Women and Marriage in Nineteenth-Century England

Mrs Joan Perkin, Joan Perkin

• Publisher: Routledge
• Year: 2002
• Print ISBN: 9781138009011
• eBook ISBN: 9781134985630
• Topic: History
• Subtopic: Modern History
• Index: History

The 'bonds of matrimony' describes with cruel precision the social and political status of married women in the nineteenth century. Women of all classes had only the most limited rights of possession in their own bodies and property yet, as this remarkable book shows, women of all classes found room to manoeuvre within the narrow limits imposed on them. Upper-class women frequently circumvented the onerous limitations of the law, while middle-class women sought through reform to change their legal status. For working-class women, such legal changes were irrelevant, but they too found ways to ameliorate their position. Joan Perkin demonstrates clearly in this outstanding book, full of human insights, that women were not content to remain inferior or subservient to men.

Chapter 1 Women and The Law

DOI: 10.4324/9780203401958-2

The Common Law of England in 1854

To get a clear picture of the Common Law of England concerning married women down to the mid-Victorian Age, we cannot do better than start with the Brief Summary, in Plain Language, of the Most Important Laws of England concerning Women (for brevity, this will be referred to as Summary) published in 1854 by Barbara Leigh Smith – later Barbara Bodichon – one of the founders of Girton College, Cambridge. She was one of the five illegitimate (but openly acknowledged) children of a Radical Member of Parliament who so believed in the right of women to equal treatment that he gave his daughters similar independent incomes to those he gave to his sons; on their twenty-first birthdays each received £300 a year to use as s/he pleased. In the 1850s this was a substantial income for an unmarried person.

Barbara Leigh Smith was moved to write her pamphlet by cases such as that of Caroline Norton, who (as we shall see later in the chapter) experienced most of the rigours of the law as it could apply to married women, and who challenged the law because of her own tribulations. Barbara Leigh Smith herself had a less personal interest, as she was unmarried at the time and in any case had a father who was likely to know how to protect her interests if and when she did marry. In her pamphlet she decided to let the bare facts speak for themselves. Her belief that change could be accomplished was enhanced by the fact that in the United States of America between 1839 and 1850 most states had passed some legislation permitting married women to own property (though they were unlikely to have legal rights to their own earnings or to custody of children), and she drew attention to these changes. However, as she pointed out in the Introduction, English laws have never been codified, and it was often very difficult to know what the law really was. There were three sources for it: Acts of Parliament, or Statute Law; reported decisions of judges on actual cases, known as case-law or judge-made law; and a limited number of customs recognised by the courts, called customary or unwritten law. Statute Law was distinguished from Common Law, which embraced both judge-made and customary law. (In the early days, Common Law was handed down by word of mouth from one generation of lawyers to another, rather than being written down, as now, in volumes of Law Reports.) Most of the inequities and disabilities of women sprang from the ancient Common Law rather than from the Statute Book; and marriage laws reflected rather than caused the traditional subjection of women.

When her Summary of the laws concerning women was published in 1854 very little had changed in Common Law since feudal times. First, it set out the legal condition of an umarried woman, who had the same rights to property and to protection from the laws, and the obligation to pay the same taxes to the state as a man. It then considered differences between the legal statuses of single and married women. It is interesting to lay out the differences side by side (information is taken from the 1869 edition of the Summary):

A Single Woman	A Married Woman
1. Could act as agent for another person, and as an agent, execute delegated authority.	1. Could so act only if her husband did not dissent.
2. Could be invested with a trust (i.e. act as a trustee).	2. Could be a trustee, but her husband’s name had always to be joined with hers, and his assent given to everything she did as trustee.
3. Could act as executrix under a will.	3. Could not accept an executorship without her husband’s consent.
4. Could act as administratrix of the personal property of deceased next of kin.	4. Could not so act without the consent of her husband.

The pamphlet then looked at the laws concerning married women, and among other matters dealt with the following:

Prohibitions on whom one could marry

A widower could not marry his deceased wife’s sister.

A widow could not marry her deceased husband’s brother.

A widower could not marry his niece by marriage.

A widower could not marry his stepdaughter.

A widower could not marry his aunt by marriage.

Consanguinity or affinity, where the children were illegitimate, was equally an impediment.

A lunatic or idiot could not lawfully contract a marriage (except during a lucid interval); insanity after marriage did not invalidate it.

Consent to marriage

It was a punishable offence for a person under 21 years of age to marry without the consent of the father or guardians. The consent of the mother was not necessary if there was a father, or unless the mother was the guardian.

This meant that heiresses could not make runaway marriages when they were under age. Mrs Arbuthnot reported in her Journal for 1826 that ‘Lancaster was as full as it could hold with people collected to hear the trial of Mr Wakefield for running away with Miss Turner’ (Arbuthnot, 1950). Edward Gibbon Wakefield had in 1816 made a runaway match with an heiress, and after his wife’s death he ‘beguiled from school’ Ellen Turner, daughter of a wealthy Cheshire manufacturer, whom he married at Gretna Green. Though he did not consummate the marriage, he took his bride to Calais, where they were overtaken by the Turner parents. He returned to England, where his brother had already been arrested for complicity in the affair, and both were sentenced to three years’ imprisonment, during which time his marriage was annulled by a special Act of Parliament.

Bigamy

A second marriage, while a husband or wife was living, was absolutely void, and except under certain circumstances (such as ignorance of the fact that the former spouse was alive), was a felony, punishable by imprisonment or penal servitude.

Breach of promise

An agreement to marry was a contract of betrothal, and either party could bring an action under Common Law if the contract was not completed. When a woman accepted betrothal, she could not thereafter dispose of or give away her property without the consent of her betrothed.

A married woman had no legal existence

A man and wife were one person in law; her existence was, as it were, absorbed in that of her husband; she lived under his protection or cover, and her condition was called coverture.

A wife's personal property vested in her husband

A wife’s personal property before marriage (such as stock, shares, money in hand, money at the bank, jewels, household goods, clothes, etc.), though not her freehold land, became her husband’s absolutely, unless settled in trust for her. The husband could assign or dispose of it at his pleasure, whether he and his wife lived together or not.

Husband took chattels real

Chattels real (i.e. leasehold and other estates held during a term of years, or an advowson, the next presentation to a church living, etc.) were personal property and became the husband’s if he claimed them. If the wife survived him, she resumed them. Her choses in action (property sub judice in the courts) could be sued for and obtained by her husband; but if he failed to do so, they reverted to her on his death.

Indictment for theft

When a wife’s property was stolen, as it legally belonged to the husband it had to be laid as his in the indictment.

Mrs Grote, wife of the banker and historian, was one day robbed of her watch and purse. When she appeared in court to give evidence, she was astonished to hear the purse described as belonging to Mr Grote, and on having the legal reason for this explained to her, she became so indignant that she rushed off to join the Women’s Movement. A similar thing happened later in the century to Millicent Fawcett, wife of an MP, and she became a leader of the women’s suffrage movement.

Equity

While the Common Law gave the whole of a wife’s personal property to her husband, the Courts of Equity, when he proceeded to recover property in right of his wife, obliged him to make a settlement of some portion of it upon her, as long as she was virtuous and unprovided for.

A wife's debts

A husband was liable for the cost of such goods as he allowed his wife, as his agent, to order; if a wife ordered goods without the knowledge of her husband, he was obliged to pay for them only if the court considered them domestic necessities for a family of their social level.

Wife's right to support

Neither the Courts of Common Law nor of Equity could oblige a man to support his wife. But a wife whose husband without valid reason refused to support her could rent lodgings, take up goods, etc. suitable to her station, and the creditors could compel the husband to pay. If a wife became chargeable on the poor rates, as a result of having to enter the workhouse, the Poor Law authorities could sue the husband for the cost.

Husband's power over wife's real property

husband had the possession and usufruct of his wife’s freehold property; if she died without children the property went to her heirs; if there was a child of the marriage the husband held possession until his death, when it passed to her heirs; if she survived her husband, her freeholds reverted to her.

A married woman's earnings

Money earned by a married woman belonged absolutely to her husband; her receipt for the earnings was not legal, and her husband could claim the money notwithstanding such payment.

A wife's will

By permission of her husband, a wife could make a will of her personal property; but he could revoke his leave at any time before probate (i.e. the exhibiting and proving of a Will in Court).

A mother's rights over children

Thee legal custody of children belonged to the father. During the lifetime of a sane father, the mother had no rights over her children (except limited power over young infants from 1839) and the father could take them from her and dispose of them as he thought fit. If the parents were legally separated, right of custody of the children belonged to the father.

Responsibility of a wife

A married woman could not sue or be sued for contracts, nor enter into contracts except as the agent of her husband. Neither her word nor her deed was binding in law, and persons giving her credit had no remedy against her. (There were some exceptions, as where she contracted debts upon estates settled to her separate use, or where a wife carried on a trade separately according to the custom of London.)

Responsibility of husband for wife's debts

A husband was liable for his wife’s debts contracted before marriage, and also for her breaches of trust committed before marriage.

Witnesses

Neither a husband nor a wife could be witnesses against or for the other in criminal cases, not even after divorce.

Wife could not bring actions

A wife could not bring actions in court unless the husband’s name was joined with hers.

A married woman apprentice

A married woman could not be bound apprentice except with the permission of her husband, who would in the indenture stand in the same position to her as a father or guardian to an apprentice who was a minor.

The Summary discussed only briefly precautions that could be taken concerning the property of married women, but it is now intended to look at this important area of law in detail.

Equity

Common Law was only one branch of English law. As Sir William Blackstone had casually remarked in his famous Commentaries on the Laws of England, over and above this law was Equity, ‘frequently called in to assist, to moderate, and to explain other laws’. Equity enforced trusts and other understandings that could assure to married women rights of property denied to them under Common Law. (In addition, there were private practices and agreements between men and women, to benefit the wife, which never came to the notice of the courts.) It was open to any father, or any friend or relative of a married woman, who wished to give her property, to safeguard her rights by the creation of a trust or other means, which agreements and trusts would be enforced by the court of Equity. It was therefore more accurately the case, in practice, that in the absence of valid agreements and actions to the contrary a husband could assert his Common Law rights over a wife’s property. The difference between Common Law and Equity was laid out clearly in a Report of the Personal Laws Committee (of the Law Amendment Society) on the Laws relating to the Property of Married Women in 1856 (reproduced in the Westminster Review, New Series, vol. X, no. 11) as follows:

LAW	EQUITY
1. By the Common Law, the wife has no property of her own; her personal estate absolutely, and her real estate during coverture, are her husband’s.	1. Every kind or property, including estates in fee simple, and chattels personal, may be subject to a trust for the wife’s separate use, which will be supported in Equity. She may dispose of such property as if she were a feme sole. She may dispose of her savings as of the principal.
2. By the Common Law, the wife has no separate power of contracting. She can neither sue nor be sued.	2. Equity allows a married woman to sue wherever she has a clear right. She may even sue her husband, when there is no other way of asserting her right against him. Being considered a feme sole in respect of her property, she may be sued on her own contract with respect to such property.
3. Marriage is an absolute gift to the husband of the goods, etc. of which the wife was naturally possessed at the time of marriage, and of such other goods and personal chattels as come to her during marriage.	3. If land or personalty be left to a married woman, for her separate use, even without the intervention of trustees, Equity secures such property for her separate use.
4. If a husband obtain a judgment for a debt due to his wife at law, he is entitled to the whole fund.	4. If it is necessary to have recourse to equity. Equity will compel him to secure a provision for his wife out of the fund.
5. So with respect to a legacy, the husband may appropriate the whole, if the executor pays it to him.	5. Equity will compel a settlement in such a case.
6. A woman, by law, cannot dispose of her property, nor make a will without the concurrence of her husband.	6. She may in Equity.
7. If a wife carries on a separate trade, even with her husband’s consent, he is entitled to all the profits.	7. Equity gives the profits to the wife, if the trade is carried on out of her separate estate.
8. Deeds of separation are not valid at law.	8. In Equity, it may be considered as at present settled, that such deeds … are valid.
9. A husband cannot give or grant any estate to his wife, either in possession, reversion, or remainder, though an exception under the Statute of Uses has been introduced.	9. Although gifts of property by the husband and the wife are … void in law, yet they will be supported in Equity.

The Report pointed out that there were two different sets of courts, the Common Law courts and...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Dedication
• Copyright Page
• Table of Contents
• Introduction
• 1 Women and the Law
• I Marriage à la Mode
• II Respectables and Roughs
• III The Gilded Cage
• Conclusion
• Bibliography
• Index