A Widening Sphere (Routledge Revivals)

Changing Roles of Victorian Women

Martha Vicinus

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135043889
• Edition: 1
• Topic: Storia
• Subtopic: Storia mondiale

First published in 1977, this book is a companion volume to Suffer and Be Still. It looks at the widening sphere of women's activities in the Victorian age and testifies to the dual nature of the legal and social constraints of the period: on the one hand, the ideal of the perfect lady and the restrictive laws governing marriage and property posed limits to women's independence; on the other hand, some Victorian women chose to live lives of great variety and complexity. By uncovering new data and reinterpreting old, the contributors in this volume debunk some of the myths surrounding the Victorian woman and alter stereotypes on which many of today's social customs are based.

1. Victorian Wives and Property

Reform of the Married Women’s Property Law, 1857–1882

Lee Holcombe

IN 1869 SUSANNAH PALMER APPEARED IN THE RECORDER’S COURT IN London, charged with stabbing her husband. He had treated her so brutally for many years that at last she left him in order to support herself and her children and establish a new home. Then her husband appeared and seized and sold all her possessions—as he had every legal right to do.¹ A few years later Millicent Garrett Fawcett had her purse snatched by a young thief in London. When she appeared in court to testify against him, she heard the youth charged with “stealing from the person of Millicent Fawcett a purse containing £1 18s. 6d., the property of Henry Fawcett,” and she recalled, “I felt as if I had been charged with theft myself.”² Such were two women’s experiences of the common law relating to married women’s property. One was a poor working woman who would have gone unnoticed in her time but for her tragic story. The other, happily married to a distinguished Cambridge professor and Liberal member of Parliament, was for years the outstanding leader of the women’s suffrage cause in England.

The stories of women so different as these two illuminate the arguments used by Victorian feminists in their demands for reform of the married women’s property law and for other legal reforms as well. On the one hand, the law often inflicted grievous practical hardships upon women. On the other, the law, regarding a woman as only a part, even a chattel, of her husband, destroyed her independence, her identity, and her self-respect. Reform of the common law affecting women stands out, therefore, as a major achievement of nineteenth-century feminism.³

Reform of the law and feminism itself were responses to the changing economic and social position of women in a time of rapid transition. They reflected the passing of a traditional society, dominated by a landed aristocracy and patriarchal in its attitudes toward women, and the advent of a modern industrialized society, increasingly rationalistic, secular, and democratic, unsure of what position women should have in the new order of things, but well aware, amidst all the vagaries of politics and personalities, that old laws must be brought up to date to meet the needs of the times.

I

Among the great achievements of the Victorian age were the remolding of English law and the complete overhaul of an antiquated and chaotic system of courts. The criminal law was rendered more humane, the law of real property was simplified, and the foundations of modern company law were laid, to cite but a few examples of reform. In the early nineteenth century there existed a variety of superior courts—three common-law courts, four courts of equity, the ecclesiastical courts, and courts of admiralty and of bankruptcy—which administered separate bodies of law, afforded different remedies to suitors, and used different procedures and even different vocabularies. The conflict between the substance and the administration of the common law and of equity was especially glaring. Reform of the courts began in the 1830’s and culminated in passage of the great Judicature Act of 1873 (36 & 37 Vict., c. 66). This Act, with later amendments, consolidated all existing superior courts into one Supreme Court of Judicature, which was competent to deal with all cases and whose judges were to be guided by the general principle that in “any conflict or variance” between the rules of equity and of the common law, “the rules of equity shall prevail.”⁴ It was in this climate of legal reform that the law relating to married women’s property came under attack and was at last amended. There is no better example than this reform to show the conflict between the common law and equity and the eventual superseding of the common law by equity through legislative action.⁵

In the eyes of the common law, married women had no identity apart from their husbands. As the saying went, in law “husband and wife are one person, and the husband is that person.” Where property was concerned, this meant in practice that a husband assumed legal possession or control of all property that belonged to his wife upon marriage and any property that might come to her during marriage. The extent of his possession and control depended on the nature of the property, for the common-law rules distinguished clearly between real and personal property. (Briefly, real property may be defined as property in freehold land, personal property as that in leasehold land and in chattels, that is, property other than land.)

Under the common law a husband enjoyed control over his wife’s real property and the income from it during marriage, but he could not dispose of any of this property without her consent, which had to be duly recorded in court. If a husband died before his wife, her real property reverted to her possession and control absolutely. In addition, by the ancient practice of dower a widow was entitled to a life interest in one-third of the lands to which her husband had ever been entitled. However, under the provisions of a statute of 1833 a husband could set aside his wife’s dower rights if he chose. The object of the statute was to make simpler the disposition of land, but its effect was to infringe upon the common-law protection of widows. A married woman could not make a will devising her real property. If she predeceased her husband, this property went not to him but to her children or other legal heirs, subject to the so-called “curtesy of England,” which was analogous to a widow’s dower rights and by which her husband enjoyed a life interest in all her lands provided a child had been born of the marriage.

On the other hand, a woman’s personal property passed into the absolute possession of her husband. He could use and dispose of it during his lifetime in any way he chose. He could also make a will disposing as he pleased of his personal property, including that which had come to him from his wife. His wife and children might receive absolutely nothing under his will, for the medieval doctrine of “reasonable parts,” under which a widow must receive at least one-third of her husband’s personal property and children also a share, had long since dropped out of the common law. If a husband died intestate, his personal property was divided according to statutory provisions under which his widow never received more than half, the remainder going to his children or other near relatives or, if he had none, to the Crown. A wife, in contrast, could make a will bequeathing her personal property only with her husband’s consent, and this consent he could withdraw at any time before probate. If she died intestate, all her personal property became, or rather remained, her husband’s absolutely.

In these rules the common law clearly showed its origins in medieval times, when land was the chief form of property and wealth. At that time the common law gave considerable protection to married women, for they retained ownership of their real property and had a life interest in their husbands’ lands as well. When personal property, compared to land, was relatively small in amount and value, it did not matter so much that wives lost ownership of theirs and also had no claim upon their husbands’. But medieval times were long past, and the common law did not serve well a society no longer feudal in structure nor chiefly agricultural in its pursuits. Now, more often than not, a woman’s property consisted not of land but of personal property—money from her earnings and from investments, household furnishings, stock in trade—and these, when she married, were no longer hers but her husband’s.

The common-law rules relating to married women’s property might be justified by the fact that the husband as head of the family had to support his wife and children and should have his wife’s property to help him do so. But what if he shirked this responsibility? A woman had the right, acting as her husband’s agent with his express or implied consent, to pledge his credit for the purchase of necessary supplies, but he could withdraw his consent to that at any time. In any event, obtaining supplies on credit was clearly a practice of the more prosperous classes and not one generally suitable or available to the poorer classes. A wife could not sue her husband, since legally they were the same person, and she had no effective means of enforcing her claim to support. The law merely provided that a husband must not allow his wife and children to become charges on the parish. A woman could apply for relief only to the Poor Law guardians, who in turn could recover from the husband the amount of any relief granted. But the guardians might refuse to act, and cases were reported of poor women actually starving to death in these circumstances.⁶

The common-law provisions might also be justified by the fact that the husband was the legal representative of his wife. Having no legal identity apart from her husband and no property under her control during marriage, a wife could not enter into contracts or incur debts except as her husband’s agent, and therefore could not sue or be sued. Instead, her husband was responsible for her debts and contracts and also for her torts committed both before and during marriage. In the case of a tort committed against her, the husband sued in her stead and the damages he collected were his property and not hers. Here, reformers maintained, the state of the law was unfair to husbands and wives alike. Whether or not they had acquired property from their wives upon marriage, husbands had to pay the bills and answer in court for the misdeeds of their wives, who were freed of all accountability. The injury to women lay not only in the fact that rights were denied them but also in the fact that obligations were not placed upon them. Under the law married women were classed together with criminals, lunatics, and minors—legally incompetent and irresponsible.⁷

Diametrically opposed to these common-law views and rules were the principles and practices of equity, which had developed over the centuries to correct the injustices and omissions of the common law and which by the nineteenth century had come to recognize a wife’s existence and right to property separate from her husband. Extending and developing the device of trusts, which were unknown to the common law, equity proceeded upon the principle that although a person could not hold property, it could be held for his or her benefit by a trustee. This meant that by prenuptial agreements, “marriage settlements” as they were called, a woman’s family or friends or the woman herself could designate certain property, whether real or personal, as being her “separate property” or “separate estate,” free from her husband’s common-law rights of possession or control. The trustee of property under a marriage settlement was obligated to carry out the terms of the settlement or, in the absence of specific terms, to deal with the property according to the instructions of the married woman. If no trustee was specially appointed, the courts of equity named the husband as such, since under the common law the property would have been his, but as such he likewise must deal with the property according to the terms of the settlement or his wife’s wishes.

A married woman with a separate estate in equity enjoyed virtually the same property rights as an unmarried woman. She could receive the income from her settled property and spend it as she pleased. She could make her separate property liable for debts that she incurred, and she could sue and be sued with respect to her separate property in the courts of equity. She could give away or sell this property freely. Finally, she could leave her separate property to anyone she wished by a will that her husband did not have to approve and that the courts of equity would uphold.

The relief from the common law that equity afforded was, however, far from being fair and satisfactory. For one thing, equity gave married women the rights without the responsibilities of property. A wife with separate property had no obligation to help support her family, and her husband was not freed from his common-law responsibility for her debts and torts. Much more serious was the fact that the protection of equity was beyond the reach of all but women of the wealthiest classes. Only they could afford the expensive proceedings of the courts of equity, and only they had property sufficient in amount and suitable in nature to be tied up in marriage settlements. It was not feasible for women who were not wealthy to settle upon themselves, through expensive equitable proceedings, small sums of money or even small fortunes of a few hundred pounds. Only one married woman in ten, it was estimated, had separate property in equity secured to her. In short, as reformers liked to put it, what in fact existed was one law for the rich and another for the poor.

The life of Caroline Norton vividly illustrated the hardships that the common law imposed upon married women with respect to property and other matters as well.⁸ A celebrated society beauty in her younger days and a popular hostess in high Whig circles, the Honorable Mrs. Norton had separated from her uncongenial husband in 1836, but under the law she could not obtain a divorce. Much of the property that came to her from her parents passed, under the operation of the common law, into the possession of her husband, who refused to pay her an adequate allowance after their separation. Forced to make her own way in the world, she turned to writing and won considerable acclaim for her poetry, novels, and stories. But under the common law her earnings belonged to her husband, who periodically tried to gain possession of them. In 1836 Norton unsuccessfully sued Lord Melbourne, then Prime Minister, for damages, charging him with adultery with his wife, who as a legal nonperson could not appear in her own defense. Also, exercising his rights under the common law, which gave the father all rights of custody of children and the mother none, Norton abducted their three small sons and thereafter refused to let his wife see them. The first of Mrs. Norton’s polemical pamphlets to be published helped to win passage of the Act of 1839 that gave mothers certain limited rights to their children. In 1853, not for the first time, one of Mrs. Norton’s creditors sued her husband for debts she had incurred in his name, since legally they could not sue her. Subpoenaed as a witness, she made a dramatic appearance in court, and the following year she issued a pamphlet entitled English Laws for Women in the Nineteenth Century, telling of how she “had learned the English law piecemeal by suffering under it.” With reform of the divorce law before Parliament, Mrs. Norton next published in 1855 A Letter to the Queen on Lord Cranworth’s Marriage and Divorce Bill, again recounting her sufferings, and ending: “Meanwhile my husband has a legal lien on the copyright of my works. Let him claim the copyright of this!”

The case of Mrs. Norton inspired the first public activities of a young woman who was just beginning a long and distinguished career in the women’s movement, and to whom also much credit is due for winning the first installment of reform of the married women’s property law.⁹ Barbara Leigh Smith (1827–91) was the eldest child of a wealthy member of Parliament, Unitarian in religion and Radical in politics, whose London house was a meeting place for many noted reformers. He believed strongly in equal rights for women, giving his three daughters an education as good as that of his two sons and bestowing upon them equally handsome annual allowances when they came of age. Bred in such an atmosphere, Miss Leigh Smith early turned her abundant energies and wide sympathies to women’s causes, and in 1854 published her first work, a little pamphlet entitled A Brief Summary, in Plain Language, of the Most Important Laws concerning Women.

The publication of Miss Leigh Smith’s pamphlet aroused considerable public interest and made her name known to others who were interested in legal reform.¹⁰ It attracted the attention of the Law Amendment Society, which was presided over by Lord Brougham, the brilliant if erratic former Lord Chancellor, and which included many other distinguished men who were likewise friends of the Leigh Smith family. The Society referred the matter of property law reform to a committee chaired by Sir Thomas Erskine Perry, who had served as Chief Justice of the Supreme Court of Bombay and was best known as an advocate of constitutional reforms in India, and who had now returned to the English political scene as Liberal M. P. for Devonport. The committee’s report denounced the existing law and called for its amendment.¹¹

To promote the cause of reform the country’s first real feminist committee was now organized, including personal friends and sympathizers of Barbara Leigh Smith such as Bessie Rayner Parkes and Maria Susan Rye, who would later make their mark in other fields of feminist activity. In 1855 the little group began a country-wide campaign to gather proof of hardships caused by the law and to collect signatures on a petition to Parliament requesting reform. Mrs. Norton’s case was famous, but now a mass of evidence was accumulated showing that sufferings such as hers occurred every day and in all ranks of society. Also, as Bessie Parkes later wrote, “In the effort to obtain signatures people interested in the question were brought into communication in all parts of the kingdom, and the germs of an effective...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Copyright Page
• Contents
• Introduction: New Trends in the Study of the Victorian Woman
• 1. Victorian Wives and Property: Reform of the Married Women’s Property Law, 1857-1882
• 2. The Forgotten Woman of the Period: Penny Weekly Family Magazines of the 1840s and 1850s
• 3. Feminism and Female Emigration, 1861-1886
• 4. The Making of an Outcast Group: Prostitutes and Working Women in Nineteenth-Century Plymouth and Southampton
• 5. Image and Reality: The Actress and Society
• 6. Women and Degrees at Cambridge University, 1862-1897
• 7. Victorian Masculinity and the Angel in the House
• 8. Sex and Death in Victorian England: An Examination of Age- and Sex-Specific Death Rates, 1840-1910
• 9. Sexuality in Britain, 1800-1900: Some Suggested Revisions
• 10. The Women of England in a Century of Social Change, 1815-1914: A Select Bibliography, Part II
• Notes
• Index