WHAT KIND OF A CONTRACT IS MARRIAGE? MARRIED WOMEN’S PROPERTY, THE SEXUAL DOUBLE STANDARD, AND THE DIVORCE ACT OF 1857
In 1855, when Caroline Norton painted this picture of husband and wife as wild beasts locked in deadly struggle, she had endured more than twenty years of an extremely painful and rancorous marriage. In the 1830s her husband, George Norton, had publicly accused the prime minister, Lord Melbourne, of adultery with his wife, and Caroline had gone to Court to try to get custody of their children. In 1854 creditors suing the Nortons for payment of debts exposed the bitter financial disputes that plagued their marriage. The prominent trials involving the Nortons’ rights as husband and wife exposed the violence and personal unhappiness of their relationship to public scrutiny and prompted Caroline to publish biting pamphlets condemning the English marriage laws, which she regarded as partly responsible for her troubles. In particular, she denounced the obliteration under the common law of a woman’s legal personality upon marriage, which made it impossible for a wife to hold property in her own name. She also condemned a proposed divorce law that would have lent statutory sanction to the sexual double standard by making it possible for husbands to divorce their wives, but not wives their husbands. These stipulations were, of course, related, for both implied that a wife was herself the “property” of her husband, since he could claim her earnings and her body when she could not make similar claims upon him. Newspaper accounts of the Nortons’ trial as well as Caroline Norton’s pamphlets provided dramatic lessons in the laws governing marriage to the English reading public. They also gave impetus to the first organized feminist effort to challenge the laws governing marriage. A brief recital of the Nortons’ history may instruct readers in the twentieth century as much as it did the people of their own day.
THE MULTIPLE INJUSTICES OF MARRIAGE LAW: THE CASE OF CAROLINE NORTON
Caroline Sheridan Norton, born in 1808, was the granddaughter of Richard Brinsley Sheridan, the renowned playwright, and the daughter of Henrietta Callander and Thomas Sheridan.1
When Caroline was five, her father, who was in poor health, was offered a post as colonial secretary at the Cape of Good Hope. His wife and eldest daughter accompanied him, while Caroline and her younger sister stayed with aunts in Scotland. Three years later Thomas Sheridan died. His widow returned to England and was given a “grace and favor” apartment at Hampton Court, where Caroline, her sisters and her brother grew up. At age fifteen Caroline was sent to a small school in Surrey. While there she visited Wonersh Park, the home of Lord Grantly, and met his younger brother and heir, George Norton. George was infatuated with Caroline, and in 1827, when she was nineteen and he twenty-six, they married.
By all accounts Caroline and George were profoundly mismatched. He was not very bright and had few social graces; she was quick-witted, a dazzling beauty, and loved to be in society. He had a fearsome temper, which was exacerbated by Caroline’s lack of subservience and her biting wit. He was not wealthy, and resented his need for the money that Caroline’s growing career as a poet and novelist brought them. George’s temper led on occasion to outbursts of brutal violence, especially when he was drunk, and he and his wife separated several times. In large part their mutual love of their three sons kept them together.
In 1836 the fragile truce in the Norton household was shattered. While Caroline was on a visit to her sister, George had the children taken off to an undisclosed location, and barred the house to Caroline. He then announced that, unless she agreed to a separation, he was going to sue her for divorce on the grounds of alienation of affection by Lord Melbourne. The terms George proposed were that the children would live with him, Caroline would receive no allowance from him, and she would live with her brother. Not surprisingly, Caroline found these terms unacceptable.
George then began his divorce action. His first step was to sue Lord Melbourne for “criminal conversation” with Caroline. In a case of criminal conversation, a husband charged another man with adultery with his wife, and, if the defendant was found guilty, the husband recovered “damages.” The action for criminal conversation could only be initiated by men, not women. It reflected the notion that a husband in some manner owned his wife’s affection and sexual services, that she was his property, but a wife did not have a similar legal claim on her husband. In addition to providing a monetary reward, a successful action for criminal conversation was a prerequisite for entering a suit for a parliamentary divorce, the only way to end a marriage other than by ecclesiastical annulment.2
The jury dismissed George Norton’s case against Lord Melbourne without ever leaving the jury box. Several commentators have speculated that George entered the suit not as a preliminary to divorcing his wife but in order to extract money from Lord Melbourne. Whatever George’s intentions, once the suit for criminal conversation was defeated, he could proceed no further in any divorce action against Caroline. The two could not live together, and were indeed bitter enemies, but they could not legally end their marriage.
The case infuriated Caroline. Despite the jury’s dismissal of the charges, her reputation was badly damaged. More than that, she was incensed by the legal rule that wives were prohibited from testifying in their own defense in such actions. A suit for criminal conversation was a civil action by the husband against his wife’s alleged lover, and the burden of proof was on the husband to prove the defendant’s guilt. The rule barring a wife from giving evidence in court increased the sense that this was an action between men for alleged damage to a husband’s “property.” All kinds of things fatal to a woman’s reputation could be alleged with no possibility of rebuttal on her part. Even if a defendant was legally declared “not guilty,” no wife was considered “innocent” after such a proceeding.
The trial for criminal conversation was quickly followed by Caroline’s discovery that the law could not help her to be reunited with her children. Under the common law fathers had absolute right to custody of their children. Repeated efforts to gain access to her children availed Caroline nothing. So great was her distress, and so clear was the legal rule that kept her children from her, that Caroline set out to change the law. She induced Thomas Talfourd, a serjeant-at-law and Member of Parliament, to introduce a bill to give mothers the right to appeal to the Court of Chancery for the custody of their children under seven years of age. She then drafted A Plain Letter to the Lord Chancellor on the Infant Custody Bill,
a plea for the bill’s passage. Parliament passed the Infant Custody Act of 1839 [2 & 3 Vict., c. 54], which allowed the Court of Chancery to award mothers custody of their children under the age of seven and access to their children under sixteen.3
This was an important first step towards obtaining maternal custody rights (it and later efforts are examined in chapter 5
). But it took a tragedy as well as the threat of a suit in Chancery to win Caroline access to her own children; her youngest son was fatally injured in a riding accident and died before she could reach him. After that George allowed her regular access to the boys.
Some twelve years elapsed before George Norton’s greed and the state of English marriage law again brought the Nortons into court. In 1848 George Norton was short of funds, and Caroline agreed to allow him to raise money by a mortgage on trust property that had been settled on her and her children. In exchange he signed a separation deed (a financial document, not a decree of separation from an ecclesiastical court) giving her an income of £500 and limiting his responsibility for her debts.4
That year, Lord Melbourne died, stipulating in his will that Caroline was to continue to receive some financial support from his estate. In 1851 Mrs. Sheridan died and left Caroline £480 yearly, secured to her alone. Such trusts and bequests, explicitly secured to a married woman alone and known as her “separate estate,” were the means of avoiding the common law rule that a married woman’s property belonged to her husband. The courts of equity, not of common law, dealt with married women’s separate estates. A wife with a separate estate could deal with that
property as if she were un
married, or what the law called a feme sole.5
George, who inherited from Mrs. Sheridan’s estate the life-interest on Caroline’s portion from her father, declared that since Caroline now had additional income he would reduce the allowance agreed to in the separation deed. Caroline retaliated by referring all her creditors to her husband. George refused to pay these debts, and a carriage repairman whom Caroline had not paid sued him in 1853.
The case turned on the question of the validity of the deed of separation. Caroline had received poor legal advice when she signed the deed, because well-established common law rules based on the doctrine of coverture stipulated that a married woman was incapable of signing any contract without being joined by her husband as co-signer. Although she was living apart from George, Caroline Norton was still a married woman, and was thus under the strictures of coverture. Deprived of any legal remedy for his chicanery over their separation deed in 1853, Caroline Norton privately circulated her English Laws for Women in the Nineteenth Century (1854), an impassioned defense of her own activities and an indictment of the laws governing married women’s property rights. If she could not win her case in the English courts of law, she would appeal directly to public opinion and the verdict of history.
I propose to take a lease; and am told, that being ‘non-existent’ in law, my signature is worthless. ... I am informed, that, being ‘non-existent’ in law, it would be a mere farce my attempting to make a will.... I accept Mr. Norton’s terms [for separation] after demanding others . . . and I am informed, that being ‘non-existent’ in law, I have signed that which binds him to nothing.
Norton had no complaint, she said, against the law’s treatment of married persons as “one” when they lived “under a common roof,” but when such rules were applied to a husband and wife who were living apart, the results were “unjust, unfit, and unnatural, and . . . productive only of social disorder and scandalous struggle.” What was needed, according to Norton, was that “failing her natural protector, the law should be able to protect; that some direct court of appeal should exist, in which . . . the circumstances of each case should guide its result, and the LAW
exercise remedial control.”6
Caroline Norton repeatedly spoke of women as being in need of “protection”: “What I write is written in no spirit of rebellion; it puts forward no absurd claim of equality; it is simply an appeal for protection.” She found the language of “women’s rights” and sexual “equality” anathema: “I, for one (I, with millions more), believe in the natural superiority of men, as I do in t...