1857 Matrimonial Causes Act
Ernest Sackville Turner has argued that the "Common Law of England, in the early part of the 19th century the nineteenth century, granted a wife fewer rights than had been accorded to under the later Roman law, and hardly more than had been conceded to an African slave before emancipation... The husband... owned her body, her property, her savings, her personal jewels and her income, whether they lived together or separately." Turner goes on to point out, that the husband "could legally support his mistress on the earnings of his wife". (1)
John Stuart Mill, the Radical MP for Westminster, was one of the few men who was willing to speak up for women: "She can acquire no property, but for the husband: the instant it becomes hers, even if by inheritance, it becomes ipso facto his... This is her legal state. And from this state she has no means to withdraw herself. If she leaves her husband she can take nothing with her, neither her children nor anything which is rightfully her own. If he chooses he can compel her to return by law, or by physical force; or he may content himself with seizing for his own use anything which she may earn or which may be given to her by her relations. It is only separation by a decree of a court of justice which entitles her to live apart without being forced back into the custody of an exasperated jailer." (2)
In 1850 a Royal Commission had recommended that the government took a look into the workings of the Divorce Law. Robert Rolfe, 1st Baron Cranworth, took up the challenge and when he was appointed Lord Chancellor he began to draw up new legislation. Caroline Norton contacted Cranworth and requested that he included a clause that would ensure that wives could retain their own property after marriage.
Barbara Leigh Smith, the daughter of Benjamin Leigh Smith, the Radical MP for Norwich, joined the campaign, and published Brief Summary in Plain Language of the Most Important Laws Concerning Women (1854). It included the following passage: "A man and wife are one person in law; the wife loses all her rights as a single woman, and her existence is entirely absorbed in that of her husband. He is civilly responsible for her acts; she lives under his protection or cover, and her condition is called coverture. A woman's body belongs to her husband; she is in his custody, and he can enforce his right by a writ of habeas corpus." (3)
As part of her campaign she published the pamphlet, English Laws for Women in the Nineteenth Century (1854). She explained that after years of experiencing violence from her husband she was unable to obtain a divorce: "I consulted whether a divorce 'by reason of cruelty' might not be pleaded for me; and I laid before my lawyers the many instances of violence, injustice, and ill-usage, of which the trial was but the crowning example. I was then told that no divorce I could obtain would break my marriage; that I could not plead cruelty which I had forgiven; that by returning to Mr Norton I had 'condoned' all I complained of. I learnt, too, the law as to my children – that the right was with the father; that neither my innocence nor his guilt could alter it; that not even his giving them into the hands of a mistress, would give me any claim to their custody. The eldest was but six years old, the second four, the youngest two and a half, when we were parted. I wrote, therefore, and petitioned the father and husband in whose power I was, for leave to see them – for leave to keep them, till they were a little older. Mr Norton's answer was, that I should not have them; that if I wanted to see them, I might have an interview with them at the chambers of his attorney." (4)
Caroline Norton also wrote a letter to Queen Victoria complaining about the position of women in regards to divorce. "If her husband take proceedings for a divorce, she is not, in the first instance, allowed to defend herself. She has no means of proving the falsehood of his allegations... If an English wife be guilty of infidelity, her husband can divorce her so as to marry again; but she cannot divorce the husband, however profligate he may be. No law court can divorce in England. A special Act of Parliament annulling the marriage, is passed for each case. The House of Lords grants this almost as a matter of course to the husband, but not to the wife. In only four instances (two of which were cases of incest), has the wife obtained a divorce to marry again." (5)
A group of women, including Barbara Leigh Smith, Emily Davies, Elizabeth Garrett and Dorothea Beale, organised a petition demanding equal legal rights with men. The petition signed by 26,000 men and women was submitted to Parliament. It was accepted by John Stuart Mill in the House of Commons and Lord Henry Brougham in the House of Lords. "The subject was almost entirely new to public consideration, and, as was natural, the feeling both in support of and in opposition to change was very strong. It would disrupt society, people said; it would destroy the home, and turn women into loathsome, self-assertive creatures no one could live with." (6)
The proposed Marriage and Divorce Act was discussed at great length in 1857. William Ewart Gladstone, the future leader of the Liberal Party, was a strong opponent of the bill as he saw it as undermining the authority of the Church. He made seventy-three interventions against the bill, twenty-nine of them in the course of one protracted sitting. However, he was in a small minority and could only gain the support of a "few dozen votes". (7)
In the House of Lords, John Bird Sumner, the Archbishop of Canterbury and Henry Phillpotts, Bishop of Exeter, both supported the measure and became law in January, 1858. Its main purpose was to transfer jurisdiction on divorce from Parliament and the ecclesiastical courts to a new tribunal. This simplified proceedings and radically lowered divorce costs, thereby making it available to a larger section of the population. Actions for "criminal conversations" were abolished. (8)
The new law did not treat men and women on a equal basis. A man could divorce a woman if she was "guilty of adultery". However, the woman could only obtain a divorce if she could show that "her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards." (9)
Four of the causes in the new act were based on Caroline Norton's experiences as a married woman. (Clause 21) A wife deserted by her husband might be protected if the possession of her earnings from any claim of her husband upon them. (Clause 24) The courts were able to direct payment of separate maintenance to a wife or to her trustee. (Clause 25) A wife was able to inherit and bequeath property like a single woman. (Clause 26) A wife separated from her husband was given the power of contract and suing, and being sued, in any civil proceeding. (10)
(1) Caroline Norton, English Laws for Women in the Nineteenth Century (1854)
After the adultery trial was over, I learnt the law as to my children - that the right was with the father; that neither my innocence nor his guilt could alter it; that not even his giving them into the hands of a mistress, would give me any claim to their custody. The eldest was but six years old, the second four, the youngest two and a half, when we were parted. I wrote, therefore, and petitioned the father and husband in whose power I was, for leave to see them - for leave to keep them, till they were a little older. Mr. Norton's answer was, that I should not have them; that if I wanted to see them, I might have an interview with them at the chambers of his attorney. What I suffered on my children's account, none will ever know or measure. Mr. Norton held my children as hostages, he felt that while he had them, he still had power over me that nothing could control.
My youngest child, then a boy of eight year old, left without care or overlooking, rode out with a brother but little older than himself, was thrown, carried to the house of a country neighbour. Mr. Norton allowed the child to lie ill for a week - indeed to be at death's door - before he sent to inform me. Lady Kelly (who was an utter stranger to me) met me at the railway station. I said "I am here - is my boy better?" "No", she said "he is not better - he is dead." And I found, instead of a child, a corpse already coffined."
(2) Caroline Norton, letter to Queen Victoria (2nd June, 1855)
A married woman in England has no legal existence: her being is absorbed in that of her husband. Years of separation of desertion cannot alter this position. Unless divorced by special enactment in the House of Lords, the legal fiction holds her to be "one" with her husband, even though she may never see or hear of him.
She has no possessions, unless by special settlement; her property is his property. Lord Ellenborough mentions a case in which a sailor bequeathed "all he was worth" to a woman he cohabited with; and afterwards married, in the West Indies, a woman of considerable fortune. At this man's death it was held, notwithstanding the hardship of the case, that the will swept away from his widow, in favour of his mistress, every shilling of the property. It is now provided that a will shall be revoked by marriage: but the claim of the husband to all that is his wife's exists in full force. An English wife has no legal right even to her clothes or ornaments; her husband may take them and sell them if he pleases, even though they be the gifts of relatives or friends, or bought before marriage.
An English wife cannot make a will. She may have children or kindred whom she may earnestly desire to benefit; she may be separated from her husband, who may be living with a mistress; no matter: the law gives what she has to him, and no will she could make would be valid.
An English wife cannot legally claim her own earnings. Whether wages for manual labour, or payment for intellectual exertion, whether she weed potatoes, or keep a school, her salary is the husband's; and he could compel a second payment, and treat the first as void, if paid to the wife without his sanction.
An English wife may not leave her husband's house. Not only can he sue her for "restitution of conjugal rights," but he has a right to enter the house of any friend or relation with whom she may take refuge, and who may "harbour her," as it is termed, and carry her away by force, with or without the aid of the police.
If the wife sue for separation for cruelty, it must be "cruelty that endangers life or limb," and if she has once forgiven, or, in legal phrase, "condoned" his offences, she cannot plead them; though her past forgiveness only proves that she endured as long as endurance was possible.
If her husband take proceedings for a divorce, she is not, in the first instance, allowed to defend herself. She has no means of proving the falsehood of his allegations. She is not represented by attorney, nor permitted to be considered a party to the suit between him and her supposed lover, for "damages."
If an English wife be guilty of infidelity, her husband can divorce her so as to marry again; but she cannot divorce the husband a vinculo, however profligate he may be. No law court can divorce in England. A special Act of Parliament annulling the marriage, is passed for each case. The House of Lords grants this almost as a matter of course to the husband, but not to the wife. In only four instances (two of which were cases of incest), has the wife obtained a divorce to marry again.
(3) Barbara Leigh Smith, Brief Summary in Plain Language of the Most Important Laws Concerning Women (1854)
Matrimony is a civil and indissoluble contract between a consenting man and woman of competent capacity....
A man and wife are one person in law; the wife loses all her rights as a single woman, and her existence is entirely absorbed in that of her husband. He is civilly responsible for her acts; she lives under his protection or cover, and her condition is called coverture.
A woman's body belongs to her husband; she is in his custody, and he can enforce his right by a writ of habeas corpus.
What was her personal property before marriage, such as money in hand, money at the bank, jewels, household goods, clothes, etc., becomes absolutely her husband's, and he may assign or dispose of them at his pleasure whether he and his wife live together or not.
A wife's chattels real (i.e., estates held during a term of years, or the next presentation to a church living, etc.) become her husband's by his doing some act to appropriate them; but, if the wife survives, she resumes her property.
Equity is defined to be a correction or qualification of the law, generally made in the part wherein it faileth, or is too severe. In other words, the correction of that wherein the law, by reason of its universality, is deficient. While the Common Law gives the whole of a wife's personal property to her husband, the Courts of Equity, when he proceeds therein to recover property in right of his wife, oblige him to make a settlement of some portion of it upon her, if she be unprovided for and virtuous.
If her property be under £200, or £10 a year, a Court of Equity will not interpose.
Neither the Courts of Common Law nor Equity have any direct power to oblige a man to support his wife,—the Ecclesiastical Courts (i.e., Courts held by the Queen's authority as governor of the Church, for matters which chiefly concern religion) and a Magistrate's court at the instance of her parish alone can do this.
A husband has a freehold estate in his wife's lands during the joint existence of himself and his wife, that is to say, he has absolute possession of them as long as they both live. If the wife dies without children, the property goes to her heir, but if she has borne a child, her husband holds possession until his death.
Money earned by a married woman belongs absolutely to her husband; that and all sources of income, excepting those mentioned above, are included in the term personal property.
By the particular permission of her husband she can make a will of her personal property, for by such a permission he gives up his right. But he may revoke his permission at any time before probate (i.e., the exhibiting and proving a will before the Ecclesiastical Judge having jurisdiction over the place where the party died.)
The legal custody of children belongs to the father. During the life-time of a sane father, the mother has no rights over her children, except a limited power over infants, and the father may take them from her and dispose of them as he thinks fit.
If there be a legal separation of the parents, and there be neither agreement nor order of Court, giving the custody of the children to either parent, then the right to the custody of the children (except for the nutriment of infants) belongs legally to the father.
A married woman cannot sue to be sued for contracts—nor can she enter into contracts except as the agent of her husband; that is to say, her word alone is not binding in law, and persons giving a wife credit have no remedy against her. There are some exceptions, as where she contracts debts upon estates settled to her separate use, or where a wife carries on trade separately, according to the custom of London, etc.
A husband is liable for his wife's debts contracted before marriage, and also for her breaches of trust committed before marriage.
Neither a husband nor a wife can be witnesses against one another in criminal cases, not even after the death or divorce of either.
A wife cannot bring actions unless the husband's name is joined.
As the wife acts under the command and control of her husband, she is excused from punishment for certain offences, such as theft, burglary, house-breaking, etc., if committed in his presence and under his influence. A wife cannot be found guilty of concealing her felon husband or of concealing a felon jointly with her husband. She cannot be found guilty of stealing from her husband or of setting his house on fire, as they are one person in law. A husband and wife cannot be found guilty of conspiracy, as that offence cannot be committed unless there are two persons.
When a woman has consented to a proposal of marriage, she cannot dispose or give away her property without the knowledge of her betrothed; if she make any such disposition without his knowledge, even if he be ignorant of the existence of her property, the disposition will not be legal.
It is usual, before marriage, in order to secure a wife and her children against the power of the husband, to make with his consent a settlement of some property on the wife, or to make an agreement before marriage that a settlement shall be made after marriage. It is in the power of the Court of Chancery to enforce the performance of such agreements.
Although the Common Laws does not allow a married woman to possess any property, yet in respect of property settled for her separate use, Equity endeavours to treat her as a single woman.
She can acquire such property by contract before marriage with her husband, or by gift from his or other persons.
There are great difficulties and complexities in making settlements, and they should always be made by a competent lawyer.
When a wife's property is stolen, the property (legally belonging to the husband) must be laid as his in the indictment.
(4) John Stuart Mill, The Subjection of Women (1869)
She can acquire no property, but for the husband: the instant it becomes hers, even if by inheritance, it becomes ipso facto his... This is her legal state. And from this state she has no means to withdraw herself. If she leaves her husband she can take nothing with her, neither her children nor anything which is rightfully her own. If he chooses he can compel her to return by law, or by physical force; or he may content himself with seizing for his own use anything which she may earn or which may be given to her by her relations. It is only separation by a decree of a court of justice which entitles her to live apart without being forced back into the custody of an exasperated jailer.
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