Women and the Law in Victorian England
‘By marriage’, according to Sir William Blackstone’s Commentaries on the Laws of England (Oxford, 1765-69, ‘the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during her marriage, or at least is incorporated or consolidated into that of her husband, under whose wing, protection and cover, she performs everything.’
This system of coverture underpinned the laws of Victorian England so far as they related to married women. In effect, a woman surrendered her legal existence on marriage. The various amendments to this position during the nineteenth century were piecemeal rather than systematic.
On marriage, the control of and income from a woman’s real property, that is, property held in the form of freehold land, passed under the common law to her husband, though he could not dispose of it without her consent. Her personal property, that is, money from earnings or investments, and personal belongings such as jewellery, passed absolutely into his control, and she could part with them only with his consent; he could, for example, overrule any bequests she made of her personal property. To evade these provisions under the common law, it was necessary to agree a marriage settlement under equity law.
The Divorce and Matrimonial Causes Act of 1857 (see below) denied the husband his right to the earnings of a wife he had deserted, and returned to a woman divorced or legally separated the property rights of a single woman. The Married Woman’s Property Act of 1870 allowed women to keep earnings or property acquired after marriage; a further Married Woman’s Property Act in 1882 allowed women to retain what they owned at the time of marriage.
The property laws before 1882 had further significant consequences, related to the fiction of the legal identity of husband and wife; a married woman could not sue or be sued — if, for example, she felt herself to be libelled, her husband could sue and claim for damages, because he was the only injured party, but she could not. Correspondingly, he became liable for her debts and contracts, and for any breaches of the law committed by her before or during their marriage since it was held that she acted only under her husband’s direction (it was this provision that made Dickens’ Mr Bumble declare that the law is as an ass). Married women held the same legal status as criminals, minors and the insane.
Post-1882 the possibility of success in the campaign for women’s suffrage was greatly improved, since one powerful argument against it — that a married woman was simply an extension of her husband, so that married men would in effect have two votes — was now made less plausible.
These ‘little ambassadors of the familiar and the expected’, as one feminist called them late in the century, were also the property of the husband. An Act of 1839 allowed an innocent wife custody of her children under the age of seven years (raised to sixteen years in 1873). The Infants Custody Act of 1886 made the welfare of the children the determining factor in deciding questions of custody, but even then the father remained during his lifetime the sole legal guardian.
Consistently with these provisions, a woman’s body was also held to belong to her husband. It was not until 1891 that a High Court ruling denied the husband the right to imprison his wife in pursuit of his conjugal rights (it was not until 1991 that a similar ruling denied him the right to rape her).
Before the Divorce and Matrimonial Causes Act of 1857 divorces could only be obtained in England through a cumbersome process involving a suit by the husband against another man for ‘criminal conversation’ (i.e., for compromising his wife, and therefore diminishing her value, so that he could claim damages), then an ecclesiastical divorce which did not allow the right of re-marriage, and finally a private Act of Parliament which separated the parties ex vinculis matrimonii (from the chains of marriage) and did allow re-marriage. The 1857 Act was designed (in effect) to allow moderately wealthy men to divorce their wives. A woman could be divorced on the simple grounds of her adultery (her adultery threatened his ability to pass his property to his male heirs), whereas a woman had to prove adultery aggravated by desertion (for two years), or by cruelty, rape, sodomy, incest or bigamy. The husband could claim damages against the adulterous third party, the wife could not. There was no provision for consensual divorce, so (for example) the divorce granted Jude and Sue in Jude the Obscure would have been invalid since they were not in fact adulterous; and they would have been in breach of the law in allowing it to be supposed that they were.
This was the law until 1923, when the grounds of divorce were made the same for both sexes. Until Legal Aid was available after 1949 divorce remained expensive, and the less well-to-do had to make use of the Matrimonial Causes Act of 1878 which allowed a less costly judicial separation but without the right of re- marriage.
The Contagious Diseases Acts (1864, 1866, 1869) were introduced in order to protect members of the home forces from sexually transmitted diseases. In their final form, they provided that where a woman was believed to be acting as a ‘common prostitute’ (a term not defined in the Act) within ten miles of one of eighteen specified naval and garrison towns, she could be reported to a magistrate and obliged to attend for inspection at hospitals (‘Lock ups’) created for the purpose, If found to be diseased, she could be detained for up to nine months for treatment; refusal to attend could be met with forcible examination (labelled ‘instrumental rape’ by opponents of the Acts) or by imprisonment. The Acts were repealed in 1886, following a campaign led by Josephine Butler.
Incident to this campaign was another, to raise the age of consent from 12 to 13 in 1875, and then to 16 in 1885. The Criminal Law Amendment Act of 1885 followed the exposure by the journalist W. T. Stead of a trade in child prostitution (to prove the trade took place, Stead bought a child of 13 and took her abroad — in fact to a safe hostel — but was himself sent to prison). The facts about male sexuality disclosed by the campaigns of Josephine Butler and Stead, among others, helped to radicalise a number of women, though it should be remembered that most of those working in both causes were less concerned with liberation than with moral rearmament. The new law offered coercion as well as protection; it was under this legislation that Oscar Wilde was sentenced a decade later, and there was pressure for the age of consent to be raised to twenty-one.
Campaigns to improve women’s education continued throughout the century, strengthened by the imbalance of numbers between men and women (there were roughly half a million more women than men). Queen’s and Bedford Colleges at London University offered women education at the end of the 1840s, colleges for women at Oxford and Cambridge began in the 1860s and 1870s, while the Girls’ Public Day School Trust, Cheltenham’s Ladies College and other new institutions sought to improve the intellectual training offered to girls in their teens. Resistance to these developments came especially from the medical profession, who argued that the physical demands of menstruation and the intellectual demands of study were incompatible, and that educated women would become necessarily the mothers of a ‘puny, enfeebled, and sickly race’. Key texts in this debate are to be found in the Fortnightly Review for 1874, by Henry Maudsley and Elizabeth Garret Anderson (the first woman doctor), under the title ‘Sex in Mind and Education’.