In the previous post, I promised to provide some excerpts from the remarkable book, Marriage, As It Was, As It Is, And As It Should Be: A Plea For Reform, written by Annie Besant in 1878. This book deals with British law regarding the status of the married women, but it must be remembered that American law closely followed British common law in this area, and it took quite some time for reforms to take place in either country.
If the topic of married women's rights in the 19th century interests you, I highly recommend this book. It's about 37 pages long, and you can download the text version from the link below. Don't waste money on "new" editions advertised on Amazon and Ebay; these are just overpriced reprints made from scans available for free on Archive.org. Needless to say, I only have room here for some very select snippets!
The author begins by noting that as of the 18th century, "...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... have 'natural and imprescriptible rights... these rights are—liberty, property, safety, and resistance of tyranny.' ...to deny these rights to women, is either to deny them to humanity... or to deny that women form a part of humanity."
However, as she notes by quoting Mrs. John Stuart Mill (Enfranchisement of Women), even men still lacked certain rights by the late 19th century. The law "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?"
The key difference between the rights of men and women "is... 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." Such laws weren't new to the 19th century; they came to England from ancient Rome. "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... 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."
In the 19th century, this meant that "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. Blackstone 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 couvert.'"
Since husband and wife are the same person, a husband "cannot covenant or contract with his wife," as this would be, essentially, contracting with himself. Further, "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."
This particular element of the law had some surprising consequences. Being one person, a husband and wife could not give evidence for or against one another in a criminal case. If, for example, a husband were indicted along with several other people for a particular crime, and the wife was the only person who could provide testimony against them, the husband and all the others would be acquitted. Conversely, if a wife was the only person able to testify on behalf of her husband, in support of his statement, "that statement falls to the ground," as her testimony would mean nothing.
The law could have unexpected consequences for the husband as well. "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.' The wife's conviction was "held wrong," because the judges concluded that for an offense to be committed, it had to have been committed against a third person, "not one identified with herself."
A husband was also liable for any misdoings of his wife, such as slander, libel, trespass, assault and battery, etc. It did not matter of husband and wife were separated; any action against the wife would become an action against the husband, even if he knew nothing about the event. "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..."
A married woman had no protection for life, limb, or reputation. "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). Even though the law "holds it to be felony to force even a concubine or harlot," the law did not recognize the notion of conjugal rape; "no force, no violence, on the husband's part in conjugal relations is regarded as possible by the law..." It's worth pointing out that conjugal rape was not outlawed until 1991 in the UK and 1993 in the US.
Similarly, by common law, the husband could inflict corporal punishment upon 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 rationale here, according to Blackstone, is that since a husband is responsible for any misbehavior of the wife, "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."
A husband also had the right 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 (Broom)." (See the discussion of this topic in the previous post.)
The issue of property ownership has been covered in the second post of this series. "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"). ... A feme sole may own real or personal estate, buy, sell, give, contract, sue, and be sued... it is marriage that, like felony and insanity, destroys her capability as proprietor." In 1868, Mr. Lowe, Chancellor of the Exchequer noted that this made the penalty for marriage, for a woman, equivalent to the penalty for high treason – that is, confiscation of all her property and possessions.
The wife's lack of legal existence often made it difficult for a married women to find work. "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 women can make no contract which is legally binding." A woman also had little recourse if someone stole from her, because she was not the legal owner of the goods stolen. The stolen goods were the property of the husband, so unless the thief were indicted for stealing from the husband, he must be acquitted. On the other hand, if a wife were to commit an act of burglary, in the company of her husband or by his coercion, she would not be answerable for the crime.
Besant also discusses the mother's lack of rights to her children, pointing out that an unwed mother actually had more rights than a married woman. This, too, has been discussed in a previous post. "She has no redress; she may apply to Chancery for access to them at stated times, but even this is a matter of favour, not of right." Children were brought up in the religion of the father, whatever the creed of the mother. "People talk of maternal love, and of woman's sphere, of her duty in the home, of her work for her babes, but the law has no reverence for the tie between mother and child, and ignores every claim of the mother who is also a wife." An unmarried mother, by contrast, had absolute custody rights, the primary disadvantage being to the children themselves: "the children proceeding from an unlegalised union have not the same rights as those born in legal wedlock, do not inherit as of right, and have no legal name."
Besant offers an excellent summation, telling her readers, "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 [a writer in Westminster Review, 1874), '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.'"
I would like to say that this concludes Besant's excellent treatise, but it actually goes on quite a bit longer, covering the topic of divorce and the failings of divorce law, and proposing that until Parliament corrects the injustices inflicted on women by marriage, perhaps the best solution would be for men and women to join in a non-legal form of marriage, so that neither lose their rights. It doesn't appear that this suggestion was taken seriously by many – but it would only be another four years before the Married Women's Property Act of 1882 swept away the law of coverture, and married women, for the first time in centuries of British history, became legal individuals in their own right.
Find Out More:
- Marriage, As It Was, As It Is, And As It Should Be: A Plea For Reform, by Annie Besant (London, 1878)
- https://en.wikisource.org/wiki/Marriage,_As_It_Was,_As_It_Is,_And_As_It_Should_Be:_A_Plea_For_Reform
- Here you can download the complete book in text format.
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