Husband and wife. Pollock and Maitland, ii, 399-436.
Blackstone, i, ch 15. Bryce, pp. 818-830.
We are ready now to observe the status of women in marriage. The question of their legal rights in this relation offers the most illuminating insight into their conditions in the various epochs of history. Matrimony is a state over which the Church has always asserted special jurisdiction. By the middle of the twelfth century it was law in England that to it belonged this prerogative. The ecclesiastical court, for example, pronounced in a given case whether there had been a valid marriage or not; the temporal court took this decision as one of the bases for determining a matter of inheritance, whether a woman was entitled to dower, and the like. The general precepts laid down by canon law in the case of a wife have already been noted. These rules need now to be supplemented by an account of the position of women in marriage under the common law.
Under the older common law the husband was very much lord of all he surveyed and even more. An old enactment thus describes a husband's duty[[395]]: "He shall treat and govern the aforesaid A well and decently, and shall not inflict nor cause to be inflicted any injury upon the aforesaid A except in so far as he may lawfully and reasonably do so in accordance with the right of a husband to correct and chastise his wife." Blackstone, who wrote in 1763, has this to say on the husband's power to chastise his wife: "The husband also, 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 intrust him with this 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 master or 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.[[396]] The civil law gave the husband the same, or a larger, authority over his wife; allowing him for some misdemeanours flagellis et fustibus acriter verberare uxorem [to give his wife a severe beating with whips and clubs]; for others, only modicam castigationem adhibere [to apply moderate correction]. But with us 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." Doubtless what Mr. Weller, Sr., describes as the "amiable weakness" of wife-beating was not necessarily confined to the "lower rank." For instance, some of the courtly gentlemen of the reign of Queen Anne were probably not averse to exercising their old-time prerogative. Says Sir Richard Steele (Spectator, 479): "I can not deny but there are Perverse Jades that fall to Men's Lots, with whom it requires more than common Proficiency in Philosophy to be able to live. When these are joined to men of warm Spirits, without Temper or Learning, they are frequently corrected with Stripes; but one of our famous Lawyers is of opinion, That this ought to be used sparingly." The law was, indeed, even worse than might appear from the words of Blackstone. The wife who feared unreasonable violence could, to be sure, bind her husband to keep the peace; but she had no action against him. A husband who killed his wife was guilty of murder, but the wife who slew her husband was adjudged guilty of petty treason; and whereas the man would be merely drawn and hanged, the woman, until the reign of George III, was drawn and burnt alive.[[397]]
The right of a husband to restrain a wife's liberty may not be said to have become completely obsolete until the case of Reg. v. Jackson in 1891.[[398]] Wife-beating is still a flagrantly common offence in England.
Wife's property in marriage.
Turning now to the question of the wife's property in marriage, we shall be forced to believe that Blackstone was an optimist of unusual magnitude when he wrote that the female sex was "so great a favourite of the laws of England." Not to weary the reader by minute details, I cannot do better than give Messrs. Pollock and Maitland's excellent summary of the final shape taken by the common law— a glaring piece of injustice, worthy of careful reading, and in complete accord with Apostolic injunctions: "I. In the lands of which the wife is tenant in fee, whether they belonged to her at the date of the marriage or came to her during the marriage, the husband has an estate which will endure during the marriage, and this he can alienate without her concurrence. If a child is born of the marriage, thenceforth the husband as 'tenant by courtesy' has an estate which will endure for the whole of his life, and this he can alienate without the wife's concurrence. The husband by himself has no greater power of alienation than is here stated; he cannot confer an estate which will endure after the end of the marriage or (as the case may be) after his own death. The wife has during the marriage no power to alienate her land without her husband's concurrence. The only process by which the fee can be alienated is a fine to which both husband and wife are parties and to which she gives her assent after a separate examination.
"II. A widow is entitled to enjoy for her life under the name of dower one third of any land of which the husband was seised in fee at any time during the marriage. The result of this is that during the marriage the husband cannot alienate his own land so as to bar his wife's right of dower, unless this is done with her concurrence, and her concurrence is ineffectual unless the conveyance is made by fine." [This inconvenience for an unscrupulous husband was evaded in modern conveyancy by a device of extreme ingenuity finally perfected only in the eighteenth century. Professor James Bryce remarks (p. 820): "As this right (i.e., the right of dower) interfered with the husband's power of freely disposing of his own land, the lawyers at once set about to find means of evading it, and found these partly in legal processes by which the wife, her consent being ascertained by the courts, parted with her right, partly by an ingenious device whereby lands could be conveyed to a husband without the right of dower attaching to them, partly by giving the wife a so-called jointure which barred her claim.">[
"III. Our law institutes no community, even of movables, between husband and wife. Whatever movables the wife has at the date of the marriage become the husband's, and the husband is entitled to take possession of and thereby to make his own whatever movables she becomes entitled to during the marriage, and without her concurrence he can sue for all debts that are due her. On his death, however, she becomes entitled to all movables and debts that are outstanding, or (as the phrase goes) have not been 'reduced into possession.' What the husband gets possession of is simply his; he can freely dispose of it inter vivos or by will. In the main, for this purpose as for other purposes, a 'term of years' is treated as a chattel, but under an exceptional rule the husband, though he can alienate his wife's 'chattel real' inter vivos, cannot dispose of it by his will. If he has not alienated it inter vivos, it will be hers if she survives him. If he survives her, he is entitled to her 'chattels real' and is also entitled to be made the administrator of her estate. In that capacity he has a right to whatever movables or debts have not yet been 'reduced into possession' and, when the debts have been paid, he keeps these goods as his own. If she dies in his lifetime, she can have no other intestate successor. Without his consent she can make no will, and any consent that he may have given is revocable at any time before the will is proved.
"IV. Our common law—but we have seen that this rule is not very old—assured no share of the husband's personality to the widow. He can, even by his will, give all of it away from her except her necessary clothes, and with that exception his creditors can take all of it. A further exception, of which there is not much to be read, is made of jewels, trinkets, and ornaments of the person, under the name of paraphernalia. The husband may sell or give these away in his lifetime, and even after his death they may be taken for his debts; but he cannot give them away by will. If the husband dies during the wife's life and dies intestate she is entitled to a third, or, if there be no living descendant of the husband, to one half of his personality [but see the note of Bryce, above]. But this is a case of pure intestate succession; she only has a share of what is left after payment of her husband's debts.
"V. During the marriage the husband is in effect liable to the whole extent of his property for debts incurred or wrongs committed by his wife before the marriage, also for wrongs committed during the marriage. The action is against him and her as co-defendants. If the marriage is dissolved by his death, she is liable, his estate is not. If the marriage is dissolved by her death, he is liable as her administrator, but only to the extent of the property which he takes in that character." [Mr. Ashton, in his very interesting book, p. 31, quotes a peculiar note from a Parish Register in the reign of Queen Anne to this effect: "John Bridmore and Anne Sellwood, both of Chiltern all Saints, were married October 17, 1714. The aforesaid Anne Sellwood was married in her Smock, without any clothes or headgier on." "This is not uncommon," remarks Mr. Ashton, "the object being, according to a vulgar error, to exempt the husband from the payment of any debts his wife may have contracted in her ante-nuptial condition. This error seems to have been founded on a misconception of the law, as it is laid down 'the husband is liable for the wife's debts, because he acquires an absolute interest in the personal estate of his wife.' An unlearned person from this might conclude, and not unreasonably, that if his wife had no estate whatever he could not incur any liability.">[