Chapter XIV: Gradual Amendment of the English Matrimonial Law

However, the Courts of Equity ultimately set themselves in England to improve the wife’s condition. They recognized some contracts and grants between husband and wife. They allowed property to be given to trustees for the sole and separate use of a wife; and if it was given to her with an obvious intent that it should be for her exclusive benefit, they held the husband, in whom by operation of the general law it would vest, to be a trustee for the wife. When during marriage there came to a wife by will or descent any property of which the husband could obtain possession only by the help of a Court of Equity, they required him to settle a reasonable part of it upon the wife for her separate use. And in respect of her separate property, they furthermore permitted the wife to sue her husband, or to be sued by him. While these changes were in progress, there had grown up among the wealthier classes the habit of making settlements on marriage which secured to the wife, through the instrumentality of trustees, separate property for her sole use, and wherever a woman was a ward of Court, the Court insisted, in giving its consent to the marriage, that such a settlement should be made for her benefit.

By these steps a change had been effected in the legal position of women as regards property similar to, though far more gradual, and in its results falling far short of, the change made at Rome when the marriage without Hand power became general. But in England a recourse to the Courts has always been the luxury of the rich; and as the middle and poorer classes were not wont to go to the Courts, or to make settlements, it was only among the richer classes that the wife’s separate estate can be said to have existed. At last, however, the gross injustice of allowing a selfish or wasteful husband to seize his wife’s earnings and neglect her was so far felt that several Acts were passed (the first in 1857), under which a woman deserted by her husband may obtain from a magistrate a judicial order, protecting from him any property she may acquire after desertion. By this time an agitation had begun to secure wider rights for married women. It had great difficulties to overcome in the conservative sentiment of lawyers, and of those who are led by lawyers, and more especially of members of the House of Lords. Not till 1870 did the British Parliament take the step which the Romans had taken long before the Christian era, and which many American States had taken in the first half of the nineteenth century. A statute of that year, amended and extended by others of 1874 and 1882, swept away the old rule which carried all the wife’s property over to the husband by the mere fact of marriage; so that now whatever a woman possesses at her marriage, or receives after it, or earns for herself, remains her own as if she were unmarried, while of course the husband no longer becomes liable by marriage to her ante-nuptial debts. By these slow degrees has the English wife risen at last to the level of the Roman. The practice of making settlements on marriage still remains, especially where the wife’s property is large, or where there is any reason to distrust the bridegroom; for though the interposition of trustees is no longer needed to keep the property from falling by operation of law into the husband’s grasp, he may still press or persuade her to part with it, since she now enjoys full disposing power, and if she does part with it, she and the children may suffer. Thus custom sustains in England, and perhaps will long sustain, a system resembling that of the Roman _Dos_. Yet the number of persons possessing some property who marry without a settlement increases, as does the number of women whose strength of will and knowledge of business enables them to hold their own against marital coaxing or coercion.

It need hardly be said that the personal liberty of the wife was established long before her right to separate property. Says Blackstone (writing in 1763):—

‘The husband by the old law might give his wife moderate correction.
For as he is to answer for her misbehaviour, the law thought it
reasonable to entrust him with his power of restraining her, by
domestic chastisement, in the same moderation that a man is allowed to
correct his apprentices or children, for whom the parent is also
liable in some cases to answer. But this power of correction was
confined within reasonable bounds, and the husband was prohibited from
using any violence to his wife _aliter quam ad virum, ex causa
regiminis et castigationis uxoris suae, licite et rationabiliter
pertinet_. But in the politer reign of Charles the Second this power
of correction began to be doubted, and a wife may now have security of
the peace against her husband, or, in return, a husband against his
wife. Yet the lower rank of people, who were always fond of the old
common law, still claim and exert their ancient privilege; and the
Courts of Law will still permit a husband to restrain a wife of her
liberty in case of any gross misbehaviour[209].’

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Footnote 209:

Blackstone, _Commentaries_, vol. i. bk. i. chap. 15.

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This touching attachment to their old common law still survives among ‘the lower rank of people’ in the form of wife beating. But among the politer classes the right to restrain a consort’s liberty (except under very special circumstances) may be deemed to have become exploded since the case of _Reg._ v. _Jackson_ in 1891[210]. So that now the English wife, like the Roman, may quit her husband’s house when she pleases, and the suit for restitution of conjugal rights, whereby either could compel the other to live in the common household, is falling into disuse, if indeed it can still be described as in any sense effective since the Act, passed in 1884, which took away the remedy by attachment.

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Footnote 210:

1 Q. B. p. 671 (in the Court of Appeal). The judgements are
instructive. The Master of the Rolls goes so far as to doubt whether
the husband ever had a legal power of correction, a curious instance
of the way in which the sentiment of a later time sometimes tries to
force upon the language of an older time a non-natural meaning, the
new sentiment being one which the older time would have failed to
understand. It would have been simpler to admit that what may well
have been law in the seventeenth century is not to be taken to be law
now, manners and ideas having so completely changed as to render the
old rules obsolete.

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The interest which belongs to these changes in the law, changes generally similar in their result in the English and in the Roman systems, though far more gradually made in the former than in the latter, is the interest of observing the methods whereby custom and legislation have sought to work out different possible theories of the marriage relation. There are usually said to be two theories, that of Mastery, and that of Equality. On the former the husband is lord of the wife’s property as well as of her person. The law puts her at his mercy, trusting that affection, public opinion, and a regard for domestic comfort will restrain the exercise of his rights. On the other theory, each consort is a law to him- or herself, each can dispose of his or her property, time, and local presence without the assent of the other. The law allows this freedom in the hope that affection, respect, and the opinion of society will prevent its abuse. Yet these two theories, that with which both Rome and England began, that with which both Rome and England have ended, do not exhaust the possibilities of the relation. For there is a third theory which, more or less consciously felt to be present, has influenced both the one and the other, creating a sort of compromise between them. It is the theory of a partnership in social life and in property similar to the partnership which necessarily exists as regards the children of a marriage. This idea is expressed by the form which the Mastery theory took when it declared husband and wife to be ‘one person in the law,’ and in the Anglican marriage service where the wife’s promise to obey[211] is met by the husband’s declaration that he endows her with all his worldly goods. It also qualifies the theory of Equality and Independence by the practice of creating a settlement in England, and a _Dos_ (and _Donatio propter nuptias_) at Rome, in which each of the married pair has an interest.

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Footnote 211:

This promise does not appear in the forms of marriage service commonly
used by the unestablished churches of England, or most of them.

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Any one can see that the Mastery theory, against which modern sentiment revolts, was more defensible in a time of violence, when protection for life and property had to be secured by physical force as well as by recourse to the law, than it is to-day. Any one can also see that there are even to-day households for which the Mastery theory may be well suited, as there also are, and always have been, even in days of rudeness and in Musulman countries, other households where the wife was, and rightly was, the real head of the family. Those moreover who, judging of other times by their own, think that the position of the wife and of women generally must have been, under the Mastery theory, an intolerable one, need to be reminded not only that the practical working of family life depends very largely on the respective characters of the persons within the family, and on the amount of affection they entertain for one another, but also that it is profoundly modified by the conception of their relations which rules the minds of these persons. Law, itself the product and the index of public opinion, moulds and solidifies that conception, and the wife of the old stern days of marital tyranny saw no indignity or hardship in that position of humble obedience which the independent spirit of our own time resents.