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A Brief Summary in Plain Language of the Most Important Laws Concerning Women; Together with a Few Observations Thereon . Bodichon, Barbara Leigh Smith, 1827–1891.
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LAWS CONCERNING WOMEN.

LEGAL CONDITION OF UNMARRIED WOMEN OR SPINSTERS.


A single woman.

A SINGLE woman has the same rights to property, to protection from the law, and has to pay the same taxes to the State, as a man.

No political franchise.

Yet a woman of the age of twenty‐one, having the requisite property qualifications, cannot vote in elections for members of Parliament.

Has a parochial vote.

A woman duly qualified can vote upon parish questions, and for parish officers, overseers, surveyors, vestry clerks, &c.

Heiress.

If her father or mother die intestate ( i.e. id est , without a will) she takes an equal share with her brothers and sisters of the personal property i.e. id est , goods, chattels, moveables), but her eldest brother, if she have one, and his children, even daughters, will take the real property, ( i.e. id est , not personal property, but all other, as land, &c.), as the heir‐at‐law; males and their issue being preferred to females; if, however, she have sisters only, then all the sisters take the real property equally. If she be an only child, she is entitled to all the intestate real and personal property.

No public employments.

The church and nearly all offices under government are closed to women. The Post‐office affords some little employment to them; but there is no important office which they can hold, with the single exception of that of Sovereign.

The professions of law and medicine,* whether or not closed by law, are closed in fact. They may engage in trade, and may occupy inferior situations, such as matron of a charity, sextoness of a church, and a few parochial offices are open to them. Women are occasionally governors


Elizabeth Blackwell, M.D., received her diploma in America before she walked St. Bartholomew’s Hospital in London.

page: 4 of prisons for women, overseers of the poor, and parish clerks. A woman may be ranger of a park; a woman can take part in the government of a great empire by buying East India Stock.

Domestic servant.

A servant and a master or mistress are bound by a verbal or written agreement. If no special agreement is made, a servant is held by the common custom of the realm to be hired from year to year, and the engagement cannot be put an end to without a month’s notice on either side.

Seduction.

If a woman is seduced, she has no remedy against the seducer; nor has her father, excepting as he is considered in law as being her master and she his servant, and the seducer as having deprived him of her services. Very slight service is deemed sufficient in law, but evidence of some service is absolutely necessary, whether the daughter be of full age or under age.

These are the only special laws concerning single women: the law speaks of men only, but women are affected by all the laws and incur the same responsibilities in all their contracts and doings as men.

LAWS CONCERNING MARRIED WOMEN.


Marriage.

Matrimony is a civil and indissoluble contract between a consenting man and woman of competent capacity.

Prohibitions.

These marriages are prohibited:—A widower with his deceased wife’s sister; a widow with the brother of her deceased husband; a widower with his deceased wife’s sister’s daughter, for she is by affinity in the same degree as a niece to her uncle by consanguinity; a widower with a daughter of his deceased wife by a former husband; and a widower with his deceased wife’s mother’s sister. Consanguinity or affinity, where the children are illegitimate, is equally an impediment.

A lunatic or idiot cannot lawfully contract a marriage, but insanity after marriage does not make the marriage null and void.

A lunatic may contract a marriage during a lucid interval. Deaf and dumb people may marry by signs.

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The consent of the father or guardians is necessary to the marriage of an infant ( i.e. id est , a person under twenty‐one), unless the marriage takes place by banns. The consent of the mother is not necessary if there be a father or a guardian appointed by him.

Bigamy.

A second marriage while a husband or wife is living is felony, and punishable by transportation.

Breach of promise.

An agreement to marry made by a man and woman who do not come under any of these disabilities is a contract of betrothment, and either party can bring an action upon a refusal to complete the contract in a superior court of Common Law.

Celebration, Banns.

Marriages may be celebrated as a religious ceremony after the requisite public proclamations or banns, or as a secular form.

Civil marriage.

The object of the Act* for authorizing civil marriages was to relieve Dissenters and those who could not conscientiously join in the formulary of the Church. Due provision is made for necessary publicity, and the marriage can be legally contracted in a Register Office.


Superintendent Registrar.

Marriages in the Church of England (without banns or licence), marriages of Quakers, Jews, Dissenters, and Roman Catholics, and marriages according to the civil or secular form, must be preceded by a given notice from of the parties to the Superintendent‐Registrar of the district.

Scotch marriages.

The marriage law of Scotland is founded upon the Canon Law ( i.e. id est , rules drawn from Scriptures and the writings of the Church). In Scotland there are regular and irregular marriages. Irregular marriages are legal without any ceremony, and are of three sorts.

1. By a promise of marriage given in writing or proved by a reference to the oath of the party, followed by consummation.

2. By the solemn mutual declaration of a man and woman, either verbally or in writing, expressing that the parties consent to take each other for husband and wife.

3. By notorious cohabitation as man and wife.

Persons living in England and having illegitimate


6th and 7th of Wm. IV. chap. 85.

page: 6 children, cannot by going to Scotland, there marrying, and then returning, legitimatize their children in England. A domicile (or abiding home) in Scotland, and a marriage of the father and mother, legitimatizes the children in Scotland whenever born.

Foreign marriages valid.

Lawful marriages in foreign countries are valid in England unless they are directly contrary to our laws.

Marriage with a deceased wife’s sister is valid in England, if it has been celebrated in a country where such marriage is legal, provided the parties were at the time of the marriage domiciled in such country.

Married women no legal existence.

A man and wife are one person in law; the wife loses all her rights as a single woman, and her existence is entirely absorbed in that of her husband. He is civilly responsible for her acts; she lives under his protection or cover, and her condition is called coverture.

A husband has a right to the person of his wife.

A woman’s body belongs to her husband; she is in his custody, and he can enforce his right by a writ of habeas corpus.

Her personal property becomes his.

What was her personal property before marriage, such as money in hand, money at the bank, jewels, household goods, clothes, &c., becomes absolutely her husband’s, and he may assign or dispose of them at his pleasure whether he and his wife live together or not.

He takes her chattels real.

A wife’s chattels real ( i.e. id est , estates held during a term of years, or the next presentation to a church living, &c.) become her husband’s by his doing some act to appropriate them; but, if the wife survives, she resumes her property.

Equity.

Equity is defined to be a correction or qualification of the law, generally made in the part wherein it faileth, or is too severe. In other words, the correction of that wherein the law, by reason of its universality, is deficient. While the Common Law gives the whole of a wife’s personal property to her husband, the Courts of Equity, when he proceeds therein to recover property in right of his wife, oblige him to make a settlement of some portion of it upon her, if she be unprovided for and virtuous.

If her property be under 200 l. pound , or 10 l. pound a‐year, a Court of Equity will not interpose.

Her right to support.

Neither the Courts of Common Law nor Equity have any page: 7 direct power to oblige a man to support his wife,—the Ecclesiastical Courts ( i.e. id est Courts held by the Queen’s authority as governor of the Church, for matters which chiefly concern religion) and a Magistrate’s court at the instance of her parish alone can do this.

His power over her real property.

A husband has a freehold estate in his wife’s lands during the joint existence of himself and his wife, that is to say, he has absolute possession of them as long as they both live. If the wife dies without children, the property goes to his heir, but if she has borne a child, her husband holds possession until his death.

A married woman’s earnings not her own but her husband’s.

Money earned by a married woman belongs absolutely to her husband; that and all sources of income, excepting those mentioned above, are included in the term personal property.

A wife’s will.

By the particular permission of her husband she can make a will of her personal property, for by such a permission he gives up his right. But he may revoke his permission at any time before probate ( i.e. id est the exhibiting and proving a will before the Ecclesiastical Judge having jurisdiction over the place where the party died).

A mother’s rights over children.

The legal custody of children belongs to the father. During the life‐time of a sane father, the mother has no rights over her children, except a limited power over infants, and the father may take them from her and dispose of them as he thinks fit.

If there be a legal separation of the parents, and there be neither agreement nor order of the Court, giving the custody of the children to either parent, then the right to the custody of the children (except for the nutriment of infants) belongs legally to the father.

Responsibility of a wife.

A married woman cannot sue or be sued for contracts—nor can she enter into contracts except as the agent of her husband; that is to say, her word alone is not binding in law, and persons giving a wife credit have no remedy against her. There are some exceptions, as where she contracts debts upon estates settled to her separate use, or where a wife carries on trade separately, according to the custom of London, &c.

Responsibility of a hus‐

A husband is liable for his wife’s debts contracted before page: 8


band for his wife’s debts prior to marriage

marriage, and also for her breaches of trust committed before marriage.

Witnesses.

Neither a husband nor a wife can be witnesses against one another in criminal cases, not even after the death or divorce of either.

Wife cannot bring actions.

A wife cannot bring actions unless the husband’s name is joined.

A wife acts under coercion of her husband.

As the wife acts under the command and control of her husband, she is excused from punishment for certain offences, such as theft, burglary, housebreaking, &c., if committed in his presence and under his influence. A wife cannot be found guilty of concealing her felon husband or of concealing a felon jointly with her husband. She cannot be found guilty of stealing from her husband or of setting his house on fire, as they are one person in law. A husband and wife cannot be found guilty of conspiracy, as that offence cannot be committed unless there are two persons.

USUAL PRECAUTIONS AGAINST THE LAWS CONCERNING PROPERTY OF MARRIED WOMEN.


An engaged woman cannot dispose of her property.

When a woman has consented to a proposal of marriage, she cannot dispose or give away her property without the knowledge of her betrothed; if she make any such disposition without his knowledge, even if he be ignorant of the existence of her property, the disposition will not be legal.

Settlements.

It is usual, before marriage, in order to secure a wife and her children against the power of the husband, to make with his consent a settlement of some property on the wife, or to make an agreement before marriage that a settlement shall be made after marriage. It is in the power of the Court of Chancery to enforce the performance of such agreements.

Differences between Common Law and Equity.

Although the Common Law does not allow a married woman to possess any property, yet in respect of property settled for her separate use, Equity endeavours to treat her as a single woman.

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She can acquire such property by contract before marriage with her husband, or by gift from him or other persons.

There are great difficulties and complexities in making settlements, and they should always be made by a competent lawyer.

Indictment for theft.

When a wife’s property is stolen, the property (legally belonging to the husband) must be laid as his in the indictment.

SEPARATION AND DIVORCE.

A husband and wife can separate upon a deed containing terms for their immediate separation, but they cannot legally agree to separate at a future time. The trustees of the wife must be parties to the deed, and agree with the husband as to what property the wife is to take, for a husband and wife cannot convenant together.


Divorce is of two kinds.

Divorce is of two kinds:—

1st. Divorce à mensâ et thoro, being only a separation from bed and board.

2nd. Divorce à vinculo matrimonii, being an entire dissolution of the bonds of matrimony.

The grounds for the first kind of divorce are, 1st. Adultery, 2nd. Intolerable Cruelty, and 3rd. Unnatural Practices. The Ecclesiastical Courts can do no more than pronounce for this first kind of divorce, or rather separation, as the matrimonial tie is not severed, and there is always a possibility of reconciliation.

The law cannot dissolve a lawful marriage; it is only in the Legislature that this power is vested. It requires an act of Parliament to constitute a divorce à vinculo matrimonii, but the investigation rests by usage with the Lords alone, the House of Commons acting upon the faith that the House of Lords came to a just conclusion.

This divorce is pronounced on account of adultery in the wife, and in some cases of aggravated adultery on the part of the husband.

The expenses of only a common divorce bill are between six hundred and seven hundred pounds, which makes page: 10 the possibility of release from the matrimonial bond a privilege of the rich.

A wife cannot be a plaintiff, defendant, or witness in an important part of the proceeding for a divorce, which evidently must lead to much injustice.

LAWS CONCERNING A WIDOW.


Her property.

A widow recovers her real property, but if there be a settlement she is restricted by its provisions. She recovers her chattels real if her husband has not disposed of them by will or otherwise.

A wife’s paraphernalia.

A wife’ paraphernalia ( i.e. id est , her clothes and ornaments) which her husband owns during his lifetime, and which his creditors can seize for his debts, becomes her property on his death.

Her liabilities.

A widow is liable for any debts which she contracted before marriage, and which have been left unpaid during her marriage.

A widow is not bound to bury her dead husband, it being the duty of his legal representative.

A widow’s one‐third.

If a man die intestate, the widow, if there are children, is entitled to one‐third of the personality; if there are no children, to one‐half: the other is distributed among the next of kin, among whom the widow is not counted. If there is no next of kin the moiety goes to the crown.

The husband can, of course, by will deprive a wife of all right in the personality.

Quarantine.

A right is granted in Magna Charta to a widow to remain forty days in her husband’s house after his death, provided she do not marry during that time.

Dower.

A widow has a right to a third of her husband’s lands and tenements for her life. Right of dower is generally superseded by settlements giving the wife a jointure. If she accept a jointure she has no claim to dower.

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LAWS CONCERNING WOMEN IN OTHER RELATIONSHIPS.


Agent.

A woman can act as agent for another, and, as an attorney, legally execute her authority. A wife can so act if her husband do not dissent.

Trustee.

An unmarried woman can be vested with a trust, but if she marry, the complexities and difficulties are great, from her inability to enter alone into deeds and assurances.

Executrix.

A single woman can act as executrix under a will, but a wife cannot accept an executorship without her husband’s consent.

Administratrix.

A woman is capable of holding the office of administratrix to an intestate personality, and administration will be granted to her if she be next of kin to the intestate. But a wife cannot act without the consent of her husband.

If a man place a woman in his house, and treat her as his wife, he is responsible for her debts.

LAWS CONCERNING ILLEGITIMATE CHILDREN AND THEIR MOTHERS.


Maintenance.

A single woman having a child may throw the maintenance upon the putative father, so called to distinguish him from a husband, until the age of thirteen.

The law only enforces the parents to maintain such child, and the sum the father is obliged to pay, after an order of affiliation is proved against him, never exceeds two shillings and sixpence a week.

The mother, as long as she is unmarried or a widow, is bound to maintain such child as a part of her family until such child attain the age of sixteen.

A man marrying a woman having a child or children at the time of such marriage is bound to support them, whether legitimate or not, until the age of sixteen.

Disabilities of a natural child.

The rights of an illegitimate child are only such as he can acquire; he can inherit nothing, being in the law looked page: 12 upon as nobody’s son, but he may acquire property by devise or bequest. He may acquire a surname by reputation, but does not inherit one.

The only incapacity under which he labours is that he cannot be heir‐at‐law nor next of kin to any person, nor can he have collateral heirs, but only lineal descendants; if he acquire property and die without a will, such property will go to the crown unless he have lineal descendants.

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