A Short History of Women's Rights Part 15

CHAPTER VII

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 inst.i.tutions 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 pa.s.sing 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 s.e.x 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 ent.i.tled 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 pet.i.tion 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 ent.i.tled 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 a.s.serted 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, p.r.o.nounced 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 ent.i.tled 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 chastis.e.m.e.nt, 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 s.e.x 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 a.s.sent after a separate examination.

"II. A widow is ent.i.tled 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 inst.i.tutes 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 ent.i.tled to take possession of and thereby to make his own whatever movables she becomes ent.i.tled to during the marriage, and without her concurrence he can sue for all debts that are due her. On his death, however, she becomes ent.i.tled 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 ent.i.tled to her 'chattels real' and is also ent.i.tled 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--a.s.sured 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 ent.i.tled 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 owners.h.i.+p 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 pa.s.sed 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 pa.s.sed 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 a.s.sumed 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 a.s.sert 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 b.a.s.t.a.r.ds 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 G.o.d.... 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 a.s.sume; 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 pa.s.sion, 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 1840 there were but three cases of a woman's taking the initiative in divorce, namely, in 1801, 1831, and 1840; and in each case the man's adultery was aggravated by other offences. In two other suits the Lords rejected the pet.i.tion of the wife, although the misconduct of the husband was clearly proved. But redress was still by the elaborate machinery of Act of Parliament and hence a luxury only for the wealthy until 1857, when a special Court for Divorce and Matrimonial Causes was established.[405] Nevertheless, the law as it stands to-day is not of a character to excite admiration or to prove the existence of the proverbial "British Fair Play." A husband can obtain a divorce upon proof of his wife's infidelity; but the wife can get it only by proving, in addition to the husband's adultery, either that it was aggravated by bigamy or incest or that it was accompanied by cruelty or by two years' desertion. Misconduct by the husband bars him from obtaining a divorce. The court is empowered to regulate at its discretion the property rights of divorced people and the custody of the children.[406] All attempts have failed to make the law recognise that the misconduct of the husband shall be regarded equally as culpable as the wife's.

[Sidenote: Rape and the age of legal consent.]

We may pause a moment to glance at the provisions made by the criminal law for protecting women. The offence that most closely touches women is rape. The punishment of this in Blackstone's day was death[407]; but in the next century the death penalty was repealed and transportation for life subst.i.tuted.[408] The saddest blot on a presumably Christian civilisation connected with this matter is the so-called "age of legal consent." Under the older Common Law this was _ten_ or _twelve;_ in 1885 it was _thirteen_, at which period a girl was supposed to be at an age to know what she was doing. But in the year 1885 Mr. Stead told the London public very plainly those hideous truths about crimes against young girls which everybody knew very well had been going on for centuries, but which no one ever before had dared to a.s.sert. The result was that Parliament raised the "age of legal consent" to sixteen, where it now stands.[409] The idea that any girl of this age is sufficiently mature to know what she is doing by consenting to the l.u.s.t of scoundrels is a fine commentary on the acuteness of the legal intellect and the high moral convictions of legislators.

[Sidenote: Women's rights to an education.]

The rights of women to a higher education is distinctly a movement of the last half of the nineteenth century. It is true that throughout history there are many examples of remarkably well-educated women--Lady Jane Grey, for example, or Queen Elizabeth, or Olympia Morata, in Italy, she who in the golden period of the Renaissance became a professor at sixteen and wrote dialogues in Greek after the manner of Plato. But on looking closely into these instances we shall find first that these ladies were of n.o.ble rank and only thanks to their lofty position had access to knowledge; and secondly that they stand out as isolated cases--the great ma.s.ses of women never dreamed beyond the traditional Kleider, Kuche, Kinder, and Kirche. That an elementary education, consisting of reading, writing, and simple arithmetic, was offered them freely by hospital, monastery, and the like schools even as early as Chaucer--this we know; nevertheless, beyond that they were not supposed to aspire. So very recently, indeed, have women secured the rights to a higher education that many thousands to-day can easily recall the intensely bitter attacks which were directed against colleges like Wellesley and Bryn Mawr in their inception. Until the middle of the nineteenth century the whole education--what there was of it--of a girl was arranged primarily with a view to capture a husband and, once having him secure, to be his loving slave, to dwell with adoring rapture on his superior learning, and to be humbly grateful if her liege deigned from time to time to throw his spouse some sc.r.a.ps of knowledge which might be safely administered without danger of making her think for herself.

These facts no one can well deny; but a few instances of prevalent opinion, in addition to those which I have already quoted, will afford the amus.e.m.e.nt of concrete examples.

Mrs. Chapone, in the eighteenth century, advised her niece to avoid the study of cla.s.sics and science lest she "excite envy in one s.e.x and jealousy in the other." Lady Mary Wortley Montagu laments thus: "There is hardly a creature in the world more despicable and more liable to universal ridicule than a learned woman," and "folly is reckoned so much our proper sphere, we are sooner pardoned any excesses of that than the least pretensions to reading and good sense." Pursuant to the prevailing sentiment on the education of women, the subjects which they studied and the books which they were allowed to read were carefully regulated. As to their reading, it was confined to romantic tales whereof the exceeding insipidity could not awaken any symptom of intelligence. Lyly dedicated his _Euphues_ to the "Ladies and Gentlewomen of England" and Sidney's _Arcadia_ owed its vast success to its female readers.

The subjects studied followed the orthodox views. Beginning with the reign of Queen Anne boarding-schools for girls became very numerous. At these schools "young Gentlewomen" were "soberly educated" and "taught all sorts of learning fit for young Gentlewomen." The "learning fit for young Gentlewomen" comprised "the Needle, Dancing, and the French tongue; a little Music on the Harpsichord or Spinet, to read, write, and cast accounts in a small way." Dancing was the all-important study, since this was the surest route to their Promised Land, matrimony. The study of French consisted in learning parrot-like a modic.u.m of that language p.r.o.nounced according to the fancy of the speaker. As, however, the young beau probably did not know any more himself, the end justified the means. Studies like history, when pursued, were taken in h.o.m.oeopathic doses from small compendiums; and it was adequate to know that Charlemagne lived somewhere in Europe about a thousand or so years ago. Yet even this was rather advanced work and exposed the woman to be d.a.m.ned by the report that she was educated. Ability to cook was not despised and pastry schools were not uncommon. Thus in the time of Queen Anne appears this: "To all Young Ladies: at Edw. Kidder's Pastry School in little Lincoln's Inn Fields are taught all Sorts of Pastry and Cookery, Dutch hollow works, and b.u.t.ter Works," etc.

At last in the first decades of the nineteenth century the civilised world began slowly to take some thought of women's higher education and to wake up to the fact that because a certain system has been in vogue since created man does not necessarily mean that it is the right one; a very heretical and revolutionary idea, which has always been and still is ably opposed by that great host of people who have steadily maintained that when men and women once begin to think for themselves society must inevitably run to ruin. In 1843 there was established a certain Governesses' Benevolent Inst.i.tution. This was in its inception a society to afford relief to governesses, i.e., women engaged in tutoring, who might be temporarily in straits, and to raise annuities for those who were past doing work. Obviously this would suggest the question of what a competent governess was; and this in turn led to the demand for a diploma as a warrant of efficiency. That called attention to the extreme ignorance of the members of the profession; and it was soon felt that cla.s.ses of instruction were needed. A sum of money was accordingly collected in 1846 and given the Inst.i.tution for that purpose. Some eminent professors of King's College volunteered to lecture; and so, on a small scale to be sure, began what is now Queen's College, the first college for women in England, incorporated by Royal Charter in 1853. In 1849 Bedford College for women had been founded in London through the unselfish labours of Mrs. Reid; but it did not receive its charter until 1869. Within a decade Cheltenham, Girton, Newnham, and other colleges for women had arisen. Eight of the ten men's universities of Great Britain now allow examinations and degrees to women also; Oxford and Cambridge do not.