the Acts of 1870 and 1873. Archbold says--dealing with indictments for
theft--"Where the person named as owner appears to be a married woman,
the defendant must, unless the indictment is amended, be acquitted...
because in law the goods are the property of the husband; even though
she be living apart from her husband upon an income arising from
property vested in trustees for her separate use, because the goods
cannot be the property of the trustees; and, in law, a married woman
has no property" (Archbold's "Criminal Cases," p. 43). Archbold gives as
exceptions to this general rule, where a judicial separation has taken
place, where the wife has obtained a protection order, or where the
property is such as is covered by the Married Women's Property Act,
1870. "Where a married woman lived apart from her husband, upon an
income arising from property vested in trustees for her separate use,
the judges held that a house which she lived in was properly described
as her husband's dwelling-house, though she paid the rent out of her
separate property, and the husband had never been in it. R. v. French,
R. v. R., 491" (Ibid, p. 521). If a burglary be committed in a
house belonging to a married woman, the house must be said to be the
dwelling-house of her husband, or the burglar will be acquitted; if she
be living separate from her husband, paying her own rent out of money
secured for her separate use, it makes no difference; it was decided, in
the case of Rex v. French, that a married woman could own no property,
and that the house must, therefore, belong to the husband. If a married
woman picks up a purse in the road and is robbed of it, the property
vests in the husband: "Where goods are in the possession of the wife,
they must be laid as the goods of her husband; thus, if A is indicted
for stealing the goods of B, and it appears that B was a _feme covert_
at the time, A must be acquitted. And even if the wife have only
received money as the agent of another person, and she is robbed of that
money before her husband receives it into his possession, still it
is well laid as his money in an indictment for larceny. An indictment
charging the stealing of a £5 Bank of England note, the property of E.
Wall, averring, in the usual way, that the money secured by the note
was due and payable to E. Wall; it appeared that E. Wall's wife had
been employed to sell sheep belonging to her father, of or in which her
husband never had either possession or any interest, and she received
the note in payment for the sheep, and it was stolen from her before
she left the place where she received it. It was objected that the note
never was the property of E. Wall, either actually or constructively;
the money secured by it was not his, and he had no qualified property in
it, as it never was in his possession; but it was held that the property
was properly laid" (Russell on Crimes, 5th ed., vol. ii., pp. 243,
244). Yet even a child, in the eye of the law, has property, and if
his clothes are stolen, it is safer to allege them to be the child's
property. The main principle of English law remains unaltered by recent
legislation, that "a married woman has no property." Married women
share incapacity to manage property with minors and lunatics; minors,
lunatics, and married women are taken care of by trustees; minors become
of age, lunatics often recover, married women remain incapable during
the whole of their married life.
Being incapable of holding property, a married woman is of course,
incapable of making a will. Here, also, the Common Law may be
checkmated. She may make a will "by virtue of a power reserved to her,
or of a marriage settlement, or with her husband's assent, or it may be
made by her to carry her separate estate; and the court in determining
whether or not such will is entitled to probate, will not go minutely
into the question, but will only require that the testatrix had a power
reserved to her, or was entitled to separate estate, and will, if so
satisfied, grant probate to her executor, leaving it to the Court of
Chancery, as the court of construction, to say what portion of her
estate, if any, will pass under such will. In this case the husband,
though he may not be entitled to take probate of his wife's will, may
administer to such of her effects as do not pass under the will" ("Comm,
on the Laws of England," Broom and Hadley, vol. iii., pp. 427, 428).
Thus we see that a husband may will away from his wife her own original
property, but a wife may not even will away her own, unless the right
be specially reserved to her before marriage. And yet it is urged that
women have no need of votes, their interests being so well looked after
by their fathers, husbands, and brothers!
We have thus seen that the "rights of every Englishman" are destroyed
in women by marriage; one would imagine that matrimony was a crime for
which a woman deserved punishment, and that confiscation and outlawry
were the fit rewards of her misdeed.
From these three great fundamental wrongs flow a large number of legal
disabilities. Take the case of a prisoner accused of misdemeanour; he is
often set free on his own recognizances; but a married woman cannot be
so released, for she is incapable of becoming bail or of giving her own
recognizances; she is here again placed in bad company: "no person
who has been convicted of any crime by which he has become infamous
is allowed to be surety for any person charged or suspected of an
indictable offence. Nor can a married woman, or an infant, or a prisoner
in custody, be bail" (Archbold, p. 88). Let us now suppose that a woman
be accused of some misdemeanour, and be committed for trial: she desires
to have her case tried by a higher court than the usual one, and wishes
to remove the indictment by writ of _certiorari_: she finds that
the advantage is denied her, because, as a married woman, she has
no property, and she cannot therefore enter into the necessary
recognizances to pay costs in the case of a conviction. Thus a married
woman finds herself placed at a cruel disadvantage as compared with an
unmarried woman or with men.
In matters of business, difficulties arise on every hand: a married
woman is incapable of making a contract; if she takes a house without
her husband's knowledge and without stating that she is married, the
landlord may repudiate the contract; if she states that she is married,
the landlord knows that she is unable to make a legal contract, and
refuses to let or lease to her, without heavy security. If she buys
things she cannot be sued for non-payment without making the husband a
defendant, and she consequently finds that she has no credit. If she
is cheated, she cannot sue, except in cases covered by the recent
Acts, without joining her husband, and so she has often to submit to be
wronged. "A _feme covert_ cannot sue without her husband being joined as
co-plaintiff, so long as the relation of marriage subsists. It matters
not that he is an alien, and has left the country; or that, being a
subject, he has absconded from the realm as a bankrupt or for other
purpose; or that he has become permanently resident abroad; or that they
are living apart under a deed of separation; or have been divorced _a
mensâ et thoro_; for none of these events dissolve or work a suspension
of the marriage contract, and so long as that endures, the wife
is unable to sue alone, whatever the cause of action may be. This
disability results from the rule of law which vests in the husband not
only all the goods and chattels which belonged to the wife at the time
of the marriage, but also all which she acquires afterwards" (Lush's
"Common Law Practice," 2nd ed., pp. 33, 34). The same principle governs
all suits against a married woman; the husband must be sued with her:
"In all actions brought against a _feme covert_ while the relation of
marriage subsists, the husband must be joined for conformity, it being
an inflexible rule of law that a wife shall not be sued without her
husband.... If therefore a wife enters into a bond jointly with her
husband, or makes a bill of exchange, promissory note, or any other
contract, she cannot be sued thereon, but the action should be brought
against, and the bond, bill, alleged to have been made by, the husband"
(Ibid, p. 75).
The thoughtful author of the "Rights of Women" remarks that the
incapacity to sue is "traceable to the time when disputes were settled
by the judgment of arms. A man represents his wife at law now, because
in the days of the judicial combat he was her champion-at-arms, and she
is unable to sue now, because she was unable to fight then" (p. 22). The
explanation is a very reasonable one, and is only an additional proof
of the need of alteration in the law; our marriage laws are, as has
been shown above, the survival of barbarism, and we only ask that modern
civilisation will alter and improve them as it does everything else:
trial by combat has been destroyed; ought not its remains to be buried
out of sight? The consequence of these business disabilities is that a
married woman finds herself thwarted at every turn, and if she be
trying to gain a livelihood, and be separated from her husband, she is
constantly pained and annoyed by the marriage-fetter, which hinders
her activity and checks her efforts to make her way. The notion that
irresponsibility is an advantage is an entirely mistaken one; an
irresponsible person cannot be dealt with in business matters, and is
shut out of all the usual independent ways of obtaining a livelihood.
Authorship and servitude are the only paths really open to married
women; in every other career they find humiliating obstacles which it
needs both courage and perseverance to surmount.
Married women rank among the "persons in subjection to the power of
others;" they thus come among those who in many cases are not criminally
liable; "infants under the age of discretion," persons who are _non
compotes mentis_ (not of sound mind), and persons acting under coercion,
are not criminally liable for their misdeeds. A married woman is
presumed to act under her husband's coercion, unless the contrary
be proved, and she may thus escape punishment for her wrongdoings:
"Constraint of a superior is sometimes allowed as an excuse for criminal
misconduct, by reason of the matrimonial subjection of the wife to her
husband; but neither a son, nor a servant is excused for the commission
of any crime by the command or coercion of the parent or master. Thus,
if a woman commit theft, or burglary, by the coercion of her husband, or
even in his company, which the law _primâ facie_ construes a coercion,
she is dispunishable, being considered to have acted by compulsion, and
not of her own will" ("Comm, on the Laws of England," Broom and Hadley,
vol. iv., p. 27). "A _feme covert_ is so much favoured in respect of
that power and authority which her husband has over her, that she
shall not suffer any punishment for committing a bare theft, or even a
burglary, by the coercion of her husband, or in his company, which the
law construes a coercion" (Russell "On Crimes," vol. i., p. 139). "Where
the wife is to be considered merely as the servant of the husband,
she will not be answerable for the consequences of his breach of duty,
however fatal, though she may be privy to his conduct. C. Squire and his
wife were indicted for the murder of a boy;" he had been cruelly
treated by both, and died "from debility and want of proper food and
nourishment;" "Lawrence, J., directed the jury, that as the wife was the
servant of the husband, it was not her duty to provide the apprentice
with sufficient food and nourishment, and that she was not guilty of
any breach of duty in neglecting to do so; though, if the husband had
allowed her sufficient food for the apprentice, and she had wilfully
withholden it from him, then she would have been guilty. But that here
the fact was otherwise; and therefore, though _in foro conscientiæ_ the
wife was equally guilty with the husband, yet in point of law she could
not be said to be guilty of not providing the apprentice with sufficient
food and nourishment" (Ibid., pp. 144, 145). It is hard to see what
advantage society gains by this curious fashion of reckoning married
women as children or lunatics. Some advantages, however, flow to a
criminal husband: a wife is not punishable for concealing her husband
from justice, knowing that he has committed felony; a husband may not
conceal his wife under analogous circumstances: "So strict is the law
where a felony is actually complete, in order to do effectual justice,
that the nearest relations are not suffered to aid or receive one
another. If the parent assists his child, or the child his parent, if
the brother receives the brother, the master his servant, or the servant
his master, or even if the husband receives his wife, having any of them
committed a felony, the receiver becomes an accessory _ex post facto_.
But a _feme covert_ cannot become an accessory by the receipt and
concealment of her husband; for she is presumed to act under his
coercion, and therefore she is not bound, neither ought she, to discover
her lord" (Ibid., p. 38). The wife of a blind husband must not, however,
regard her coverture as in all cases a protection, for it has been held
that if stolen goods were in her possession, her husband's blindness
preventing him from knowing of them, her coverture did not avail to
shelter her.
Any advantage which married women may possess through the supposition
that they are acting under the coercion of their husbands ought to be
summarily taken away from them. It is not for the safety of society
that criminals should escape punishment simply because they happen to
be married women; a criminal husband becomes much more dangerous to the
community if he is to have an irresponsible fellow-conspirator beside
him; two people--although the law regards them as one--can often commit
a crime that a single person could not accomplish, and it is not even
impossible that an unscrupulous woman, desiring to get rid easily for
awhile of an unpleasant husband, might actually be the secret prompter
of an offence, in the commission of which she might share, but in the
punishment of which she would have no part. For the sake of wives, as
well as of husbands, this irresponsibility should be put an end to,
for if a husband is to be held accountable for his wife's misdeeds
and debts, it is impossible for the law to refuse him control over her
actions; freedom and responsibility must go hand in hand, and women who
obtain the rights of freedom must accept the duties of responsibility.
A woman has a legal claim on her husband for the necessaries of life,
and a man may be compelled to support his wife. But her claim is a very
narrow one, as may be seen by the following case:--A man named Plummer
was indicted for the manslaughter of his wife; he had been separated
from her for several years, and paid her an allowance of 2s. 6d. a week;
the last payment was made on a Sunday, and she was turned out of her
lodgings on the Tuesday following; she was suffering from diarrhoea, and
on the Wednesday was very ill. Plummer was told of her condition,
but refused to give her shelter; the evening was wet, and a constable
meeting her wandering about took her to her husband's lodgings, but
he would not admit her; on Thursday he paid for a bed for her at a
public-house, and on Friday she died. Baron Gurney told the jury that
the prisoner could not be charged with having caused her death from
want of food, since he made her an allowance, and under ordinary
circumstances he might have refused to do anything more; the only
question was whether the refusal as to shelter had hastened her death.
The man was acquitted. A wife has also some limited rights over her
husband's property after his death; she may claim dower, her wearing
apparel, a bed, and some few other things, including her personal
jewellery. Her husband's power to deprive her of her personal ornaments
ceases with his life.
To redress the whole of the wrongs as to property, and to enable justice
to be done, it is only necessary to pass a short Act of Parliament,
ordaining that marriage shall in no fashion alter the civil status of a
woman, that she shall have over property the same rights as though she
were unmarried, and shall, in all civil and criminal matters, be held as
responsible as though she were a _feme sole_. In short, marriage; ought
no more to affect a woman's position than it does a man's, and should
carry with it no kind of legal disability; "marital control" should
cease to exist, and marriage should be regarded as a contract between
equals, and not as a bond between master and servant.
Those who are entirely opposed to the idea that a woman should not
forfeit her property on marriage, raise a number of theoretical
difficulties as to household expenses, ownership of furniture, &c.,
&c. Practically these would very seldom occur, if we may judge by the
experience of countries whose marriage laws do not entail forfeiture
on the woman who becomes a wife. In the "Rights of Women," quoted from
above, a very useful summary is given of the laws as to property in
various countries; in Germany these laws vary considerably in the
different states; one system, known as "Gutergemeinschaft" (community
of goods) is a great advance towards equality, although it is not by any
means the best resolution of the problem; under this system there is
no separate property, it is all merged in the common stock, and "the
husband, as such, has no more right over the common 'fund than the
wife, nor the wife than the husband" (p. 26); the husband administers as
"representative of the community, and not as husband. He is merely head
partner, as it were, and has no personal rights beyond that;" he may
be dispossessed of even this limited authority if he is wasteful; "he
cannot alienate or mortgage any of the common lands or rights without
her consent--a privilege, it must be remembered, which belongs to her,
not only over lands brought by herself, but also over those brought
by her husband to the marriage. And this control of the wife over the
immovables has, for parts of Prussia, been extended by a law of April
16th, 1850, over movables as well; for the husband has been forbidden to
dispose not only of immovables, but of the whole or part of the movable
property, without the consent of his wife. Nor can the husband by
himself make donations _mortis causa_; such arrangements take the
form of mutual agreements between the two respecting their claims of
inheritance to one another" (p. 27). In Austria, married couples are
more independent of each other; the wives retain their rights over their
own property, and can dispose of it "as they like, and sue or be sued
in respect of it, without marital authorisation or control; and just as
they have the free disposition of their property, so they can contract
with others as they please. A husband is unable to alienate any of his
wife's property in her name, or to lend or mortgage it, or to receive
any money, institute any law-suits, or make any arrangements in respect
of it unless he has her special mandate.... If no stipulation is made
at the marriage, each spouse retains his or her separate property, and
neither has a claim to anything gained or in any way received by the
other during the marriage" (p. 50). In the New York code (U.S.A.),
"beyond the claim of mutual support, neither [husband nor wife] has any
interest whatever in the property of the other. Hence either may into
any enter engagement or transaction with the other or with a stranger
with respect to property, just as they might do if they continued
unmarried" (p. 95). The apportionment of household expenses must
necessarily be left for the private arrangement of the married pair;
where the woman has property, or where she earns her livelihood it would
be her duty to contribute to the support of the common home; where
the couple are poor, and the care of the house falls directly on the
shoulders of the wife, her personal toil would be her fair contribution;
this matter should be arranged in the marriage contract, just as similar
matters are now dealt with in the marriage settlements of the wealthy.
As means of livelihood become more accessible to women the question
will be more and more easily arranged; it will no longer be the fashion
in homes of professional men that the husband shall over-work himself
in earning the means of support, while the wife over rests herself
in spending them, but a more evenly-divided duty shall strengthen the
husband's health by more leisure, and the wife's by more work. Recovery
of debts incurred for household expenses should be by suit against
husband and wife jointly, just as in a partnership the firm may now be
sued; recovery of personal debts should be by suits against the person
who had contracted them. Many a man's life is now rendered harder than
it ought to be, by the waste and extravagance of a wife who can pledge
his name and his credit, and even ruin him before he knows his danger:
would not the lives of such men be the happier and the less toilsome if
their wives were responsible for their own debts, and limited by their
own means? Many a woman's home is broken up, and her children beggared,
by the reckless spendthrift who wastes her fortune or her earnings:
would not the lives of such women be less hopeless, if marriage left
their property in their own hands, and did not give them a master as
well as a husband? Women, under these circumstances, would, of course,
become liable for the support of their children, equally with their
husbands--a liability which is, indeed, recognized by the Married
Women's Property Act (1870), s. 14.
It is sometimes further urged by those who like "a man to be master in
his own house," that unless women forfeited their property in marriage,
there would be constant discord in the home. Surely the contrary effect
would be produced. Mrs. Mill well says, in the Essay before quoted from:
"The highest order of durable and happy attachments would be a hundred
times more frequent than they are, if the affection which the two sexes
sought from one another were that genuine friendship which only exists
between equals in privileges as in faculties." Nothing is so likely to
cause unhappiness as the tendency to tyrannize, generated in the man by
authority, and the tendency to rebel, generated in the woman by enforced
submission. No grown person should be under the arbitrary power
of another; dependence is touching in the infant because of its
helplessness; it is revolting in the grown man or woman because with
maturity of power should come dignity of self-support.
In a brilliant article in the _Westminster Review_ (July, 1874) the
writer well says: "Would it not, to begin with, be well to instruct
girls that weakness, cowardice, and ignorance, cannot constitute at once
the perfection of womankind and the imperfection of mankind?" It is time
to do away with the oak and ivy ideal, and to teach each plant to grow
strong and self-supporting. Perfect equality would, under this system,
be found in the home, and mutual respect and deference would replace the
alternate coaxing and commandment now too often seen. Equal rights would
abolish both tyranny and rebellion; there would be more courtesy in the
husband, more straightforwardness in the wife. Then, indeed, would there
be some hope of generally happy marriages, but, as has been eloquently
said by the writer just quoted, "till absolute social and legal equality
is the basis of the sacred partnership of marriage (the division of
labours and duties in the family, by free agreement, implying no sort of
inequality), till no superiority is recognized on either side but that
of individual character and capacity, till marriage is no longer legally
surrounded with penalties on the woman who enters into it as though she
were a criminal--till then the truest love, the truest sympathy, the
truest happiness in it, will be the exception rather than the rule, and
the real value of this relation, domestic and social, will be fatally
missed." That some marriages are happy, in spite of the evil law, no one
will deny; but these are the exception, not the rule. The law, as it is,
directly tends to promote unhappiness, and its whole influence on the
relations of the sexes is injurious. To quote Mrs. Mill once more: "The
influence of the position tends eminently to promote selfishness.
The most insignificant of men, the man who can obtain influence or
consideration nowhere else, finds one place where he is chief and head.
There is one person, often greatly his superior in understanding, who
is obliged to consult him, and whom he is not obliged to consult. He
is judge, magistrate, ruler, over their joint concerns; arbiter of all
differences between them.... His is now the only tribunal, in civilized
life, in which the same person is judge and party. A generous mind in
such a situation makes the balance incline against its own side, and
gives the other not less, but more, than a fair equality, and thus the
weaker side may be enabled to turn the very fact of dependence into an
instrument of power, and in default of justice, take an ungenerous
advantage of generosity; rendering the unjust power, to those who make
an unselfish use of it, a torment and a burthen. But how is it when
average men are invested with this power, without reciprocity and
without responsibility? Give such a man the idea that he is first in law
and in opinion--that to will is his part, and hers to submit--it is
absurd to suppose that this idea merely glides over his mind, without
sinking into it, or having any effect on his feelings and practice. If
there is any self-will in the man, he becomes either the conscious or
unconscious despot of his household. The wife, indeed, often succeeds in
gaining her objects, but it is by some of the many various forms of
indirectness and management." When marriage is as it should be, there
will be no superior and inferior by right of position; but men and
women, whether married or unmarried, will retain intact the natural
rights "belonging to every Englishman."