The History of the Legal Emancipation of Married Women
(by particular reference to the marriage of George and Caroline Norton in 1827)
On this week’s Law & Disorder, we’re taking a journey back into the past, to look at the case of Caroline Norton and the long-term impacts of that case on the law. Please listen below and enjoy this note from Sir Nicholas Mostyn.
The History of the Legal Emancipation of Married Women
(by particular reference to the marriage of George and Caroline Norton in 1827. A note by Sir Nicholas Mostyn.)
Summary of the position of a married woman[1] in 1827
She had no right to hold property or income independently. Subject to a marriage settlement, all her property and income inured to her husband
She could be raped by him with impunity
She could be imprisoned by him if disobedient
She could not give evidence for or against him
She could not sue him for maintenance (but could pledge his credit for necessaries)
If she left him, she could be ordered to return to him on pain of imprisonment
She could not obtain a divorce
She had no rights to custody of, or access to, her children
She could seek a judicial separation on ground of cruelty or adultery. Cruelty required proof of bodily harm If she was awarded a decree, she could get reasonable, even generous, alimony, but not if her claim was refused or if she was at fault.
She could not share in the matrimonial property
She could not vote in local or parliamentary elections*
She could not be a member of any of the learned professions, including the law, and could not hold public office, including judicial office, nor could she act as a juror*
*these applied to all women, not just married women
This was the dismal status – the “chattel existence” – that the 19-year-old Caroline Sheridan willingly accepted when she married George Norton.
The marriage of George and Caroline Norton
She was the granddaughter of the playwright Sheridan. He was the son of Lord Grantley. They moved in exalted circles. They were married in 1827. She was 19. They had 3 sons. In 1836 she left him having suffered many instances of violence at his hands, taking with her the children aged 7, 5 and 3. The children were then forcibly taken from her by her husband, as the law allowed, and she was denied access to them. She tried to live off her earnings as an author, but he tried to appropriate these, as the law allowed. She therefore augmented her economy by pledging his credit for necessaries, as the law allowed. Large advertisements placed by him in The Times denying liability for her debts were of no legal effect.
George then accused Lord Melbourne, the Prime Minister, of having an affair with Caroline. He sensationally sued Lord Melbourne for “criminal conversation” (as adultery was called) shortly after the separation claiming damages of £10,000 (£1.5 million in today’s money).
The claim was brought as an action in trespass to goods, on the basis that a wife was her husband’s property. As an Irish judge explained to a jury as recently as June 1972 in the case of Braun v Roche (the cause of action was not abolished in Ireland until 1981) a wife was “something that the husband owned”, and he ought to be compensated for her loss “just as you would compensate him for [the loss of] a thoroughbred mare or cow.”
Caroline was not allowed to be a party and to be represented in those proceedings. You could therefore no more join a wife to legal proceedings than a horse. Moreover, as the wife of the plaintiff she was debarred from giving evidence.
In June 1836 the case came for trial in the Court of Common Pleas before Tindal CJ and a jury. The trial lasted for one long day (9.30 am – 11.40 pm)[2].
The jury found for the defendant without leaving the jury-box.
Caroline, an accomplished author and poet, became a social reformer and was actively involved in lobbying for reform of the child custody laws which resulted in the landmark Custody of Infants Act 1839.
With the pioneering feminist and activist Barbara Bodichon, Caroline actively lobbied for divorce reform. In 1854 she wrote a pamphlet entitled English Laws for Women in the Nineteenth Century which she circulated to MPs. It began with a (slightly modified) quotation from Bleak House: “It won’t do have Truth and Justice on our side; We must have Law and Lawyers”[3] She then wrote “I take these words as my text”. It is a remorseless exposition of the injustices of English law where married women are concerned. In it she said: “I desire to prove, not my own suffering or his injustice, but that the present law of England cannot prevent any such suffering or control any such injustice.”
She followed that up with another pamphlet A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill which covered much the same ground, but which railed against the proposal to have one divorce law for the husbands and a different, stricter one for the wives. Yet that is what was enacted. It was not until 1923 that the grounds of divorce for husbands and wives were equiperated.
When Parliament debated divorce reform in 1855, she submitted to MPs a detailed account of her own marriage, describing the difficulties faced by married women under existing laws. She said:
“An English wife may not leave her husband's house. Not only can he sue her for restitution of "conjugal rights," but he has a right to enter the house of any friend or relation with whom she may take refuge...and carry her away by force...
If her husband takes proceedings for a [judicial separation], she is not, in the first instance, allowed to defend herself...She is not represented by attorney, nor permitted to be considered a party to the [criminal conversation] suit between him and her supposed lover, for "damages."
If an English wife be guilty of infidelity, her husband can divorce her [by private Act of Parliament] so as to marry again; but she cannot divorce the husband, a vinculo, however profligate he may be....
Those dear children, the loss of whose pattering steps and sweet occasional voices made the silence of [my] new home intolerable as the anguish of death...what I suffered respecting those children, God knows ... under the evil law which suffered any man, for vengeance or for interest, to take baby children from the mother.”
Her lobbying contributed to the breakthrough Matrimonial Causes Act 1857 which for the first time allowed judicial divorce. It was however a system grossly weighted against wives: they could only divorce their husbands for aggravated adultery or other grave misconduct; they could divorce their wives for adultery alone.
Caroline was influential, but not active, in the agitation for reforms which led to the Married Women’s Property Act 1870.
Although she campaigned hard against unjust family laws, sadly she was not a proto-feminist and did not believe in the equality of the sexes. In an article in The Times in 1838 she wrote:
"The natural position of woman is inferiority to man. Amen! That is a thing of God's appointing, not of man's devising. I believe it sincerely, as part of my religion. I never pretended to the wild and ridiculous doctrine of equality”
In English Laws she wrote:
“Masculine superiority is incontestable, and with the superiority should come protection”
which is disappointing, to put it mildly.
It was not until George died in 1875 that she was freed from her marriage to him. They had been at daggers drawn for nearly 40 years.
In March 1877, when in very poor health, she married an old friend, the Scottish historical writer and politician Sir William Stirling-Maxwell, but died in London three months later aged 69.
The legal attributes of the Norton marriage and its breakdown
In 1827 a married woman was subject to the barbarous doctrine of coverture whereby she was legally subsumed by her husband bodily and economically. The effects of this doctrine are almost unimaginable today.
The bodily subsummation meant that the husband could force himself on the wife irrespective of her objections. She was, after all, his property.
The economic subsummation meant that all her property and income, including her earnings, vested in him. In Caroline’s novel Stuart of Dunleath (1851) the odious husband, Sir Stephen Penrhyn, accurately says to the saintly Eleanor “Everything that’s yours is mine. The law doesn’t admit to a married woman a farthing’s worth of property.”
Marriage contracts
However, negotiations for a marriage would often involve a trust being established, either by the wife’s parents, or by the husband by way of payment of dowry, the property and income of which would be for the wife’s separate use, thus giving her some degree of independence[4]. Here is the first plate of Hogarth’s Marriage a la mode - The Marriage Contract showing the parents of the miserable parties to an arranged marriage negotiating with their lawyers the terms of the marriage settlement.
Duty to cohabit
The doctrine of coverture required the parties to cohabit. If one spouse walked out, the other spouse could seek a decree of restitution of conjugal rights from the Ecclesiastical Court. The court would decide if there was good cause for the separation.
Historically such an order had been enforced by threatening excommunication but the Ecclesiastical Courts Act 1813 provided that the penalty for non-compliance was to be imprisonment for no more than 6 months and/or sequestration, for which purposes the High Court of Chancery was brought in.
Husband’s duty to support
A corollary of the doctrine of coverture was that the common law imposed a duty on the husband to support the wife and children. But the wife could not go to the magistrates and ask for maintenance – that did not happen until 1895. All she could do was to pledge the husband’s credit with tradesmen for “necessaries” (food, clothes) leaving them to sue him if he didn’t pay the bills. Obviously, this was a very precarious way of living. West End shops would normally shun such women.
Indissolubility
The courts had no power to dissolve a valid marriage. The only ways in which spouses could finally end their union was by the death of one of them; or by a parliamentary divorce (a private Act of Parliament dissolving the marriage); or by a decree of nullity from the Ecclesiastical Court declaring the marriage null and void for some technical reason.
In Evans v Evans (1790) Sir William Scott (later Lord Stowell) explained why the policy of the law was strongly in favour of indissolubility of the marital union:
“It must be carefully remembered that the general happiness of the married life is secured by its indissolubility. …. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.”
You may think that is pious cant – I couldn’t possibly comment!
Judicial separation
The Ecclesiastical Court had power to award a petitioner a decree of judicial separation (still available today) on the ground of adultery or cruelty. Such a decree released the parties from the duty to cohabit.
Wives were expected to put up with much abusive behaviour before the court would conclude that the threshold of cruelty had been met. The governing authority in 1836 was Evans v Evans. There, Lord Stowell stipulated what type and degree of conduct would constitute cruelty sufficient to found a decree and the release of the duty to cohabit:
“The causes must be grave and weighty, and such as shew an absolute impossibility that the duties of the married life can be discharged. …
What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty.”
In that disturbing case the wife’s evidence, supported by a host of witnesses, that she had been subject not only to the most appalling mental torture but also to serious physical violence, was all swept aside and the brutish husband was fully exonerated. The case is rather long, but well worth reading as an example of an egregious display of judicial misogyny.
Alimony
Where such a decree was made in favour of an innocent wife she was entitled to seek alimony, and this could be generous, even up to one-half of the husband’s income. See Otway v. Otway (1812) per Sir John Nicholl (Dean of Arches):
“The delinquency of the husband is now established; the wife is the injured party; she is separated from the comfort of matrimonial society, from the society of her family, not by Act of Providence, but by misconduct of her husband; she must be liberally supported.”
But remember – “his” property and income included hers, and the decree of separation did not revert her property to her. Sir John Nicholl recorded that the joint income amounted to £5500 per annum (£500,000 in today’s money), but that “the greater part of this property came from the wife”. There were six children whom the husband had to maintain and educate. Sir John allowed £1,500 for that and gave the wife half of the balance – £2,000 p.a.
Alimony awards were enforced by the Ecclesiastical Court by the process of excommunication, although the common law writ de estoveriis habendis was apparently available (according to Blackstone) to recover arrears from the husband’s estate.
In the absence of a decree of separation in her favour a wife had no right to seek maintenance from the husband. It was unthinkable that a guilty wife who had had such a decree pronounced against her could apply for alimony.
Custody and access
The common law and ecclesiastical courts had no power to make an award of custody of, or even access to, the children, and, in this regard, equity generally followed the law[5]. As seen, George Norton brutally removed the small children from Caroline shortly after their separation, and there was no legal or equitable remedy which she could invoke to rectify that. It is worth reflecting that prior to the Custody of Infants Act 1839 a married father’s rights were absolute. In the infamous case of de Manneville in 1804 the married father had actually forcibly plucked his tiny 11-month-old daughter from her mother’s breast when she was feeding. Lord Eldon LC was “much struck” when the case came before him on a petition in wardship, but had to find that it was within the father’s rights to do so. He restrained the father from removing the child to his native France, and stated that he would “take care that the intercourse of both father and mother with the child, as far as is consistent with its happiness, shall be unrestrained” – but the report does not say what order for access in favour of the mother he made.
Under the 1839 Act a married mother was given for the first time in English law some legal rights over her own children: she could petition the Court for custody of children aged 7 or under; and for access to older children. But that was it. Otherwise, as Brett MR in Agar-Ellis v Lascelles (1883) 24 ChD 317 said 44 years later:
“The law of England is that the father has the control over the person, education, and conduct of his children until they are twenty-one years of age.”
Lord Upjohn in J v C [1970] AC 668, 721 in 1970 described the nineteenth century custody laws thus:
“[Under] the common law … the rights of the father over the custody, care and control of his children were absolute unless by his misconduct he had wholly forfeited those rights. The wife was a mere chattel and for all practical relevant purposes her identity and, of course, her property merged in that of her husband. But whereas equity had done much to protect the wife's property against the strictness of the common law … yet in respect of infancy matters, while recognising the dominant consideration of the welfare of the child, in practice in the presence of the early Victorian pater familias, equity too dutifully followed the law.”
The key dates and events in the timeline of emancipation
1792 Mary Wollstonecraft publishes A Vindication of the Rights of Woman - a pioneering call for equality and for the extension of civil and political rights to women.
1827 George Norton and Caroline Sheridan marry
1836 George and Caroline separate. George, an obvious brute, then removed from her their three sons from her, aged 7, 5 and 3. Initially refused access, she was only allowed to see the elder two, supervised, after the youngest had been killed by sepsis following a riding accident six years later in 1842.
This inspired Caroline to mount a campaign, which led to ….
1839 Custody of Infants Act: legally separated or divorced wives, provided they were not guilty of adultery, were granted the right to seek custody of their children up to the age of seven, and periodic access thereafter.
1853 Evidence Amendment Act: one spouse was now generally competent to give evidence against the other (i.e. in a civil suit could do so voluntarily) and could be compelled to do so (i.e. by the other party, not being the other spouse). This was extended by the Evidence Further Amendment Act 1869 to proceedings actually brought by the other spouse, in consequence of adultery (i.e. relating to the marriage). (This rule went through many further changes)
1854 A Brief Summary in Plain Language of the Most Important Laws Concerning Women Together with a Few Observations Thereon, a highly influential 18-page pamphlet was published anonymously, written by Barbara Bodichon
1857 Matrimonial Causes Act: Wives could now for the first-time petition for divorce: on grounds of (1) aggravated adultery i.e. adultery + cruelty/incest/bigamy/desertion for two years; or (2) rape; or (3) sodomy; or (4) bestiality, provided that the suit was not collusive. A husband could get a divorce on the wife’s adultery alone. A wife could seek alimony but would be barred if she was guilty of adultery, subject only to being awarded a compassionate allowance dum sola et casta to save her from falling into prostitution (see Squire v Squire and O’Callaghan [1905] P 4).
1870 Married Women’s Property Act: wages and property which a wife earned through her own work or inherited would be treated as her separate property
1873 Custody of Infants Act, repeals 1839 Act and allows the Court to award a mother custody of, or access to, her child under 16.
1877 Caroline dies.
1882 Married Women’s Property Act extended 1870 Act to all property. So:
· wives have right to own, buy and sell their separate property.
· courts required to recognize a husband and a wife as two separate legal entities, in the same manner as if the wife was a feme sole.
· A wife has the right to sue and be sued.
· Any damages a wife might pay would be her own responsibility, instead of that of her husband.
· Wives liable for their own debts, and any outside trade they owned was subject to bankruptcy laws.
· Wives can hold stock in their own names.
1884 Matrimonial Causes Act: Failure to comply with an order of restitution of conjugal rights no longer punishable by imprisonment
“in the 1870's and 1880's the married woman was emerging from
her chattel existence by reason of the Married Women's Property Acts and.
apart from religion, the tide began to turn against the power and authority
of the father, but only gradually, for in 1883 we find the case, which I can
only describe as dreadful, of Re Agar Ellis 24 Ch.D. 317 where the Court
of Appeal permitted a monstrously unreasonable father to impose upon his
daughter of seventeen much unnecessary hardship in the name of his religious
faith.” Lord Upjohn in J v C [1970] AC 668, 7211886 Guardianship of Infants Act: put the rights of a mother on an equal footing with
those of the father in relation to the custody of infants1891 Court of Appeal in R v Jackson [1891] 1 QB 671 decides that a husband can neither chastise nor imprison his wife
1893 New Zealand gives all women over 21 right to vote in all elections
1894 Married women allowed to vote in municipal elections
1895 Summary Jurisdiction (Married Women) Act: magistrates can make an award of maintenance in favour of a married woman in summary proceedings (but a wife who had committed adultery would either forfeit the right to an order for maintenance or would have an existing order discharged. This rule of forfeiture was not finally formally abrogated until 1978.
1912- 1914 Suffrage movement turns violent. Stops on outbreak of war.
1918 Women given limited right to vote in Parliamentary elections: had to be 30 and hold property
1919 Sex Disqualification (Removal) Act: women could no longer be excluded from any of the learned professions, including the law, could hold public office, including judicial office, and could be jurors.
1923 Matrimonial Causes Act: equalised the grounds for divorce
1925 Guardianship of Infants Act: legally separated or divorced parents placed on equal footing in respect of dispute about children. But not if they are together. It also made the welfare of the child, rather than the common law rights of parents, the paramount consideration in any dispute about children’s upbringing. The preamble to the 1925 Act read as follows:
"Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby:"
Section 1 stated:
"the court … shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, … is superior to that of the mother, or the claim of the mother is superior to that of the father”
1928 Representation of the People (Equal Franchise) Act: Women given the equal right to vote in Parliamentary elections
1935 Law Reform (Married Women and Tortfeasors) Act reiterated the terms of the 1882 Act and provided that a married woman could hold and dispose of property; be civilly liable (and not her husband on her behalf); sue and be sued; be bankrupted and otherwise subject to enforcement.
1949 Married Women (Restraint Upon Anticipation) Act, abolishes the equitable device of restraint on anticipation in settlements.
1950s Lord Denning tries to improve the wife’s claims to a share in an owner-occupied matrimonial home held in the husband’s sole name. He developed a right to occupy the family home and even to exclude an abusive husband from it. But these efforts were knocked back by the House of Lords in National Provincial Bank v Ainsworth [1965] AC 1175.
1961 Equal pay for teachers implemented and end of rule that a female teacher had to give up teaching when she got married.
1964 Married Women’s Property Act: The wife shall share housekeeping money (and any property derived from that money) equally with her husband. For the first time, it enabled married women without independent income to acquire their own money and property.
1967 Matrimonial Homes Act: Parliament restores the power of the court to allow a wife to occupy the home long term and to exclude an abusive husband from it
1970 Equal Pay Act (in force 1975)
1970 Matrimonial Proceedings and Property Act, s41 abolishes right of a married woman to pledge husband’s credit and the remedy of restitution of conjugal rights
1973 Guardianship Act. Married mothers given equal status with married fathers when together
1973 Wachtel v Wachtel [1973] EWCA Civ 10 effectively abolished litigation about conduct in matrimonial finance cases
1975 Sex Discrimination Act
1991 Huband’s rape immunity abolished
2000 Wives have equal right to share matrimonial property: White v White [2000] UKHL 54
2007 Forced Marriage (Civil Protection) Act
Law and Disorder’s podcast Law of Yore: Caroline Norton is based on this synopsis.