"VI. During the marriage the wife cannot contract on her own behalf. She can contract as her husband's agent and has a certain power of pledging his credit in the purchase of necessaries. At the end of the Middle Ages it is very doubtful how far this power is to be explained by an 'implied agency.' The tendency of more recent times has been to allow her no power that cannot be thus explained, except in the exceptional case of desertion."
A perusal of these laws shows that they are immensely inferior to the Roman law, which not only gave the wife full control of her property, but protected her from coercion and bullying on the part of the husband. The amendment of these injustices has been very recent indeed. Successive statutes in 1870, 1874, and 1882[[399]] finally abrogated the law which gave the husband full ownership of his wife's property by the mere act of marriage. Beginning with the year 1857, too, enlightenment in England had progressed to such a remarkable degree that certain acts were passed forbidding a husband to seize his wife's earnings and neglect her[[400]]; and she was actually allowed to keep her own wages after the desertion of her lord. Before that time he might desert his wife repeatedly, and return from time to time to take away her earnings and sell everything she had acquired. An act in 1886 (49 and 50 Vict., c. 52) gave magistrates the power to order a husband to pay his wife a weekly sum, not exceeding two pounds, for her support and that of the children if it appeared to the magistrates that the deserting husband had the means of maintaining her, but was unwilling to do so. Still, the husband can at any time terminate his desertion and force his wife to take him back on penalty of losing all rights to such maintenance. There was frantic opposition to all of these revolutionary enactments and many prophets arose crying woe; but the acts finally passed and England still lives.
Divorce. Authorities as above; and Howard, ii, 3-117.
Until the Reformation divorce was regulated by the canon law in accordance with the principles which I have explained. After the Reformation the matter at once assumed a different aspect because all Protestants agreed in denying that marriage is a sacrament. Scotland in this as in other respects has been more liberal than England; as early as 1573 desertion as well as adultery had become grounds for divorce. But in England the force of the canon law continued. In Blackstone's day there were still, as under the canon law, only two kinds of separation. Complete dissolution of the marriage tie (a vinculo matrimonii) took place only on a declaration of the Ecclesiastical Court that on account of some canonical impediment, like consanguinity, the marriage was null and void from the beginning. Separation "from bed and board" (a mensa et thoro) simply gave the parties permission no longer to live together and was allowed for adultery or some other grave offences, like intolerable cruelty or a chronic disease. However, some time before Blackstone's day it had become the habit to get a dissolution of marriage a vinculo matrimonii for adultery by Act of Parliament; but the legal process was so tedious, minute, and expensive that only the very rich could afford the luxury.[[401]] In the case of a separation a mensa et thoro alimony was allowed the wife for her support out of her husband's estate at the discretion of the ecclesiastical judges.
The initiative in divorce by Act of Parliament was usually taken by the husband; not until 1801 did a woman have the temerity so to assert her rights. The fact is, ever since the dawn of history society has, with its usual double standard of morality for men and women, insisted that while the husband must never tolerate infidelity on the part of the wife, the wife should bear with meekness the adulteries of her husband. Plutarch in his Conjugal Precepts so advises a wife; and this pious frame of mind has continued down the centuries to the present day. Devout old Jeremy Taylor in his Holy Living—a book which is read by few, but praised by many—thus counsels the suffering wife[[402]]: "But if, after all the fair deportments and innocent chaste compliances, the husband be morose and ungentle, let the wife discourse thus: 'If, while I do my duty, my husband neglects me, what will he do if I neglect him?' And if she thinks to be separated by reason of her husband's unchaste life, let her consider that the man will be incurably ruined, and her rivals could wish nothing more than that they might possess him alone." Dr. Samuel Johnson ably seconded the holy Jeremy's advice by declaring that there is a boundless difference between the infidelity of the man and that of the woman. In the husband's case "the man imposes no bastards upon his wife." Therefore, "wise married women don't trouble themselves about infidelity in their husbands."[[403]] Until very recent times not only men but also women have been unanimous in counselling abject submission to and humble adoration of the husband. A single example out of hundreds will serve excellently as a pattern. In 1821 a "Lady of Distinction" writes to a "Relation Shortly after Her Marriage" as follows[[404]]: "The most perfect and implicit faith in the superiority of a husband's judgment, and the most absolute obedience to his desires, is not only the conduct that will insure the greatest success, but will give the most entire satisfaction. It will take from you a thousand cares, which would have answered to no purpose; it will relieve you from a weight of thought that would be very painful, and in no way profitable.... It has its origin in reason, in justice, in nature, and in the law of God.... I have told you how you may, and how people who are married do, get a likeness of countenance; and in that I have done it. You will understand me, that by often looking at your husband's face, by smiling on the occasions on which he does, by frowning on those things which make him frown, and by viewing all things in the light in which you perceive he does, you will acquire that likeness of countenance which it is an honour to possess, because it is a testimony of love.... When your temper and your thoughts are formed upon those of your husband, according to the plan which I have laid down, you will perceive that you have no will, no pleasure, but what is also his. This is the character the wife of prudence would be apt to assume; she would make herself the mirror, to show, unaltered, and without aggravation, diminution, or distortion, the thoughts, the sentiments, and the resolutions of her husband. She would have no particular design, no opinion, no thought, no passion, no approbation, no dislike, but what should be conformable to his own judgment ... I would have her judgment seem the reflecting mirror to his determination; and her form the shadow of his body, conforming itself to his several positions, and following it in all its movements ... I would not have you silent; nay, when trifles are the subject, talk as much as any of them; but distinguish when the discourse turns upon things of importance."
It is not strange, therefore, that no woman protested publicly against a husband's infidelity until 1801. Up to 1840 there were but three cases of a woman's taking the initiative in divorce, namely, in 1801, 1831, and 1840; and in each case the man's adultery was aggravated by other offences. In two other suits the Lords rejected the petition of the wife, although the misconduct of the husband was clearly proved. But redress was still by the elaborate machinery of Act of Parliament and hence a luxury only for the wealthy until 1857, when a special Court for Divorce and Matrimonial Causes was established.[[405]] Nevertheless, the law as it stands to-day is not of a character to excite admiration or to prove the existence of the proverbial "British Fair Play." A husband can obtain a divorce upon proof of his wife's infidelity; but the wife can get it only by proving, in addition to the husband's adultery, either that it was aggravated by bigamy or incest or that it was accompanied by cruelty or by two years' desertion. Misconduct by the husband bars him from obtaining a divorce. The court is empowered to regulate at its discretion the property rights of divorced people and the custody of the children.[[406]] All attempts have failed to make the law recognise that the misconduct of the husband shall be regarded equally as culpable as the wife's.
Rape and the age of legal consent.
We may pause a moment to glance at the provisions made by the criminal law for protecting women. The offence that most closely touches women is rape. The punishment of this in Blackstone's day was death[[407]]; but in the next century the death penalty was repealed and transportation for life substituted.[[408]] The saddest blot on a presumably Christian civilisation connected with this matter is the so-called "age of legal consent." Under the older Common Law this was ten or twelve; in 1885 it was thirteen, at which period a girl was supposed to be at an age to know what she was doing. But in the year 1885 Mr. Stead told the London public very plainly those hideous truths about crimes against young girls which everybody knew very well had been going on for centuries, but which no one ever before had dared to assert. The result was that Parliament raised the "age of legal consent" to sixteen, where it now stands.[[409]] The idea that any girl of this age is sufficiently mature to know what she is doing by consenting to the lust of scoundrels is a fine commentary on the acuteness of the legal intellect and the high moral convictions of legislators.
Women's rights to an education.
The rights of women to a higher education is distinctly a movement of the last half of the nineteenth century. It is true that throughout history there are many examples of remarkably well-educated women—Lady Jane Grey, for example, or Queen Elizabeth, or Olympia Morata, in Italy, she who in the golden period of the Renaissance became a professor at sixteen and wrote dialogues in Greek after the manner of Plato. But on looking closely into these instances we shall find first that these ladies were of noble rank and only thanks to their lofty position had access to knowledge; and secondly that they stand out as isolated cases—the great masses of women never dreamed beyond the traditional Kleider, Küche, Kinder, and Kirche. That an elementary education, consisting of reading, writing, and simple arithmetic, was offered them freely by hospital, monastery, and the like schools even as early as Chaucer—this we know; nevertheless, beyond that they were not supposed to aspire. So very recently, indeed, have women secured the rights to a higher education that many thousands to-day can easily recall the intensely bitter attacks which were directed against colleges like Wellesley and Bryn Mawr in their inception. Until the middle of the nineteenth century the whole education—what there was of it—of a girl was arranged primarily with a view to capture a husband and, once having him secure, to be his loving slave, to dwell with adoring rapture on his superior learning, and to be humbly grateful if her liege deigned from time to time to throw his spouse some scraps of knowledge which might be safely administered without danger of making her think for herself. These facts no one can well deny; but a few instances of prevalent opinion, in addition to those which I have already quoted, will afford the amusement of concrete examples.