Women and the Law in Victorian England


‘By marriage’, according to Sir William Blackstone’s Commentaries on the Laws
of England
 (Oxford, 1765-69, ‘the husband and wife are one person in law:
that is, the very being or legal existence of the woman is suspended during her marriage,
or at least is incorporated or consolidated into that of her husband, under whose wing,
protection and cover, she performs everything.’

This system of coverture underpinned the laws of Victorian England so far as they
related to married women. In effect, a woman surrendered her legal existence on
marriage. The various amendments to this position during the nineteenth century were
piecemeal rather than systematic.


On marriage, the control of and income from a woman’s real property, that is, property
held in the form of freehold land, passed under the common law to her husband, though
he could not dispose of it without her consent. Her personal property, that is, money
from earnings or investments, and personal belongings such as jewellery, passed absolutely
into his control, and she could part with them only with his consent; he could, for example,
overrule any bequests she made of her personal property. To evade these provisions
under the common law, it was necessary to agree a marriage settlement under equity law.

The Divorce and Matrimonial Causes Act of 1857 (see below) denied the husband his
right to the earnings of a wife he had deserted, and returned to a woman divorced or
legally separated the property rights of a single woman. The Married Woman’s
Property Act
 of 1870 allowed women to keep earnings or property acquired after
marriage; a further Married Woman’s Property Act in 1882 allowed women to retain
what they owned at the time of marriage.

The property laws before 1882 had further significant consequences, related
to the fiction of the legal identity of husband and wife; a married woman could not
sue or be sued — if, for example, she felt herself to be libelled, her husband could
sue and claim for damages, because he was the only injured party, but she could
not. Correspondingly, he became liable for her debts and contracts, and for any
breaches of the law committed by her before or during their marriage since it was
held that she acted only under her husband’s direction (it was this provision that
made Dickens’ Mr Bumble declare that the law is as an ass). Married women held
the same legal status as criminals, minors and the insane.

Post-1882 the possibility of success in the campaign for women’s suffrage
was greatly improved, since one powerful argument against it — that a married
woman was simply an extension of her husband, so that married men would in
effect have two votes — was now made less plausible.


These ‘little ambassadors of the familiar and the expected’, as one feminist
called them late in the century, were also the property of the husband. An Act of
1839 allowed an innocent wife custody of her children under the age of seven years
(raised to sixteen years in 1873). The Infants Custody Act of 1886 made the welfare
of the children the determining factor in deciding questions of custody, but even
then the father remained during his lifetime the sole legal guardian.

Consistently with these provisions, a woman’s body was also held to belong
to her husband. It was not until 1891 that a High Court ruling denied the husband
the right to imprison his wife in pursuit of his conjugal rights (it was not until 1991
that a similar ruling denied him the right to rape her).


Before the Divorce and Matrimonial Causes Act of 1857 divorces could
only be obtained in England through a cumbersome process involving a suit by the
husband against another man for ‘criminal conversation’ (i.e., for compromising his
wife, and therefore diminishing her value, so that he could claim damages), then
an ecclesiastical divorce which did not allow the right of re-marriage, and finally a
private Act of Parliament which separated the parties ex vinculis matrimonii (from
the chains of marriage) and did allow re-marriage. The 1857 Act was designed (in
effect) to allow moderately wealthy men to divorce their wives. A woman could
be divorced on the simple grounds of her adultery (her adultery threatened his
ability to pass his property to his male heirs), whereas a woman had to prove
adultery aggravated by desertion (for two years), or by cruelty, rape, sodomy,
incest or bigamy. The husband could claim damages against the adulterous third
party, the wife could not. There was no provision for consensual divorce, so (for
example) the divorce granted Jude and Sue in Jude the Obscure would have been
invalid since they were not in fact adulterous; and they would have been in breach
of the law in allowing it to be supposed that they were.

This was the law until 1923, when the grounds of divorce were made the
same for both sexes. Until Legal Aid was available after 1949 divorce remained
expensive, and the less well-to-do had to make use of the Matrimonial Causes Act
of 1878 which allowed a less costly judicial separation but without the right of re-


The Contagious Diseases Acts (1864, 1866, 1869) were introduced in
order to protect members of the home forces from sexually transmitted diseases.
In their final form, they provided that where a woman was believed to be acting as
a ‘common prostitute’ (a term not defined in the Act) within ten miles of one of
eighteen specified naval and garrison towns, she could be reported to a magistrate
and obliged to attend for inspection at hospitals (‘Lock ups’) created for the
purpose, If found to be diseased, she could be detained for up to nine months for
treatment; refusal to attend could be met with forcible examination (labelled
‘instrumental rape’ by opponents of the Acts) or by imprisonment. The Acts were
repealed in 1886, following a campaign led by Josephine Butler.

Incident to this campaign was another, to raise the age of consent from 12 to
13 in 1875, and then to 16 in 1885. The Criminal Law Amendment Act of 1885
followed the exposure by the journalist W. T. Stead of a trade in child prostitution
(to prove the trade took place, Stead bought a child of 13 and took her abroad — in
fact to a safe hostel — but was himself sent to prison). The facts about male
sexuality disclosed by the campaigns of Josephine Butler and Stead, among others,
helped to radicalise a number of women, though it should be remembered that
most of those working in both causes were less concerned with liberation than with
moral rearmament. The new law offered coercion as well as protection; it was
under this legislation that Oscar Wilde was sentenced a decade later, and there was
pressure for the age of consent to be raised to twenty-one.


Campaigns to improve women’s education continued throughout the
century, strengthened by the imbalance of numbers between men and women
(there were roughly half a million more women than men). Queen’s and Bedford
Colleges at London University offered women education at the end of the 1840s,
colleges for women at Oxford and Cambridge began in the 1860s and 1870s, while
the Girls’ Public Day School Trust, Cheltenham’s Ladies College and other new
institutions sought to improve the intellectual training offered to girls in their
teens. Resistance to these developments came especially from the medical
profession, who argued that the physical demands of menstruation and the
intellectual demands of study were incompatible, and that educated women would
become necessarily the mothers of a ‘puny, enfeebled, and sickly race’. Key texts in
this debate are to be found in the Fortnightly Review for 1874, by Henry Maudsley
and Elizabeth Garret Anderson (the first woman doctor), under the title ‘Sex in
Mind and Education’.

Fuller information on these issues is given in my chapter on ‘Women and
Marriage in Victorian England’, in Marriage and Property, edited Elizabeth M.
Craik (Aberdeen U.P., 1984), pp 159-189.