HISTORY OF WOMEN'S RIGHTS IN ENGLAND
Since I have now given a brief summary of the canon law, which until the
Reformation marked the general principles that guided the laws of all
Europe on the subject of women, I propose next to consider more
particularly the history of women's rights in England; for the
institutions of England, being the basis of our own, will necessarily be
more pertinent to us than those of Continental countries, to which I
shall not devote more than a passing comment here and there. My inquiry
will naturally fall into certain well-defined parts. The status of the
unmarried woman is different from that of her married sister and will,
accordingly, demand separate consideration. The rights of women, again,
are to be viewed both from the legal and the social standpoint. Their
legal rights include those of a private nature, such as the disposal of
property, and public rights, such as suffrage, sitting on a jury, or
holding office. Under social rights are included the right to an
education, to earn a living, and the like. Let us glance first at the
history of the legal rights of single women.
[Sidenote: Single women: Pollock and Maitland i, pp.
482-485.]
From very early times the law has continued to put the single woman of
mature age on practically a par with men so far as private single rights
are concerned. She could hold land, make a will or contract, could sue
and be sued, all of her own initiative; she needed no guardian. She
could herself, if a widow, be guardian of her own children.
[Sidenote: Pollock and Maitland, ii, 260-313.
Blackstone, ii, ch. 13.]
In the case of inheritance, however, women have to within extremely
recent times been treated less generously than men. The male sex has
been preferred in an inheritance; males excluded females of equal
degree; or, in the words of Blackstone: "In collateral inheritances the
male stock shall be preferred to the female; that is, kindred derived
from the blood of the male ancestors, however remote, shall be admitted
before those from the blood of the female, however near; unless where
the lands have, in fact, descended from a female. Thus the relations on
the father's side are admitted _in infinitum_ before those on the
mother's side are admitted at all." Blackstone justly remarks that this
harsh enactment of the laws of England was quite unknown to the Roman
law "wherein brethren and sisters were allowed to succeed to equal
portions of the inheritance." As an example, suppose we look for the
heir of John Stiles, deceased. The order of succession would be:
I. The eldest son, Matthew Stiles, or his issue.
II. If his line is extinct, then Gilbert Stiles and the other sons,
respectively, in order of birth, or their issue.
III. In default of these, all the daughters together, Margarite and
Charlotte Stiles, or their issue.
IV. On the failure of the descendants of John Stiles himself, the issue
of Geoffrey and Lucy Stiles, his parents, is called in, viz.: first,
Francis Stiles, the eldest brother of the whole blood, or his issue.
V. Then Oliver Stiles, and the other whole brothers, respectively, in
order of birth, or their issue.
VI. Then the sisters of the whole blood all together, Bridget and Alice
Stiles, or their issue.
And so on. It will be noted that females of equal degree inherited
together; and that a daughter excluded a brother of the dead man. Men
themselves, if younger sons, have suffered what seems to us a grave
injustice in the prevalence of the right of primogeniture, whereby, if
there are two or more males in equal degree, the eldest only can
inherit. This law might work for the benefit of certain females; thus,
the daughter, granddaughter, or great-granddaughter of an eldest son
will succeed before the younger son.
To public rights, such as sitting on a jury[393] or holding offices of
state, women never were admitted; that is a question that has become
prominent only in the twentieth century and will demand consideration in
its proper place.
[Sidenote: Power of Parents.]
Unlike the Roman law, English law allows parents to disinherit children
completely, if they so desire, without being under any compulsion to
leave them a part of their goods. As to legal power over children, the
mother, as such, is entitled to none, says Blackstone,[394] but only to
reverence and respect. Now, however, by the statute 2
and 3 Vict., c.
54, commonly called _Talfourd's Act_, an order may be made on petition
to the court of chancery giving mothers access to their children and, if
such children are within the age of seven years, for delivery of them to
their mother until they attain that age. But no woman who has been
convicted of adultery is entitled to the benefit of the act. The father
has legal power up to the time when his children come of age; then it
ceases. Until that time, his consent is necessary to a valid marriage;
he may receive the profit of a child's estate, but only as guardian or
trustee, and must render an account when the child attains his majority;
and he may have the benefit of his children's labour while they live
with him.
[Sidenote: Husband and wife. Pollock and Maitland, ii, 399-436.
Blackstone, i, ch 15. Bryce, pp. 818-830.]
We are ready now to observe the status of women in marriage. The
question of their legal rights in this relation offers the most
illuminating insight into their conditions in the various epochs of
history. Matrimony is a state over which the Church has always asserted
special jurisdiction. By the middle of the twelfth century it was law in
England that to it belonged this prerogative. The ecclesiastical court,
for example, pronounced in a given case whether there had been a valid
marriage or not; the temporal court took this decision as one of the
bases for determining a matter of inheritance, whether a woman was
entitled to dower, and the like. The general precepts laid down by canon
law in the case of a wife have already been noted. These rules need now
to be supplemented by an account of the position of women in marriage
under the common law.
Under the older common law the husband was very much lord of all he
surveyed and even more. An old enactment thus describes a husband's
duty[395]: "He shall treat and _govern_ the aforesaid A well and
decently, and shall not inflict nor cause to be inflicted any injury
upon the aforesaid A except in so far as he may lawfully and reasonably
do so in accordance with _the right of a husband to correct and chastise
his wife_." Blackstone, who wrote in 1763, has this to say on the
husband's power to chastise his wife: "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 intrust 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,
for whom the master or parent is also liable in some cases to answer.
But this power of correction was confined within reasonable bounds, and
the husband was prohibited from using any violence to his wife _aliter
quam ad, virum, ex causa regiminis et castigationis uxoris suae, licite
et rationabiliter pertinet_.[396] The civil law gave the husband the
same, or a larger, authority over his wife; allowing him for some
misdemeanours _flagellis et fustibus acriter verberare uxorem_ [to give
his wife a severe beating with whips and clubs]; for others, only
_modicam castigationem adhibere_ [to apply moderate correction]. But
with us in the politer reign of Charles the Second, this power of
correction began to be doubted; and a wife may now have security of the
peace against her husband, or, in return, a husband against his wife.
Yet the lower rank of people, who were always fond of the old common
law, still claim and exert their ancient privilege; and the courts of
law will still permit a husband to restrain a wife of her liberty, in
case of any gross misbehaviour." Doubtless what Mr.
Weller, Sr.,
describes as the "amiable weakness" of wife-beating was not necessarily
confined to the "lower rank." For instance, some of the courtly
gentlemen of the reign of Queen Anne were probably not averse to
exercising their old-time prerogative. Says Sir Richard Steele
(_Spectator_, 479): "I can not deny but there are Perverse Jades that
fall to Men's Lots, with whom it requires more than common Proficiency
in Philosophy to be able to live. When these are joined to men of warm
Spirits, without Temper or Learning, they are frequently corrected with
Stripes; but one of our famous Lawyers is of opinion, That this ought to
be used sparingly." The law was, indeed, even worse than might appear
from the words of Blackstone. The wife who feared unreasonable violence
could, to be sure, bind her husband to keep the peace; but she had no
action against him. A husband who killed his wife was guilty of murder,
but the wife who slew her husband was adjudged guilty of petty treason;
and whereas the man would be merely drawn and hanged, the woman, until
the reign of George III, was drawn and burnt alive.[397]
The right of a husband to restrain a wife's liberty may not be said to
have become completely obsolete until the case of _Reg.
v. Jackson in
1891_.[398] Wife-beating is still a flagrantly common offence in
England.
[Sidenote: Wife's property in marriage.]
Turning now to the question of the wife's property in marriage, we shall
be forced to believe that Blackstone was an optimist of unusual
magnitude when he wrote that the female sex was "so great a favourite of
the laws of England." Not to weary the reader by minute details, I
cannot do better than give Messrs. Pollock and Maitland's excellent
summary of the final shape taken by the common law--a glaring piece of
injustice, worthy of careful reading, and in complete accord with
Apostolic injunctions: "I. In the lands of which the wife is tenant in
fee, whether they belonged to her at the date of the marriage or came to
her during the marriage, the husband has an estate which will endure
during the marriage, and this he can alienate without her concurrence.
If a child is born of the marriage, thenceforth the husband as 'tenant
by courtesy' has an estate which will endure for the whole of his life,
and this he can alienate without the wife's concurrence.
The husband by
himself has no greater power of alienation than is here stated; he
cannot confer an estate which will endure after the end of the marriage
or (as the case may be) after his own death. The wife has during the
marriage no power to alienate her land without her husband's
concurrence. The only process by which the fee can be alienated is a
_fine_ to which both husband and wife are parties and to which she gives
her assent after a separate examination.
"II. A widow is entitled to enjoy for her life under the name of dower
one third of any land of which the husband was seised in fee at any time
during the marriage. The result of this is that during the marriage the
husband cannot alienate his own land so as to bar his wife's right of
dower, unless this is done with her concurrence, and her concurrence is
ineffectual unless the conveyance is made by _fine_."
[This
inconvenience for an unscrupulous husband was evaded in modern
conveyancy by a device of extreme ingenuity finally perfected only in
the eighteenth century. Professor James Bryce remarks (p. 820): "As this
right (i.e., the right of dower) interfered with the husband's power of
freely disposing of his own land, the lawyers at once set about to find
means of evading it, and found these partly in legal processes by which
the wife, her consent being ascertained by the courts, parted with her
right, partly by an ingenious device whereby lands could be conveyed to
a husband without the right of dower attaching to them, partly by giving
the wife a so-called jointure which barred her claim."]
"III. Our law institutes no community, even of movables, between husband
and wife. Whatever movables the wife has at the date of the marriage
become the husband's, and the husband is entitled to take possession of
and thereby to make his own whatever movables she becomes entitled to
during the marriage, and without her concurrence he can sue for all
debts that are due her. On his death, however, she becomes entitled to
all movables and debts that are outstanding, or (as the phrase goes)
have not been 'reduced into possession.' What the husband gets
possession of is simply his; he can freely dispose of it _inter vivos_
or by will. In the main, for this purpose as for other purposes, a 'term
of years' is treated as a chattel, but under an exceptional rule the
husband, though he can alienate his wife's 'chattel real' _inter vivos_,
cannot dispose of it by his will. If he has not alienated it _inter
vivos_, it will be hers if she survives him. If he survives her, he is
entitled to her 'chattels real' and is also entitled to be made the
administrator of her estate. In that capacity he has a right to whatever
movables or debts have not yet been 'reduced into possession' and, when
the debts have been paid, he keeps these goods as his own. If she dies
in his lifetime, she can have no other intestate successor. Without his
consent she can make no will, and any consent that he may have given is
revocable at any time before the will is proved.
"IV. Our common law--but we have seen that this rule is not very
old--assured no share of the husband's personality to the widow. He can,
even by his will, give all of it away from her except her necessary
clothes, and with that exception his creditors can take all of it. A
further exception, of which there is not much to be read, is made of
jewels, trinkets, and ornaments of the person, under the name of
paraphernalia. The husband may sell or give these away in his lifetime,
and even after his death they may be taken for his debts; but he cannot
give them away by will. If the husband dies during the wife's life and
dies intestate she is entitled to a third, or, if there be no living
descendant of the husband, to one half of his personality [but see the
note of Bryce, above]. But this is a case of pure intestate succession;
she only has a share of what is left after payment of her husband's
debts.
"V. During the marriage the husband is in effect liable to the whole
extent of his property for debts incurred or wrongs committed by his
wife before the marriage, also for wrongs committed during the marriage.
The action is against him and her as co-defendants. If the marriage is
dissolved by his death, she is liable, his estate is not. If the
marriage is dissolved by her death, he is liable as her administrator,
but only to the extent of the property which he takes in that
character." [Mr. Ashton, in his very interesting book, p. 31, quotes a
peculiar note from a Parish Register in the reign of Queen Anne to this
effect: "John Bridmore and Anne Sellwood, both of Chiltern all Saints,
were married October 17, 1714. The aforesaid Anne Sellwood was married
in her Smock, without any clothes or headgier on." "This is not
uncommon," remarks Mr. Ashton, "the object being, according to a vulgar
error, to exempt the husband from the payment of any debts his wife may
have contracted in her ante-nuptial condition. This error seems to have
been founded on a misconception of the law, as it is laid down 'the
husband is liable for the wife's debts, because he acquires an absolute
interest in the personal estate of his wife.' An unlearned person from
this might conclude, and not unreasonably, that if his wife had no
estate whatever he could not incur any liability."]
"VI. During the marriage the wife cannot contract on her own behalf. She
can contract as her husband's agent and has a certain power of pledging
his credit in the purchase of necessaries. At the end of the Middle Ages
it is very doubtful how far this power is to be explained by an 'implied
agency.' The tendency of more recent times has been to allow her no
power that cannot be thus explained, except in the exceptional case of
desertion."
A perusal of these laws shows that they are immensely inferior to the
Roman law, which not only gave the wife full control of her property,
but protected her from coercion and bullying on the part of the husband.
The amendment of these injustices has been very recent indeed.
Successive statutes in 1870, 1874, and 1882[399] finally abrogated the
law which gave the husband full ownership of his wife's property by the
mere act of marriage. Beginning with the year 1857, too, enlightenment
in England had progressed to such a remarkable degree that certain acts
were passed forbidding a husband to seize his wife's earnings and
neglect her[400]; and she was actually allowed to keep her own wages
after the desertion of her lord. Before that time he might desert his
wife repeatedly, and return from time to time to take away her earnings
and sell everything she had acquired. An act in 1886
(_49 and 50 Vict.,
c. 52_) gave magistrates the power to order a husband to pay his wife a
weekly sum, not exceeding two pounds, for her support and that of the
children if it appeared to the magistrates that the deserting husband
had the means of maintaining her, but was unwilling to do so. Still,
the husband can at any time terminate his desertion and force his wife
to take him back on penalty of losing all rights to such maintenance.
There was frantic opposition to all of these revolutionary enactments
and many prophets arose crying woe; but the acts finally passed and
England still lives.
[Sidenote: Divorce. Authorities as above; and Howard, ii, 3-117.]
Until the Reformation divorce was regulated by the canon law in
accordance with the principles which I have explained.
After the
Reformation the matter at once assumed a different aspect because all
Protestants agreed in denying that marriage is a sacrament. Scotland in
this as in other respects has been more liberal than England; as early
as 1573 desertion as well as adultery had become grounds for divorce.
But in England the force of the canon law continued. In Blackstone's day
there were still, as under the canon law, only two kinds of separation.
Complete dissolution of the marriage tie (_a vinculo matrimonii_) took
place only on a declaration of the Ecclesiastical Court that on account
of some canonical impediment, like consanguinity, the marriage was null
and void from the beginning. Separation "from bed and board" (_a mensa
et thoro_) simply gave the parties permission no longer to live together
and was allowed for adultery or some other grave offences, like
intolerable cruelty or a chronic disease. However, some time before
Blackstone's day it had become the habit to get a dissolution of
marriage _a vinculo matrimonii_ for adultery by Act of Parliament; but
the legal process was so tedious, minute, and expensive that only the
very rich could afford the luxury.[401] In the case of a separation _a
mensa et thoro_ alimony was allowed the wife for her support out of her
husband's estate at the discretion of the ecclesiastical judges.
The initiative in divorce by Act of Parliament was usually taken by the
husband; not until 1801 did a woman have the temerity so to assert her
rights. The fact is, ever since the dawn of history society has, with
its usual double standard of morality for men and women, insisted that
while the husband must never tolerate infidelity on the part of the
wife, the wife should bear with meekness the adulteries of her husband.
Plutarch in his _Conjugal Precepts_ so advises a wife; and this pious
frame of mind has continued down the centuries to the present day.
Devout old Jeremy Taylor in his _Holy Living_--a book which is read by
few, but praised by many--thus counsels the suffering wife[402]: "But
if, after all the fair deportments and innocent chaste compliances, the
husband be morose and ungentle, let the wife discourse thus: 'If, while
I do my duty, my husband neglects me, what will he do if I neglect him?'
And if she thinks to be separated by reason of her husband's unchaste
life, let her consider that the man will be incurably ruined, and her
rivals could wish nothing more than that they might possess him alone."
Dr. Samuel Johnson ably seconded the holy Jeremy's advice by declaring
that there is a boundless difference between the infidelity of the man
and that of the woman. In the husband's case "the man imposes no
bastards upon his wife." Therefore, "wise married women don't trouble
themselves about infidelity in their husbands."[403]
Until very recent
times not only men but also women have been unanimous in counselling
abject submission to and humble adoration of the husband. A single
example out of hundreds will serve excellently as a pattern. In 1821 a
"Lady of Distinction" writes to a "Relation Shortly after Her Marriage"
as follows[404]: "The most perfect and implicit faith in the superiority
of a husband's judgment, and the most absolute obedience to his desires,
is not only the conduct that will insure the greatest success, but will
give the most entire satisfaction. It will take from you a thousand
cares, which would have answered to no purpose; it will relieve you from
a weight of thought that would be very painful, and in no way
profitable.... It has its origin in reason, in justice, in nature, and
in the law of God.... I have told you how you may, and how people who
are married do, get a likeness of countenance; and in that I have done
it. You will understand me, that by often looking at your husband's
face, by smiling on the occasions on which he does, by frowning on those
things which make him frown, and by viewing all things in the light in
which you perceive he does, you will acquire that likeness of
countenance which it is an honour to possess, because it is a testimony
of love.... When your temper and your thoughts are formed upon those of
your husband, according to the plan which I have laid down, you will
perceive that you have no will, no pleasure, but what is also his. This
is the character the wife of prudence would be apt to assume; she would
make herself the mirror, to show, unaltered, and without aggravation,
diminution, or distortion, the thoughts, the sentiments, and the
resolutions of her husband. She would have no particular design, no
opinion, no thought, no passion, no approbation, no dislike, but what
should be conformable to his own judgment ... I would have her judgment
seem the reflecting mirror to his determination; and her form the shadow
of his body, conforming itself to his several positions, and following
it in all its movements ... I would not have you silent; nay, when
trifles are the subject, talk as much as any of them; but distinguish
when the discourse turns upon things of importance."
It is not strange, therefore, that no woman protested publicly against
a husband's infidelity until 1801. Up to 18