1902 Encyclopedia > Law Relating To Women

Law Relating To Women




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LAW RELATING TO WOMEN. The law as it relates to women has been gradual in its operation, but its tendency has been almost uniformly in one direction. Disabilities of women, married or unmarried, have been one after another removed, until at the present day, in most civilized countries, the legal position of women differs little from that of men as far as regards private rights. Politically and professionally the, sexes are still not upon an equality, but even in this aspect women have considerably greater rights than they once possessed, and the old theory of their intellectual and moral inferiority is virtually exploded. Those who defend their exclusion must now do so on other grounds. Much of the law relating to married women has been already dealt with under the heads of ADULTERY, BIGAMY, DIVORCE, MARRIAGE, HUSBAND AND WIFE, and SETTLEMENT, the last two especially dealing with their rights of property.

The dependent position of women in early law is proved by the evidence of most ancient systems which have in whole or in part descended to us. In the Mosaic law divorce was a privilege of the husband only,1 the vow of a woman might be disallowed by her father or husband,2 and daughters could inherit only in the absence of sons, and then they must marry in their tribe.3 The guilt or innocence of a wife accused of adultery might be tried by the ordeal of the bitter water.4 Besides these instances, which illustrate the subordination of women, there was much legislation dealing with, inter alia, offences against chastity, and marriage of a man with a captive heathen woman or with a purchased slave. So far from second marriages being restrained, as they were by Christian legislation, it was the duty of a childless widow to marry her deceased husband’s brother. In India subjection was a cardinal principle. "Day and night must women be held by their protectors in a state of dependence," says Manu.1 The rule of inheritance was agnatic, that is, descent traced through males to the exclusion of females.2 The gradual growth of stridhana, or property of a woman given by the husband before or after marriage, or by the wife’s family, was probably what led to the suttee, for both the family of the widow and the Brahmans had an interest in getting the life estate of a woman out of the way.3 Women in Hindu law had only limited rights of inheritance, and were disqualified as witnesses. In Roman law a woman was even in historic times completely dependent. If married she and her property passed into the power of her husband; if unmarried she, was (unless a vestal virgin) under the perpetual tutelage of her father during his life, and after his death of her agnates, that is, those of her kinsmen by blood or adoption who would have been under the power of the common ancestor had he lived. Failing agnates, the tutelage probably passed to the gens. The wife was the purchased property of her husband, and, like a slave, acquired only for his benefit. A woman could not exercise any civil or public office. In the words of Ulpian, "feminae ab omnibus officiis civilibus vel publicis remotae sunt."4 A woman could not continue a family, for she was "caput et finis familiae suae,"5 could not be a witness, surety, tutor, or curator; she could not adopt or be adopted, or make a will or contract. She could not succeed ab intestato as an agnate, if further removed than a sister. A daughter might be disinherited by a general clause, a son only by name. On the other hand, a woman was privileged in some matters, but rather from a feeling of pity for her bodily weakness and presumed mental incapacity6 than for any more worthy reason. Thus she could plead ignorance of law as a ground for dissolving an obligation, which a man could Hot as a rule do; she could accuse only in cases of treason and witchcraft ; and she was in certain cases exempt from torture. In succession ab intestato to immovable property Roman law did not, as does English, recognize any privilege of males over females. Legal disabilities were gradually mitigated by the influence of fictions, the praetorian equity, and legislation. An example of the first was the mode by which a woman freed herself from the authority of her tutor by fictitious cession into the authority of a tutor nominated by herself, or by sale of herself into the power of a nominal husband on the understanding that he was at once to emancipate her to another person, who then manumitted her. The action of equity is illustrated by the recognition by the praetor of cognatic or natural as distinguished from agnatic or artificial relationship, and of a widow’s claim to succeed on the death of her husband intestate and without relations. Legislation, beginning as early as the Twelve Tables, which forbade excessive mourning for the dead by female mourners, did not progress uniformly towards enfranchisement of women. For instance, the Lex Voconia (about 169 B.C.), called by St Augustine the most unjust of all laws, provided that a woman could not be instituted heir to a man who was registered as owner of a fortune of 100,000 asses.7 A constitution of Valentinian I. forbade bequests by women to ecclesiastics. But the tendency of legislation was undoubtedly in the direction indicated. Adoption of women was allowed by Diocletian and Maximian in 291. The tutelage of women of full age was removed by Claudius, and, though afterwards in part revived, has disappeared by the time of Justinian. This implied full testamentary and contractual liberty. In regard to the separate property of the married woman, the period of dos had by the time of Justinian long superseded the period of manus (see SETTLEMENT). The result was that, in spite of a few remaining disabilities, such as the general incapacity to be surety or witness to a will or contract, of a wife to make a gift to her husband, of a widow to marry within a year of her husband’s death, the position of women had become, in the words of Sir H. Maine, "one of great personal and proprietary independence."8 For this improvement in their position they were largely indebted to the legislation of the Christian emperors, especially of Justinian, who prided himself on being a protector of women. The following are a few of the matters in which Christianity appears to have made alterations, generally but perhaps not always improvements, in the law. As a rule the influence of the church was exercised in favour of the abolition of the disabilities imposed by the older law upon celibacy and childlessness, of increased facilities for entering a professed religious life,8 and of due provision for the wife. The church also supported the political power of those who were her best friends. The government of Pulcheria or Irene would hardly have been endured in the days of the pagan empire. Other cases in which Christianity probably exercised influence may be briefly stated. (1) All differences in the law of succession ab intestato of males and females were abolished by Justinian. (2) The appointment of mothers and grandmothers as tutors was sanctioned by the same emperor. (3) He extended to all cases the principle established by the Senatus Consultum Tertullianum (158), enabling the mother of three (if a freed woman four) children to succeed to the property of her children who died intestate, and gave increased rights of succession to a widow. (4) The restrictions on the marriage of senators and other men of high rank with women of low rank were extended by Constantine, but almost entirely removed by Justinian. (5) Second marriages were discouraged (especially by making it legal to impose a condition that a widow’s right to property should cease on re-marriage), and the Leonine Constitutions at the end of the 9th century made third marriages punishable. (6) The same constitutions made the benediction of a priest a necessary part of the ceremony of marriage.10 The criminal law in its relation to women presents some points of interest. Adultery was punished with death by Constantine, but the penalty was reduced by Justinian to relegation to a convent. A woman condemned for adultery could not re-marry. A marriage between a Christian and a Jew rendered the parties guilty of adultery, Severe laws were enacted against offences of unchastity, especially procurement and incest. It was a capital crime to carry off or offer violence to a nun. A wife could not commit furtum of her husband’s goods, but he had a special action rerum amotarum against her. By several sumptuary constitutions, contained in the Code, bk. xi., women as well as men were subject to penalties for wearing dress or ornaments (except rings) imitating those reserved for the emperor and his family. Actresses and women of bad fame were not to wear the dress of virgins dedicated to Heaven. If a consul had a wife or mother living with him, he was allowed to incur greater expense than if he lived alone. The interests of working women were protected by enactments for the regulation of the gynoecia, or workshops for spinning, dyeing, &c.

The canon law, looking with disfavour on the female inependence prevailing in the later Roman law, tended rather in the opposite direction. The Decretum specially inculcated subjection of the wife to the husband, and obedience to his will in all things.1 The chief differences between canon and Roman law were in the law of marriage, especially in the introduction of publicity and of the formalities of the ring and the kiss. The benediction of a priest was made a necessary part of the ceremony, as indeed it had been made by the civil power, as has been already stated, in the post-Justinian period of Roman law. But in practice this rule appears to have fallen into disuse until it was again revived by the council of Trent. It was, however, the rule of the English common law after the Reformation. The ceremony was not to be performed during Lent. The woman was to be veiled during the ceremony. A promise of marriage was so sacred, that it made a subsequent marriage with another person void. Spiritual cognation was a bar to marriage. The sentence of the church was made necessary for divorce. As to women in general the law does not say very much. Women, even relatives, were not to live with priests unless in case of necessity. They were not to approach the altar or fill any public office of the church ; nor might they lend money on usury. Baptism might be valid although administered by a woman. Women who had professed religion could not be forced to give evidence as witnesses. In some cases the evidence of women was not receivable (see WITNESS).2

The early law of the northern parts of Europe is interesting from the different ways in which it treated women. In the words of Sir H. Maine3 –"The position of women in these barbarous systems of inheritance varies very greatly. Sometimes they inherit, either as individuals or as classes, only when males of the same generation have failed. Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably took a great share in producing by their household labour ; for example, in the real Salic law (not in the imaginary code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. . . . The idea is that the proper mode of providing for a woman is by giving her a marriage portion; but, when she is once married into a separate community consisting of strangers in blood, neither she nor her children are deemed to have any further claim on the parent group." Among the Scandinavian races women were under perpetual tutelage, whether married or unmarried. The first to obtain freedom were the widows.4 As late as the code of Christian V., at the end of the 17th century, it was enacted that if a woman married without the consent of her tutor he might have, if he wished, administration and usufruct of her goods during her life.5 The provision made by the Scandinavian laws under the name of morning-gift was perhaps the parent of the modern settled property.6 The Brehon law of Ireland excepted women from the ordinary course of the law. They could distrain or contract only in certain named cases, and distress upon their property was regulated by special rules. In the pro-Conquest codes in England severe laws were denounced against unchastity, and by a law of Canute a woman was to lose nose and ears for adultery. The laws of Athelstan contained the peculiarly brutal provision for the punishment of a female slave convicted of theft by her being burned alive by eighty other female slaves. Other laws were directed against the practice of WITCHCRAFT (q.v.) by women. Monogamy was enforced both by the civil and ecclesiastical law; and second and third marriages involved penance. A glimpse of cruelty in the household is afforded by the provision, occurring no less than three times in the ecclesiastical legislation, that if a woman scourged her female slave to death she must do penance. Traces of wife-purchase are seen in the law of Etbelbert, enacting that if a man carry off a freeman’s wife be must at his own expense procure the husband another wife. The codes contain few provisions as to the property of married women, but those few appear to prove that she was in a better position than at a later period. The laws of Ine gave her a third of her husband’s property; the laws of Edmund as to betrothal allowed this to be increased to half by antenuptial contract, to the whole if she had children and did not re-marry after her husband’s death. No doubt the dower ad ostium. ecelesiae favoured by the church generally superseded the legal rights where the property was large—in fact this is specially provided by Magna Charta, c. 7—just as at present rights under a marriage settlement take the place of those given by statute. "Provisio hominis tollit provisionem legis." The legal rights of a married woman apart from contract were gradually limited, until by the time of Glanvill her person and property had become during her husband’s lifetime entirely at his disposal, and after his death limited to her dower and her pars rationabilis (see WILL).

A few of the more interesting matters in which the old common and statute law of England placed women in a special position may be noticed. A woman was exempt from legal duties more particularly attaching to men and not performable by deputy. She could apparently originally not hold a proper feud, i.e., one of which the tenure was by military service.7 The same principle appears in the rule that she could not be endowed of a castle maintained for the defence of the realm and not for the private use of the owner. She could receive homage, but not render it in the form used by men, and she was privileged from suit and service at the sheriff’s tourn. She was not sworn to the law by the oath of allegiance, in the leet or tourn, and so could not be outlawed (See OUTLAW), but was said to be waived. She could be constable, either of a castle or a vill, but not sheriff, unless in the one case of Westmorland, an hereditary office, exercised in person in the 17th century by the famous Anne, countess of Dorset, Pembroke, and Montgomery. In certain cases a woman could transmit rights which she could not enjoy. On such a power of transmission, as Sir H. Maine shows,1 rested the claim of Edward III. to the crown of France. The claim through a woman was not a breach of the French constitutional law, which rejected the claim of a woman. The jealousy of a woman’s political influence is strikingly shown by the case of Alice Perrers, the mistress of Edward III. She was accused of breaking an ordinance by which women had been forbidden to do business for hire and by way of maintenance in the king’s court.2

By Magna Charta a woman could not appeal any one for murder except that of her husband. This disability no doubt arose from the fact that in trial by battle she naturally did not appear in person but by a champion. She was not admitted as a witness to prove the status of a man on the question arising whether he were free or a villein. She could not appoint a testamentary guardian, and could only be a guardian even of her own children to a limited extent. Her will was revoked by marriage, that of a man only by marriage and the subsequent birth of a child (see WILL). By 31 Hen. VI. c. 9 the king’s writ out of chancery was granted to a woman alleging that she had become boand by an obligation through force or fraud. By 39 Hen. VI. c. 2 a woman might have livery of land as heiress at fourteen. Benefit of clergy was first allowed to women partially by 21 Jac. I. c. 6, fully by 3 Will. and M. c. 9 and 4 and 5 Will. and M. c. 24. Public whipping was not abolished until 57 Geo. III. c. 75, whipping in all cases until 1 Geo. IV. c. 57. Burning was the punishment specially appropriated to women convicted of treason or witchcraft. A case of sentence to execution by burning for petit treason occurred as lately as 1784. In some old statutes very curious sumptuary regulations as to women’s dress occur. By the sumptuary laws of Edward III. in 1363 (37 Edw. III. cc. 8-14) women were in general to be dressed according to the position of their fathers or husbands. Wives and daughters of servants were not to wear veils above twelve pence in value. Handicraftsmen’s and yeomen’s wives were, not to wear silk veils. The use of fur was confined to the ladies of knights with a rental above 200 marks a year. Careful observance of difference of rank in the dress was also inculcated by 3 Edw. IV. c. 5. The wife or daughter of a knight was not to wear cloth of gold or sable fur, of a knight-bachelor not velvet, of an esquire or gentleman not velvet, satin, or ermine, of a labourer not clothes beyond a certain price or a girdle garnished with silver. By 22 Edw. IV. c. 1, cloth of gold and purple silk were confined to women of the royal family. It is worthy of notice that at the times of passing these sumptuary laws the trade interests of women were protected by the legislature. By 37 Edw. 111. c. 6, handicraftsmen were to use only one mystery, but women might work as they had been accustomed. 3 Edw. IV. c. 3 forbade importation of silk and lace by Lombards and other alien strangers, imagining to destroy the craft of the silk spinsters and all such virtuous occupations for women. In some cases the wives and daughters of tradesmen were allowed to assist in the trades of their husbands and fathers ; see, for instance, the Act concerning tanners, 1 Jac. I. c. 22. Some trading Corporations, such as the East India Company, recognized no distinction of sex in their members. The disabilities imposed on women by substantive law are sometimes traceable in the early law of procedure. For instance, by the Statute of Essoins (12 Edw. II. st, 2), essoin de servitio regis did not lie where the party was a woman; that is, a woman (with a few exceptions) could not excuse her absence from court by alleging that she was on public duty. The influence of the church is very clearly traceable in some of the earlier criminal legislation. Thus by 13 Edw. I. st. 1, c. 34, it was punishable with three years’ imprisonment to carry away a nun, even with her consent. The Six Articles, 31 Hen. VIII. c. 14, forbade marriage and concubinage of priests and sanctioned vows of chastity by women.

The present position of women in English law may be treated, for purposes of convenience, under several heads. Sex alone, as will appear, does not determine the law: sex and marriage together must often be taken into consideration.





Political Rights.—This branch of the law is fall of singular anomalies. A woman may fill some of the highest positions in the state. She may be a queen, a regent, or a peeress in her own rigth.3 A queen regnant has, by 1 Mary, sess. 3, c. 1, as full right as a king. A peeress is entitled, by 20 Hen. VI. c. 9, to be tried like a peer by the House of Lords or the court of the lord high steward (see TRIAL), and has a seat in the House of Lords, but no right of speaking or voting. Other public offices which a woman can fill are those of overseer, guardian of the poor, churchwarden, and sexton. She may also, if married, be. one of a jury of matrons empanelled to determine the question of pregnancy of a widow on a writ de ventre inspiciendo or of a female prisoner, but she cannot serve on an ordinary jury. If unmarried or a widow she can vote in municipal, school board, local government, poor law, and other elections of a local character (such as polls of ratepayers under the Free Libraries and Borough Funds Acts), and can be a member (whether married or not) of a school board, but apparently not an overseer or guardian if married and living with her busband. She cannot be registered as a voter or vote at a parliamentary election or be elected a member of parliament. It was decided in 1868 that the words of Lord Brougham’s Act (13 and 14 Vict. c. 21, § 4), by which in all Acts words importing the masculine gender are to be taken to include females unless the contrary is expressly provided, did not bring a woman within the word "man" in the Representation of the People Act, 1867.4 The same would no doubt be held, if the point were raised, under the Representation of the People Act, 1884. The question of granting the parliamentary franchise to women was first brought before the House of Commons by John Stuart Mill in 1867, as an amendment to the Representation of the People Bill of that year, and has uniformly been rejected on that and several subsequent occasions. At present the Isle of Man is the only part of the United Kingdom where such a right exists. It was there conceded in 1882 to unmarried women with sufficient property qualification. For the precedence of women, See PRECEDENCE. The national status of married women and widows is provided for by the Naturalization Act, 1870.

Professions and Trades.—The only one of the learned professions open to women is the medical. Such rights as may be possessed by the Society of Apothecaries and the College of' Surgeons to admit women to their respective qualifications are specially saved by 37 and 38 Vict. c. 34 and 38 and 39 Vict. c. 43. By an Act of 1876 (39 and 40 Vict. c. 41) medical qualifications may be granted, irrespective of sex, by any body empowered to grant such qualifications. As a matter of fact the College of Surgeons does not at present allow women to qualify, but the Society of Apothecaries and the College of Surgeons of Ireland and the King’s and Queen’s College of Physicians in Ireland follow the more liberal course. Admission to degrees, medical and others, in the universities is only allowed to a limited extent. Oxford and Cambridge admit women to examinations, but not to degrees. London, under its supplemental charter of 1878, admits to all degrees. The University Education (Ireland) Act, 1879, contains a section empowering the Royal University of Ireland to examine women for degrees and certificates of proficiency. The Endowed Schools Act, 1869, provides for extending to girls the benefits of educational endowments. A similar provision is included in the City of London Parochial Charities Act, 1883. Under the powers of these Acts, as well as by private munificence, a considerable sum of money has been during the last few years provided for the purposes of female education. Special regulations are made by the Factories and Mines Acts as to the employment of women and girls in factories and mines. Under no circumstances is a woman allowed to work underground. The Shop Hours regulation Act, 1886 (a temporary provision), forbids the employment in shops of girls under eighteen for more than seventy-four hours in a week. Women have recently been em-ployed to a greater extent than formerly in Government departments, especially in the post-office. A married woman may, since the Married Women’s Property Act, 1882, carry on a trade separately from her husband, and in such a case is liable to be made a bankrupt. She may apparently be a partner of her husband, and may lend him money, but in this case her claim to a dividend on his bankruptcy is postponed to that of other creditors.

Family Rights.—The age at which a girl can contract a valid marriage is, following Roman law, twelve; she is thus two years in advance of a boy, who must be fourteen. Under the Infants Settlement Act (see SETTLEMENT) a valid settlement can be made by a woman at seventeen with the approval of the court, the age for a man being twenty. An unmarried woman is liable for the support of illegitimate children till they attain the age of sixteen. She is generally assisted, in the absence of agreement, by an affiliation order granted by magistrates. A married woman having separate property is, under the Married Women’s Property Act, liable for the support of her husband, children, and grandchildren becoming chargeable to any union or parish. At common law the father was entitled as against the mother to the custody of a legitimate child up to the age of sixteen, and could only forfeit such right by misconduct. But the Court of Chancery, wherever there was trust property and the infant could be made a ward of court, took a less rigid view of the paternal rights and looked more to the interest of the child, and consequently in some cases to the extension of the mother’s rights at common law. Legislation has tended in the same direction. By 36 Vict. c. 12 the Court of Chancery was empowered to enforce a provision in a separation deed, giving up the custody or control of a child to the mother. The Judicature Act, 1878, § 25 (10), enacted that in questions relating to the custody and education of infants the rules of equity should prevail. The Guardianship of Infants Act, 1886, largely extended the mother’s powers of appointing and acting as a guardian, and gave the court a discretion to regard the mother’s wishes as to the custody of the children. The children of women convicted of crime or frequenting the company of prostitutes may be sent to an industrial school. The principal disabilities under which women are now placed may perhaps be classed under the head of family rights, viz., exclusion of female heirs from intestate succession to real estate, unless in absence of a male heir (see INHERITANCE, PRIMOGENITURE), and the obtaining of DIVORCE (q.v.) by a husband for the adultery of his wife, while the wife can only obtain it for adultery coupled with some further cause, such as cruelty or desertion.

Rights of Property.—Unmarried women and widows have practically equal rights with men. Since the date of the article HUSBAND AND WIFE the Married Women’s Property Act, 1882, has extended the change in the law attempted to a limited degree by the previous Acts of 1870 and 1874. The most important provisions of the Act (45 and 46 Vict. c. 75) falling under this head are the following. A married woman is capable of acquiring, holding, and disposing by will or otherwise of any real and personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. Every contract entered into by a married woman is to be deemed to bind her separate property, unless the contrary be shown. Property of a woman married after the commencement of the Act, whether belonging to her at the time of marriage or acquired after marriage, is to be held by her as a feme sole. The same is the case with property acquired after the commencement of the Act by a woman married before the Act. After marriage a woman remains liable for antenuptial debts and liabilities, and as between her and her husband, in the absence of contract to the contrary, her separate property is to be deemed primarily liable. The husband is only liable to the extent of property acquired front or through his wife. The Act also contains provisions as to stock, investment, insurance, evidence (See WITNESS), and other matters. The effect of the Act is to render obsolete the old law as to what creates a separate use or a reduction into possession of choses in action (see PERSONAL ESTATE), as to equity to a settlement, as to fraud on the husband’s marital rights,1 and as to the inability of one of two married persons to give a gift to the other. Also, in the case of a gift to a husband and wife in terms which would make them joint-tenants if unmarried, they no longer take as one person but as two. The construction of the Act by the courts has been in one or two cases perhaps somewhat narrow; still there is no doubt that it has affected the proprietary rights of married women to all immense extent. Its effect has been principally to improve the position of wives of the humbler class unprotected by marriage settlement. There is a special saving in the Act of existing and future settlement. A settlement is still necessary where it is desired to secure only the enjoyment of the income to the wife and to provide for children. The Act by itself would enable the wife, without regard to family claims, instantly to part with the whole of any property which might come to her. Restraint on anticipation, a means of protecting a married woman’s property from her husband’s influence, is also preserved by the Act, subject to the liability of such property for antenuptial debts, and to the power given to the court by the Conveyancing Act, 1881, to bind a married woman’s interest notwithstanding a clause of restraint. This possibility of being restrained from anticipation is now one of the principal points of difference between the proprietary rights of men andwomen. Formerly remaining unmarried could be attached as a condition of the enjoyment of property by a widow only, but it has been recently decided that such a condition may be imposed upon awidoweras well. In one case, however, the widow has still an advantage over the widower. Limitations contained in her marriage settlement in favour of her children by a former marriage are not treated as voluntary, while similar limitations in the Settlement of a widower are regarded as voluiltary, and therefore void as against a subsequent mortgagee of the settled property.2 By Magna Charta, c. 7, a widow is to have her QUARANTINE (q.v.), and is not to be forced to re-marry.

Procedure.—An action for breach of promise of marriages3 and an affiliation summons under the Bastardy Acts are, the former practically, the latter entirely, confined to women. An action of SEDUCTION (q.v.), though not brought in England by the woman herself, is for injury suffered by her. The Rules of the Supreme Court and the Married Women’s Property Act contain various provisions for the bringing and defending of actions by married women. The main provision is § 1 (2) of the Act, enabling a married woman to sue and be sued, either in contract or in tort or otherwise, in all respects as if she were a feme sole. Her position, however, is not, owing to the judicial interpretation of the Act, as completely independent as the words of the Act would at first sight appear to imply. It has been held, for instance, that she cannot since the Act, any more thah before it, be next friend or guardian ad litem of an infant. The husband and wife too may still be sued jointly for a tort committed by the wife after marriage. Apart from proceedings for divorce or judicial separation, a husband cannot sue his wife for a tort committed during the coverture, nor a wife her husband, unless for the protection and security of her separate property. She can, however, cause him to be bound over in recognizances to keep the peace towards her in case of violence on his part. The Married Women’s Property Act contains a useful section enabling questions between husband and wife as to property to be decided in a summary way. A judgment against a married woman under the Act is limited to execution against her separate property; she cannot like an ordinary debtor be committed to prison under the Debtors Act for default in payment.

Criminal Law.—There are some offences which can be committed only by women, others which can be committed only against them. Among the former are concealment of birth (in ninety-nine cases out of a hundred), the now obsolete offence of being a common scold, and prostitution and kindred offences. Many offences of the latter kind were up to a recent date dealt with under the Contagious Diseases Acts, which were repealed in 1886. Where a married woman commits a crime in company with her husband, she is generally presumed to have acted by his coercion, and so to be entitled to acquittal. This presumption, however, was never made in witchcraft cases, and is not now made in cases of treason, murder, and other grave crimes, or in crimes in which the principal part must necessarily be taken by the wife, such as keeping a brothel. In fact, the exceptions to the old presumption are now perhaps more numerous than those falling within it. The doctrine of coercion and the practice of separate acknowledgment of deeds by married women (necessary before the Married Women’s Property Act) seem to be vestiges of the period wben women, besides being chattels, were treated as chattels.4 Formerly a wife could not steal her husband’s property, but since the Married Women’s Property Act this has become possible. The evidence of a wife is not usually receivable for or against her husband (See WITNESS). She does not become all accessory after the fact by receiving and harbouring her husband after he has committed a felony; the husband, however, is not equally privileged if the offence & committed by the wife. Adultery is now no crime, England being almost the only country where such is the case. It was punished by fine in the ecclesiastical courts up to the 17th century, and was made criminal for a short time by an ordinance of the Long Parliament. The offences which can be committed only against women are chiefly those against decency, such as rape, procurement, and similar crimes, in which a considerable change in the law in the direction of increased protection to women was made by the Criminal Law Amendment Act, 1885. Another offence is abduction, which needs to be separately mentioned, as it appears in law to be an offence partly against the person, partly against property, for a difference is made between the abduction of a woman with property and of one without property. As to offences committed against a wife, recent legislation has made some considerable changes. By the Matrimonial Causes Act, 1878, if a husband be convicted of an aggravated assault upon his wife, the court before which he is tried may order (subject to an appeal to the Probate, Divorce, and Admiralty Division of the High Court) that the wife be no longer bound to cohabit with him, such order to have the effect of a judicial separation on the ground of cruelty. The order may also provide for payment of a weekly allowance by the husband to the wife and for the custody of the children of the marriage. That of the children under ten may be given to the wife. The Married Women’s Property Act gives a married woman criminal remedies against all persons (including her husband) for the protection of her separate property, with a proviso that no such criminal proceeding shall be taken against a husband while they are living together, nor while they are living apart, concerning any act done while they were living together, unless the wife’s property have been wrongfully taken by the husband on desertion of his wife. The section just cited extends the common law, under which the wife’s redress for injuries committed by her husband was confined to injuries to the person. But it extends it only to injuries to the separate property, and it has recently been held that a wife cannot, under the terms of the section, proceed against her hus-band criminally for a libel.1 The Married Women (Maintenance in Case of Desertion) Act, 1886, enables a wife to summon her husband before a court of summary jurisdiction for desertion, and the court may make an order for her support. Before the Act the wife’s only course was to become chargeable to the parish, allowing the guardians to seek to recover from the husband the cost of her maintenance. The punishment of a woman may still be different from that of a man in TREASON (q.v.). Where whipping is allowed after conviction for robbery, or of juvenile offenders for larceny, it cannot be inflicted on females. Chastisement of a wife by a husband, possibly at one time lawful to a reasonable extent, would now certainly constitute an assault. The husband’s rights are limited to restrain-ing the wife’s liberty in case of her misconduct.





Scotland.—As early as Regiam Majestatem (12th century) women were the object of special legal regulation. In that work the mercheta mulieris (probably a tax paid to the lord on the marriage of his tenant’s daughter) was fixed at a sum differing according to the rank of the woman. Numerous ancient laws dealt with trade and sumptuary matters. By the Leges Quatuor Burgorum, female brewsters making bad ale were to forfeit eightpence and be put on the cucking-stool, and were to set an ale-wand outside their houses under a penalty of fourpence. The same laws also provided that a married woman committing a trespass without her husband’s knowledge might be chastised like a child under agge. The Statuta Gilde of the 13th century enacted that a married woman might not buy wool in the streets or buy more than a limited amount of oats. The same code also ensured a provision for the daughter of one of the guild-brethren unable to provide for herself through poverty, either by marrying her or putting her in a convent. By the Act 1429, c. 9, wives were to be arrayed after the estate of their hushands. By 1457, c. 13, no woman was to go to church with her face covered so that she could not be known. 1581, c. 18, was conceived in a more liberal spirit, and allowed women. to wear any head-dress to which they had been accustomed. 1621, c. 25, permitted servants to wear their mistress’s cast-off clothes. 1681, c. 80, contained the remarkable provision that not more than two changes of raiment were to be made by a bride at her wedding. In itskinore modern aspect the law is in most respects similar to that of England. A woman may be queen or a peeress of Scotland.2 In the old law she could not do homage, but only fealty, and she could not be arbiter, cautioner, or witness. A married woman could be warrantor of heritables only where her husband was under age and she was of full age. All disabilities of women as witnesses were removed by 31 and 32 Vict. c. 101, § 139. A woman is still not receivable as cautioner for an executor-dative. Nor can she be tutor-at-law, but she may be appointed tutor by testament or by the court. While tests existed women were exempt from the test oath (see TEST ACTS). The Court of Session decided in 1868 that the parliamentary suffrage was confined to males.3 But, as in England, women possess votes in elections to school boards and to municipal and local bodies, the latter specially conferred by the Municipal Elections Amendment Act, 1881, and the General Police and Improvement Act, 1882. The right of married women to vote at school-board elections under the Education Act, 1872, appears to have caused some difficulty, and to have been differently decided in different counties. Women are not admitted to degrees by the Scottish universities, though several attempts have been made to confer upon them this privilege. At one time, indeed they seem to have practised medicine without qualification, for in 1641, in a ratification of the privileges of the Edinburgh chirurgeons, a complaint was recited that women practised chirurgy without having learned the art. In 1873 the Court of Session decided that female students could not graduate in medicine at Edinburgh.4 A bill to enable the universities to grant degrees to women was rejected in 1875. St Andrews grants them not the ordinary degree but a special title of L. L.A.5 The powers given by the Act of 1876 (39 and 40 Vict. c. 41) have recently been exercised in favour of women by the Colleges of Physicians and of Surgeons of Edinburgh and the Faculty of Physicians and Surgeons of Glasgow. By the Educational Endowments Act, 1882, the benefits of endowments are to be extended as far as possible to both sexes. In 1881 the Married Women’s Property Act (44 and 45 Vict. c. 21) made important extensions of the rights given to married women by the Act of 1877, for which see HUSBAND AND WIFE. A wife married after the date of the Act has a separate estate in movable and heritable property. A husband has the same rights in the movable estate of his deceased wife as a widow had before the Act in the estate of her deceased husband. Children have a right of legitim in their mother’s movable estate. The criminal law differs slightly from that of England. At one time drowning was a punishment specially reserved for women. Incest or an attempt to commit incest is still punishable as a crime, and has been so punished within the last few years. Adultery and fornication are still nominally crimes under old Acts, but criminal proceedings in these cases have fallen into desuetude. The age of testamentary capacity is still twelve, not twenty-one, as in England.

United States.—The Acts of Congress contain little affecting the subject. Any woman married to a citizen of the United States who might herself be lawfully naturalized is to be deemed a citizen. Women are allowed as clerks in Government departments, and may be employed as nurses and hospital matrons in the army. The right of voting for Congress or for the State legislatures is still denied in the country as a whole, in spite of the strong attempts which have been made by the advocates of female suffrage. The right, however, exists to a limited extent. In the Territories of Washington, 'Wyoming, and Utah women vote, and in the constitutions of some States, such as Colorado and Wisconsin, it is provided that the right of suffrage may be extended to women by a majority of electors at a general election. The constitutions of most States confine the parliamentary franchise to male electors. The admission of women to the school franchise is, however, largely increasing, and had in 1887 been adopted by fourteen States. In a limited number of States the professions (except the military) are open to women, Where the legal profession is not so open, a refusal by a State court to grant a licence to practise law is no breach of the Federal constitution (See PRIVILEGE). In most States the policy adopted in England by the Married Women’s Property Act is the rule, and there is in general no distinction of sex in succession to real estate. For the testamentary rights of married women see WILL. In some of the State universities women are admitted to full privileges of instruction and graduation. In others, such as the university of Pennsylvania, they are admitted to instruction and examination, but not to graduation. The law in some cases gives women remedies for tort which are unknown in England. For instance, by the law of some States a woman may bring an action of SEDUCTION (q.v.) in her own name, and may recover damages for slander imputing unchastity, without proof of special damage, which cannot be done in England. The criminal law is also more extensive. In the New England and some of the other States mere fornication is punishable as a crime. Adultery is criminal by the law of most States.

Literature.—Besides those already cited, the following authorities may be consulted. For the general law Montesquieu, Esprit des Lois, bk. vii.; Laboulaye, Recherches sur la Condition Civile et Politique des Femmes, 1843; Tbos. Wright, Womankind in Western Europe, 1869; Sheldon Amos, Difference of Sex as a Topic of Jurisprudence and Legislation, 1870; Paul Gide, Étude sur la Condition Privée de la Femme, 1885; Ernest Naville, "La Condition Social e des Fernmes," in the Bibliothèque Universalle et Revue Suisse, for Oct., Nov., and Dec., 1887. For old English law, The Law’s Resolutions of Women’s Rights, 1632; The Lady’s Law, 1737; The Laws Respecting Women, 1777 (these three works are anonymous); C. S.Kenny, Hist. of the Law of England as to the Effects of Marriage on Property and on the Wife’s Legal Capacity, 1879. For modern English law, T. Barrett-Leonard, The Position in Law of Women, 1883; R. Thicknesse, Digest ofthe Law of Husband and Wife, 1884 ; Wolstenholme and Turner, Conveyancing Acts (4th ed,), 1885; W. P. Eversley, Law of the Domestic Relations, 1885; Félix Remo, L’Égalité des Sexes en Angleterre, 1886.

Breach of Promise of Marriage.—The action for breach of promise of marriage is in some of its incidents peculiar to English law. In Roman, betrothal (sponsalia) imposed a duty on the betrothed to become husband and wife within a reasonable time, subject to the termination of the obligation by death, repudiation by the words conditione tua non utor, or lapse of time, the time fixed being two years. No action lay for breach of promise to marry unless arrhae sponsalitiae had been given, i.e., earnest of the bargain, to be forfeited by the party refusing to carry it out. The arrha might also be given by a parent, and was equally liable to forfeiture. A provincial governor, or one of his relations or household, could not recover any arrha that might have been given, it being sup-posed that he was in a position of authority and able to exercise influence in forcing consent to a betrothal.

In the carion law breach of the promise made by the sponsalia, whether do praesenti or de future, a division unknown to Roman law, does not without more appear to have sufficed to found an action for its breach, except so far as it fell under ecclesiastical cognizance as laesio fidei, but it had the more serious legal effect of avoiding as a canonical disability the subsequent marriage, while the original sponsalia continued, of a betrothed person to any other than the one to whom he or she was originally betrothed. The sponsalia became inoperative, either by mutual consent or by cer-tain supervening impediments, such as ordination or a vow of chastity. The canonical disability of pre-contract was removed in England by 32 Hen. VIII. c. 38, re-established in the reign of Edward VI., and finally abolished in 1753.

In England the duty of the parties is the same as in Roman law, viz., to carry out the contract within a reasonable time, if no time be specially fixed. Formerly a contract to marry could be specifically enforced by the ecclesiastical court compelling a cele-bration of the marriage in facie ecclesiae. The last instance of a suit for this purpose was in 1752, and the right to bring it was abolished in 1753 by Lord Hardwicke’s Act (26 Geo. II c. 33). The action for breach of promise may be brought by a man or a woman, though the former case has been of rare occurrence, and a male plaintiff has still more rarely been rewarded with anything more than nominal damages. It may be brought by but not against an infant, and not against an adult if he or she has merely ratified a promise made during infancy; it may be brought against but not by a married man or woman (in spite of the inherent incapacity of such a person to have married the plaintiff), and neither by nor against the personal representatives of a deceased party to the promise (unless where special damage has accrued to the personal estate of the deceased). The promise need not be in writing. The parties to an action are, by 32 and 33 Vict. c. 68 competent witnesses; the plaintiff cannot, how-ever, recover a verdict without his or her testimony being corroborated by other material evidence. The measure of damages is to a greater extent than in most actions at the discretion of the jury; they may take into consideration the injury to the plaintiff’s feelings, especially if the breach of promise be aggravated by seduction. Either party has a right to trial by jury under the rules of the Supreme Court, 1883. The action cannot be tried in a county court, unless by consent, or unless remitted for trial there by the High Court. Unchastity of the plaintiff unknown to the defendant when the promise was made and dissolution of the contract by mutual consent are the principal defences which are usually raised to the action. Bodily infirmity of the defendant is no defence to the action, though it may justify the other party in refusing to marry the person thus affected. Where the betrothed are within prohibited degrees of consanguinity or affinity, there can be no valid promise at all, and so no action for its breach.

In Scotland a promise in the nature of sponsalia de futuro not followed by consummation may be resiled from, subject to the liability of the party in fault to an action for the breach, which by 6 Geo. IV. c. 120, s. 28, is a proper cause for trial by jury. If, however, the sponsalia be de praesenti, and, according to the more probable opinion, if they be do futuro followed by consummation, a pre-contract is constituted, giving a right to a decree of declarator of marriage and equivalent to marriage, unless declared void during the lifetime of the parties.

In the United States the law is in general accordance with that of England. The statute law of California and Dakota pro-vides that the unchastity of one party of which the other is ignorant is a good defence, but it is no defence if both participate therein. (J. W†.)


Footnotes

FOOTNOTES (page 637)

(1) Deut, xxiv. 1.

(2) Numb. xxx. 3.

(3) Numb. Xxvii., xxxvi.

(4) Numb. V. 11.



FOOTNOTES (page 638)

(1) Ch. ix. § 2 (Sir W. Jones’s translation).

(2) Whether this was the oldest rule of inheritance has been much debated. See FAMILY, That birth of a child gave the mother certain legal rights in a primitive stage of society is the view of many writers. See especially Las Mutterrecht of J. J. Bachoffen (Stuttgart, 1861).

(3) Maine, Early History of Institutions, lect. Xi.

(4) Dig., i. 16, 195.

(5) Ibid.

(6) Imbecillitas is the term used more than once in the texts of Roman law.

(7) The way in which this law was evaded was by non-enrolment of the testator in the census (see Montesquieu, Esprit des Lois, bk. xxvii.). Another way was by leaving her the inheritance by fideicommissum (see TRUST).

(8) Ancient Law, ch. v. Hence the necessity of such laws as the Lex Oppia (see SUMPTUARY LAWS).

(9) A remarkable example of this tendency was the provision that an actress might leave the stage and break her contract of service with impunity in order to become a nun (see THEATRE). Even under the pagan emperors a constitution of Diocletian and Maximian in 285 had enacted that no one was to be compelled to marry (Cod., v. 4, 14).

(10) See Troplong, De l’Influence du Christianisme sur le Droit Civil.



FOOTNOTES (page 639)

(1) Pt. ii. caus. xxxiii. qu. v. ch. 16.

(2) On this branch of the subject Manssen’s Het Christendom en de. Vrouw (Leyden, 1877) may be consulted with advantage.

(3) Early Law and Custom, ch. v.

(4) See Stiernhöök, De Jure Sveonum (Stockholm, 1612), bk. ii. ch. i.; Messenius, Leges Svecorum (Stockholm, 1714).

(5) Bk. iii. ch. xvi. §§ 1, 2.

(6) The development of the bride-price no doubt was in the same direction. Its original meaning was, however, different. It was the sum paid by the husband to the wife’s family for the purchase of part of the family property, while the morning-gift was paid as pretium virginitatis to the bride herself. In its English form morning-gift occurs in the laws of Canute; in its Latinized form of morgangiva it occurs in the Leges Henrici Primi.

(7) It is remarkable that the great fiefs of France except the Isle of France, the special apanage of the crown, all became in time female fiefs. This is shown by the table at the end of Laboulaye’s Recherches.



FOOTNOTES (page 640)

(1) Early Law and Custom, ch. v.

(2) Rot. Part., vol. iii. p. 12.

(3) Most peeresses are those who have succeeded to ancient peerages by writ. Modern peerages are almost always limited to heirs-male.

(4) Chorlton v. Lings, Law Rep., 4 Common Pleas, 374,




FOOTNOTES (page 641)

(1) This was a rule of law, confirmed, though not for the first time established, by the well_known decision of Lord Thurlow in Countess of Strathmore v. Bowes, in 1789, to the effect that a secret conveyance by a woman during her engagement to her future husband might be set aside by him after marriage. A legal relation was in this case created by engagement or betrothal. The only other instance in English law in which betrothal gives any rights appears to be the action for breach of promise of marriage. In the Mosaic law betrothal was, for the purposes of punishment of adultery, equivalent to marriage (see Deut. xxii 23). In some modern systems betrothal is a matter of more importance than it is in England. In Germany, for instance, it is publicly advertised.

(2) See Re Cameron and Wells, Law Rep., 37 Chancery Div., 39.

(3) A brief sketch of the law relating to this branch of the subject has been added by way of appendix to this article.

(4) It was certainly laid down by the Court of Chancery, in more than one case, that the reason for enforcing acknowledgment of deeds by a married woman apart from her husband was the presumption that in matters of property she was sure to be coerced by him. If such were the truth, the separate acknowledgment—a matter of a few minutes’ conversation—was but a poor safeguard. The doctrine of coercion in felonies is attributed by Mr Justice Stephen to the wish to give women, while they had not benefit of clergy, the same chance of escape as men (see his Digest of the Criminal Law, App., note 1).




FOOTNOTES (page 642)

(1) Reg. v. Lord Mayor of London, Law Rep., 16 Queen’s Bench Div., 772,

(2) The rule of succession to Scottish peerages is different from that regulating the succession to English peerages by writ. In case of the death of a peer leaving several daughters and no son, the English peerage would fall into abeyance among the daughters, but the eldest daughter would succeed to the Scottish peerage. In the peerage law of Scotland there was no presumption that a peerage was limited to males, and the more ancient peerages were often held by females or their husbands in their right.

(3) Brown v. Ingram, 7 Court of Sess. Cases, 3d ser. , 281.

(4) Jex-Blake v. Edinburgh Univ., 11 Court of Sess. Cases, 3d ser., 784.

(5) Lady Literate in Arts.


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The above article was written by: James Williams, D.C.L.; Fellow of Lincoln College, Oxford; Hon. LL.D., Yale; author of The Schoolmaster and the Law, Wills and Succession, The Institutes of Justinian, illustrated by English Law, and other works on legal questions; also of A Lawyer's Leisure, Ethandune, Simple Stories of London, in verse.



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