Document 17A: Barbara Leigh-Smith [Bodichon], A Brief Summary in Plain Language of the Most Important Laws Concerning Women, Together with a Few Observations Thereon (London: J. Chapman, 1854), pp. 3-11. Reprinted in Susan Groag Bell and Karen M. Offen, eds., Women, the Family, and Freedom: The Debate in Documents, Volume I, 1750-1880 (Palo Alto, CA: Stanford University Press, 1983), pp. 300-05.
This summary of outmoded laws pertaining to women carried its author into the center of London's feminist community. In 1858 Bodichon co-founded The English Woman's Journal, published in Langham Place, London. Women in the "Langham Place Circle" sought legal reform and educational and professional opportunities for women.
LEGAL CONDITIONS OF UNMARRIED WOMEN OR SPINSTERS
A single woman has the same rights to property, to protection from the law, and has to pay the same taxes to the State, as a man.
Yet a woman of the age of twenty-one, having the requisite property qualifications, cannot vote in elections for members of Parliament.
A woman duly qualified can vote upon parish questions, and for parish officers, overseers, surveyors, vestry clerks, etc.
If her father or mother dies intestate (i.e., without a will) she takes an equal share with her brothers and sisters of the personal property (i.e., goods, chattels, moveables), but her eldest brother, if she have one, and his children, even daughters, will take the real property (i.e., not personal property, but all other, as land, etc.), as the heir-at-law; males and their issue being preferred to females; if, however, she have sisters only, then all the sisters take the real property equally. If she be an only child, she is entitled to all the interstate real and personal property.
The church and nearly all offices under government are closed to women. The Post-office affords some little employment to them; but there is no important office which they can hold, with the single exception of that of Sovereign.
The professions of law and medicine, whether or not closed by law, are closed in fact. They may engage in trade, and may occupy inferior situations, such as matron of a charity, sextones of a church, and a few parochial offices are open to them. Women are occasionally governors of prisons for women, overseers of the poor, and parish clerks. A woman may be ranger of a park; a woman can take part in the government of a great empire by buying East India Stock.
A servant and a master or mistress are bound by a verbal or written agreement. If no special agreement is made, a servant is held by the common custom of the realm to be hired from year to year, and the engagement cannot be put an end to without a month's noctice on either side.
If a woman is seduced, she has no remedy against the seducer; nor has her father, excepting as he is considered in law as being her master and she his servant, and the seducer as having deprived him of her services. Very slight service is deemed sufficient in law, but evidence of some service is absolutely necessary, whether the daughter be of full age or under age.
These are the only special laws concerning single women: the law speaks of men only, but women are affected by all the laws and incur the same responsibilities in all their contracts and doings as men.
LAWS CONCERNING MARRIED WOMEN
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.
USUAL PRECAUTIONS AGAINST THE LAWS CONCERNING THE PROPERTY OF MARRIED WOMEN
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.
SEPARATION AND DIVORCE
A husband and wife can separate upon a deed containing terms for their immediate separation, but they cannot legally agree to separate at a future time. The trustees of the wife must be parties to the deed, and agree with the husband as to what property the wife is to take, for a husband and wife cannot covenant together.
Divorce is of two kinds—
1st. Divorce à mensa et thoro, being only a separation from bed and board.
2nd. Divorce à vinculo matrimonii, being an entire dissolution of the bonds of matrimony.
The grounds for the first kind of divorce are, 1st. Adultery, 2nd. Intolerable Cruelty, and 3rd. Unnatural Practices. The Ecclesiastical Courts can do no more than pronounce for this first kind of divorce, or rather separation, as the matrimonial tie is not severed, and there is always a possibility of reconciliation.
The law cannot dissolve a lawful marriage; it is only in the Legislature that this power is vested. It requires an act of Parliament to constitute a divorce à vinculo matrimonii, but the investigation rests by usage with the Lords alone, the House of Commons acting upon the faith that the House of Lords came to a just conclusion.
This divorce is pronounced on account of adultery in the wife, and in some cases of aggravated adultery on the part of the husband.
The expenses of only a common divorce bill are between six hundred and seven hundred pounds, which makes the possibility of release from the matrimonial bond a privilege of the rich.
A wife cannot be plaintiff, defendant, or witness in an important part of the proceedings for a divorce, which evidently must lead to much injustice.
LAWS CONCERNING A WIDOW
A widow recovers her real property, but if there be a settlement she is restricted by its provisions. She recovers her chattels real if her husband has not disposed of them by will or otherwise.
A wife's paraphernalia (i.e., her clothes and ornaments) which her husband owns during his lifetime, and which his creditors can seize for his debts, becomes her property on his death.
A widow is liable for any debts which she contracted before marriage, and which have been left unpaid during her marriage.
A widow is not bound to bury her dead husband it being the duty of his legal representative.
If a man die intestate, the widow, if there are children, is entitled to one-third of the personalty; if there are no children, to one-half: the other is distributed among the next of kin, among whom the widow is not counted. If there is no next of kin the moiety goes to the crown.
A husband can, of course, by will deprive a wife of all right in the personalty.
A right is granted in Magna Charta to a widow to remain forty days in her husband's house after his death, provided she do not marry during that time.
A widow has a right to a third of her husband's lands and tenements for her life. Right of dower is generally superseded by settlements giving the wife a jointure. If she accept a jointure she has no claim to dower.
LAWS CONCERNING WOMEN IN OTHER RELATIONSHIPS
A woman can act as agent for another, and, as an attorney, legally execute her authority. A wife can so act if her husband do not dissent.
An unmarried woman can be vested with a trust, but if she marry, the complexities and difficulties are great, from her inability to enter alone into deeds and assurances.
A single woman can act as executrix under a will, but a wife cannot accept an executorship without her husband's consent.
A woman is capable of holding the office of administratrix to an intestate personalty, and administration will be granted to her if she be next of kin to the intestate. But a wife cannot act without the consent of her husband.
If a man place a woman in his house, and treat her as his wife, he is responsible for her debts.
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