel, unless by the
doubtful plan of using her husband's name without his consent. On this
injustice Lord Lyndhurst, speaking in the House of Lords in 1856, said:
"A wife is separated from her husband by a decree of the Ecclesiastical
Court, the reason for that decree being the husband's misconduct--his
cruelty, it may be, or his adultery. From that moment the wife is almost
in a state of outlawry. She may not enter into a contract, or if she
do, she has no means of enforcing it. The law, so far from protecting,
oppresses her. She is homeless, helpless, hopeless, and almost wholly
destitute of civil rights. She is liable to all manner of injustice,
whether by plot or by violence. She may be wronged in all possible ways,
and her character may be mercilessly defamed; yet she has no redress.
She is at the mercy of her enemies. Is that fair? Is that honest? Can
it be vindicated upon any principle of justice, of mercy or of common
humanity?"
A married woman loses control over her own body; it belongs to her
owner, not to herself; no force, no violence, on the husband's part
in conjugal relations is regarded as possible by the law; she may be
suffering, ill, it matters not; force or constraint is recognised by
the law as rape, in all cases save that of marriage; the law "holds,
it to be felony to force even a concubine or harlot" (Broom's
"Commentaries," vol. iv., p. 255), but no rape can be committed by a
husband on a wife; the consent given in marriage is held to cover
the life, and if--as sometimes occurs--a miscarriage or premature
confinement be brought on by the husband's selfish passions, no offence
is committed in the eye of the law, for the wife is the husband's
property, and by marriage she has lost the right of control over her own
body. The English marriage law sweeps away all the tenderness, all the
grace, all the generosity of love, and transforms conjugal affection
into a hard and brutal legal right.
By the common law the husband has a right to inflict corporal punishment
on his wife, and although this right is now much restricted, the effect
of the law is seen in the brutal treatment of wives among the
rougher classes, and the light--sometimes no--punishment inflicted on
wife-beaters. The common law is thus given by Blackstone: "The husband
also (by the old law) might give his wife moderate correction. For as
he is to answer for her misbehaviour, the law thought it reasonable
to entrust him with this power of restraining her, by domestic
chastisement, in the same moderation that a man is allowed to correct
his apprentices or children. The lower rank of people, who were
always fond of the old common law, still claim and exert their ancient
privilege." Blackstone grimly adds, after saying this is all for woman's
protection: "So great a favourite is the female sex of the laws of
England" (444 and 445). This "ancient privilege" is very commonly
exercised at the present time. A man who dragged his wife out of bed
(1877), and, pulling off her nightdress, roasted her in front of the
fire, was punished (?) by being bound over to keep the peace for a short
period. Men who knock their wives down, who dance on them, who drag them
about by the hair, &c., are condemned to brief terms of imprisonment,
and are then allowed to resume their marital authority, and commence a
new course of ill-treatment. In dealing later with the changes I shall
recommend in the marriage laws, this point will come under discussion.
Coming to the second "right," of "personal liberty," we find that a
married woman has no such right. Blackstone says, as we have seen:
"the confinement of a person in any wise is an imprisonment So that the
keeping a man against his will in a private house... is an imprisonment"
(p. 136). But a husband may legally act as his wife's gaoler; "the
courts of law will still permit a husband to restrain his wife of her
liberty, in case of any gross misbehaviour" (Blackstone, p. 445). "If
the wife squanders his estate, or goes into lewd company, he may deprive
her of liberty" (Comyn's Digest, under "Baron and Feme"). Broom says
that at the present time "there can be no question respecting the
common-law right of a husband to restrain his wife of her personal
liberty, with a view to prevent her going into society of which he
disapproves, or otherwise disobeying his rightful authority; such right
must not, however, be exercised unnecessarily, or with undue severity:
and the moment that the wife by returning to her conjugal duties, makes
restraint of her person unnecessary, such restraint becomes unlawful"
(vol. i, p. 547). In the year 1877 a publican at Spilsby chained up his
wife to the wall from one day to the afternoon of the following one, in
order, he said, to keep her from drink; the magistrates dismissed him
without punishment. It may be argued that a woman should not get drunk,
go into bad company, &c. Quite so; neither should a man. But would men
admit, that under similar circumstances, a wife should have legal power
to deprive her husband of liberty? If not, there is no reason in justice
why the husband should be permitted to exercise it. Offences known to
the law should be punished by the law, and by the law alone; offences
which the law cannot touch should entail no punishment on an adult at
the hands of a private individual. Public disapproval may brand them,
but no personal chastisement should be inflicted by arbitrary and
irresponsible power.
The third right, of "property," has also no existence for married women.
Unmarried women have here no ground for complaint: "A _feme sole_,
before her marriage, may do all acts for disposition, etc., of her
lands or goods which any man in the same circumstances may do" (Comyn's
Digest, under "Baron and Feme"). The disabilities which affect women
as women do not touch property; a _feme sole_ may own real or personal
estate, buy, sell, give, contract, sue, and be sued, just as though
she were of the "worthier blood;" it is marriage that, like felony and
insanity, destroys her capability as proprietor. According to the common
law--with which we will deal first--the following results accrued from
marriage:--
"Whatever personal property belonged to the wife before marriage, is by
marriage absolutely vested in the husband... in chattel interests, the
sole and absolute property vests in the husband, to be disposed of at
his pleasure, if he chooses to take possession of them" (Blackstone,
book ii. 443). If he takes possession, they do not, at his death, revert
to the wife, but go to his heirs or to anyone he chooses by will. "If
a woman be seized of an estate of inheritance, and marries, her husband
shall be seized of in her right" (Comyn's Digest, under "Baron and
Feme"). If a woman own land in her own right, all rents and profits are
not hers, but her husband's; even arrears of rents due before coverture
become his; he may make a lease of her land, commencing after his own
death, and she is barred, although she survive him; he may dispose of
his wife's interest; it may be forfeited by his crime, seized for his
debt; she only regains it if she survives him and he has not disposed of
it. If a woman, before marriage, lets her land on a lease, the rental,
after marriage, becomes her husband's, and her receipt is not a good
discharge. If a wife grants a rent-charge out of her own lands (or,
rather, what should be her own) without the husband's consent, it is
void. All personal goods that "the wife has in possession in her own
right, are vested in her husband by the marriage" (Ibid); gifts to her
become his; if he sues for a debt due to his wife, and recovers it, it
is his; if a legacy be left her, it goes to him; after his death, all
that was her personal property originally, goes to his executors and
administrators, and does not revert to her; so absolutely is all she
may become possessed of his by law that if, after a divorce _a mensâ et
thoro_, the wife should sue another woman for adultery with her husband,
and should be awarded her costs, the husband can release the woman from
payment.
If a woman own land and lease it, then if, during marriage, the husband
reduce it into possession, "as where rent accruing on a lease granted by
the wife _dum sola_ is received by a person appointed for that purpose
during the husband's life," under such circumstances the husband's
"executors, not his widow, must sue the agent" (Lush's "Common Law
Practice," 2nd. ed., p. 27). In a case where "certain leasehold property
was conveyed to trustees upon trust to permit the wife to receive the
rents thereof to her sole and separate use, and she after marriage
deposited with her trustees part of such rents and died; it was held
that her husband might recover the same in an action in his own right.
Such money, so deposited, was not a _chose in action_ belonging to
the wife, but money belonging to the husband, the trust having been
discharged in the payment of the rents to the wife" (Ibid, p. 9 7 ).
Marriage, to a man, is regarded as a kind of lucrative business: "The
next method of acquiring property in goods and chattels is by marriage;
whereby those chattels, which belonged formerly to the wife, are by act
of law vested in the husband, with the same degree of property, and with
the same powers, as the wife, when sole, had over them... A distinction
is taken between chattels real and chattels personal, and of chattels
personal, whether in possession or reversion, or in action. A chattel
real vests in the husband, not absolutely, but _sub modo_. As, in
case of a lease for years, the husband shall receive all the rents and
profits of it, and nay, if he pleases, sell, surrender, or dispose of
it during the coverture; if he be outlawed or attainted, it shall be
forfeited to the king; it is liable to execution for his debts; and if
he survives his wife, it is to all intents and purposes his own. Yet, if
he has made no disposition thereof in his lifetime, and dies before his
wife, he cannot dispose of it by will: for, the husband having made no
alteration in the property during his life, it never was transferred
from the wife; but after his death she shall remain in her ancient
possession, and it shall not go to his executors. If, however, the wife
die in the husband's lifetime, the chattel real survives to him. As to
chattels personal (or choses) in action, as debts upon bonds, contracts,
and the like, these the husband may have if he pleases; that is, if he
reduces them into possession by receiving or recovering them at law. And
upon such receipt or recovery they are absolutely and entirely his own;
and shall go to his executors or administrators, or as he shall bequeath
them by will, and shall not revest in the wife. But, if he dies before
he has recovered or reduced them into possession, so that, at his death,
they still continue choses in action, they shall survive to the wife;
for the husband never exerted the power he had of obtaining an
exclusive property in them. If the wife die before the husband has
reduced choses in action into possession, he does not become entitled by
survivorship; nevertheless, he may, by becoming her administrator, gain
a title. Chattels in possession, such as ready money and the like, vest
absolutely in the husband, and he may deal with them, either whilst
living, or by his will, as he pleases. Where the interest of the wife
is reversionary, the husband's power is but small; unless it falls into
possession during the marriage, his contracts or engagements do not bind
it" ("Comm, on the Laws of England," Broom and Hadley, vol. ii., pp.
618, 619). So highly does the law value the claims of a husband that it
recognizes them as existing even before marriage; for if a woman who
has contracted an engagement to marry dispose of her property privately,
settle it on herself, or on her children, without the cognizance of the
man to whom she is engaged, such settlement or disposition may be set
aside by the husband as a fraud.
So cruel, as regards, property, was felt to be the action of the common
law, that the wealthy devised means to escape from it, and women of
property were protected on their marriage by "marriage settlements,"
whereby they were contracted out of the law. A woman's property was
by this means, "settled on herself;" it was necessary to treat her as
incapable, so her property was not in her own power but was vested in
trustees for her separate use; thus che principal, or the estate, was
protected, but the whole interest or rental, as before, could be taken
by the husband the moment it was received by the wife; her signature
became necessary to draw it, but the moment it came into her possession
it ceased to be hers. The next step was an attempt to protect women's
money in their own hands; terrible cases of wrong were continually
arising: men who deserted their wives, and left them to maintain the
burden of a family, came back after the wife had accumulated a little
property, sold the furniture, pocketed the proceeds, and departed,
leaving the wife to recommence her labours. Orders of protection were
given by magistrates, but these were not found sufficient. At last,
parliamentary interference was called for with an urgency that could
no longer be resisted, and a Bill to amend the laws relating to married
women's property was introduced into the House of Commons. How sore was
the need of such amendment may be seen from the following extracts:--
Mr. Russell Gurney, in moving (April 14, 1869) the second reading of
the Bill, observed: "It is now proposed that, for the first time in our
history, the property of one half of the married people of this country
should receive the protection of the law. Up to this time the property
of a wife has had no protection from the law, or rather, he should say,
in the eye of the law it has had no existence. From the moment of her
marriage the wife, in fact, possesses no property; whatever she may up
to that time have possessed, by the very act of marriage passes from
her, and any gift or bequest made to her becomes at once the property
of the husband. Nay, Even that which one might suppose to be her
inalienable right, the fruit of her mental or bodily toil, is denied
her. She may be gifted with powers which enable her to earn an ample
fortune, but the moment it is earned, it is not hers,' it is her
husband's. In fact, from the time of her entering into what is described
as an honourable estate, the law pronounces her unfit to hold any
property whatever."
Mr. Jessel (now Master of the Rolls) in seconding the motion, in the
course of an able and impassioned speech, said: "The existing law is a
relic of slavery, and the House is now asked to abolish the last remains
of slavery in England. In considering what ought to be the nature of
the law, we cannot deny that no one should be deprived of the power of
disposition, unless on proof of unfitness to exercise that power; and
it is not intelligible on what principle a woman should be considered
incapable of contracting immediately after she has, with the sanction
of the law, entered into the most important contract conceivable. The
slavery laws of antiquity are the origin of the common law on this
subject. The Roman law originally regarded the position of a wife as
similar to that of a daughter who had no property, and might be sold
into slavery at the will of her father. When the Roman law became that
of a civilised people, the position of the wife was altogether
changed.... The ancient Germans--from whom our law is derived--put the
woman into the power of her husband in the same sense as the ancient
Roman law did. She became his slave. The law of slavery--whether Roman
or English--for we once had slaves and slave-laws in England--gave to
the master of a slave the two important rights of flogging and
imprisoning him. A slave could not possess property of his own, and
could not make contracts except for his master's benefit, and the master
alone could sue for an injury to the slave; while the only liability of
the master was that he must not let his slave starve. This is exactly
the position of the wife under the English law; the husband has the
right of flogging and imprisoning her, as may be seen by those who read
Blackstone's chapter on the relations of husband and wife. She cannot
possess property--she cannot contract, except it is as his agent; and he
alone can sue if she is libelled or suffers a personal injury; while all
the husband is compellable to do for her is to pay for necessaries. It
is astonishing that a law founded on such principles should have
survived to the nineteenth century."
A quotation from a later debate finds its fit place here: Mr. Hinde
Palmer, in moving (February 19, 1873) the second reading of the Married
Woman's Property Act (1870) Amendment Bill, pointed out that the common
law was, that by marriage "the whole of a woman's personal property was
immediately vested in her husband, and placed entirely at his disposal.
By contracting marriage, a woman forfeited all her property. In 1868,
the Chancellor of the Exchequer, Mr. Lowe, said: 'Show me what crime
there is in matrimony that it should be visited by the same punishment
as high treason--namely, confiscation, for that is really the fact.' Mr.
Mill, too, speaking on that question, said that a large portion of the
inhabitants of this country were in the anomalous position of having
imposed on them, without having done anything to deserve it, what we
inflicted on the worst criminals as a penalty: like felons, they were
incapable of holding property."
Some great and beneficial changes were made by the Acts of 1870 and
1873, although much yet remains to be done. By the Act of 1870, the
wages and earnings of married women were protected; they were made
capable of depositing money in the savings' banks in their own names;
they might hold property in the Funds in their own names, and have the
dividends paid to them; they might hold fully-paid up shares, or stock,
to which no liability was attached; property in societies might be
retained by them; money coming to a married woman as the next-of-kin, or
one of the next-of-kin to an intestate, or by deed or will, was made
her own, provided that such money did not exceed £200; the rents and
profits of freehold, copyhold, or customary-hold property inherited by
a married woman were to be her own; a married woman might insure her
own or her husband's life; might, under some circumstances, maintain
an action in her own name; married women were made liable for the
maintenance of their husbands and children. The Act of 1873 relates
entirely to the recovery of debts contracted by the woman before
marriage. It will be perceived that these Acts are very inadequate as
regards placing married women in a just position towards their property,
but they are certainly a step in the right direction. The Acts only
apply to those women who have been married subsequently to their
passing.
One great omission in them will have to be promptly remedied, both for
the sake of married women and for the sake of their creditors: while a
married woman now may, under some circumstances, sue, no machinery is
provided whereby she may be sued--without joining her husband.
In an admirable letter to the Times of March 14, 1878, Mrs. Ursule
Bright, alluding to the "obscurity and uncertainty of the law," points
out "The effect of that obscurity upon the credit of respectable married
women earning their own and their children's bread, in any employment or
business carried on separately from their husband; the inconvenience and
risk to their creditors is, as you have most ably pointed out, great;
but the injury to honest wives is far greater. It puts them at a
considerable disadvantage in the labour market and in business. A
married woman, for instance, keeping a little shop, may sue for debts
due to her, but has no corresponding liability to be sued. If the
whereabouts of the husband is not very clearly defined, it is evident
she may have some difficulty in obtaining credit.
"Again, what employer of labour can with any security engage the
services of a married woman? She may leave her work at the mill at an
hour's notice unfinished, and her employer has no remedy against her
for breach of contract, as a married woman can make no contract which is
legally binding. There is no question that such a state of the law must
operate as a restriction upon her power to support herself and family.
"The state of muddle of the present law is almost inconceivable. Even
now a woman need not pay her debts contracted before marriage out of
earnings made after marriage. Suppos an artist or a literary woman to
marry when burdened with debts and having no property; should she be
earning £1,000 or £10,000 a year by her profession after marriage,
these earnings could not be made liable for her debts contracted before
marriage."
It cannot too plainly be repeated that non-liability to be sued means
non-existence of credit.