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1911 Encyclopedia Britannica
Legal Status of Women
"LEGAL STATUS OF WOMEN ( see 28.784 *).-(I) United KINGDOIiI. - The position of women in England was almost revolutionized between 1910 and 1921. Very little actual change in the law took place between 1882 and 1918, but beneath the surface inevitable changes were impending, and the World War brought about the outward change as probably nothing else could have done. The parliamentary suffrage ( see Woman Suffrage) was granted in the early summer of 1918 to all women over 30 years of age whether single, married or widows; 1 and in Dec. 1919 they were declared eligible for any office.
1 By the Representation of the People Act (1918) all the old franchises were swept away. There are now three qualifications for women as parliamentary electors under the Act: residential, university, and as the wife of a local government elector. In her own right a woman ma y qualify by residence in the electoral area and may in addition have one or more university votes. As the wife of a local government elector she may also have a parliamentary vote, but she may not vote more than once in the same election nor for more than one ordinary constituency in a general election.
It may be taken as a general proposition that from the beginning of the year 1920 onwards there has been no difference in the legal position of men and women on account of their sex throughout the United Kingdom, and since that time no woman has been under any civil disqualification by reason of sex or marriage. As far as property was concerned, even under the old law, the non-married woman, whether spinster or widow, held her property on the same terms as a man. She could buy and sell, go to law and make her will just as a man could. The married woman's position before the year 1882 was far different. It is well stated by one who, though born in the United States, became one of England's greatest lawyers, thus: " A'married woman is absolutely incompetent to enter into contracts, and has in the contemplation of law no separate existence. She cannot make a valid purchase on her own account even for necessaries, and when credit is given to her there is no remedy but an appeal to her honor " (Benjamin on Sales, 3rd ed., p. 32). All this has completely disappeared. The Married Woman's Property Act 1882 was a great step in advance, and the last remnant of the medieval doctrine that for every purpose husband and wife were one person (and that person the husband) disappeared in 1920 when they were made capable of stealing from one another except when living together. A married woman is now as capable of dealing with her own property as a man is.
Married women (and of course all spinsters and widows) can now make their wills and dispose of their property as they wish. In England neither the husband nor the children have a right to any part of it except in the absence of a will. In Scotland the children have a legal share, on which they can insist on their parent's death. A married woman is not obliged to ask her husband's leave to make a will, nor need she make him executor or leave him any part of her property, unless she wishes to do so. Among wealthy people the married woman's position as to property is of ten controlled by her marriage settlement. The provisions are almost invariably the same, viz. that the capital of the property is in the hands of trustees and the income goes to the wife, who cannot anticipate it. On the death of the wife the husband sometimes has the income for his life. If there are children the capital is divided among them, generally in equal shares. If there are no children or other descendants of the wife the property goes back to the wife's relations, unless she disposes of it by will as she can generally do.
It is, however, an irony that even in 1921, in respect of her motherhood and the custody of her own children, the woman was still inferior to man (see 14.514), and also as to inheritance she was still not in such a good position as her husband or brother. In case she does not make a will all her property except her land goes to her husband, whereas if he dies intestate she only gets a third of his property, or half it he has no children ( see 14.568 and In addition she has one university vote at a general election. To qualify as a local government elector she must have (a) attained the age of 21, be resident in the area on the last day of the qualifying period (Jan. 15 or July 15), have occupied some land or premises in the area for the whole of the qualifying period, or in the alternative ( b ) must have attained the age of 30 and be the wife of a man who. is entitled to be registered as a local government elector in respect of the premises in which they both reside. To qualify as a parliamentary elector she must have attained the age of 30 and must be entitled to be registered as a local government elector in respect of the occupation in the electoral area of land or premises of the yearly value of not less than £5, or of a dwelling house, however small the value, or be the wife of a husband entitled to be so registered. This means that the husband must own land or premises in the area of the yearly value of not less than £5. In all the above cases the women must not be under any legal incapacity. A peeress in her own right can be an elector and also a peeress by marriage. There are certain offices, chiefly in Scotland, which if conferred on a woman would incapacitate her as a voter. She must not be a lunatic, an alien or a convict. The wife of a person serving in military or naval forces of the Crown, who would if he were not so serving be entitled to be registered as an elector, is not disqualified. The wife of a " conscientious objector " is not disqualified.
In the case of a university vote the woman elector must be 30 years of age, and fulfil the same local conditions as a man elector, or have passed the final examination and kept the period of residence necessary to qualify a man at the time when the university did not grant degrees to women.
14.714). A very elaborate bill was in 1921 before Parliament intended to give her an equal share with her brothers in her parents' landed property.
The Sex Disqualification (Removal) Act, 1919, provides that no person (whether man or woman) shall be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post or from entering or assuming or carrying on any civil profession or vocation or for admission to any incorporated society (whether incorporated by Royal Charter or otherwise), and a person shall not be exempted by sex or marriage from liability to serve as a juror. The word " person " in English law includes woman as well as man. The Act further provides (a) that His Majesty may by order in Council authorize the admission of women to the Civil Service, and reserve to men any branch of, or posts in. the Civil Service in H.M. possessions overseas or in any foreign country; (b ) that any judge or other person before whom a case is heard may in his discretion on application (in both civil and criminal cases) by either party or at his own instance make an order that the jury be composed of men or women only, or may on her application exempt a woman from service on a jury by reason of the nature of the evidence or issues to be tried. Rules of Court have been made as to summoning jurors, exempting women who are for medical reasons unfit to attend and as to procedure. Section 2 provides for the admission of women as solicitors. Section 3 enables any university to admit women to membership or any degree notwithstanding any statute or charter of such university. The Act overrides all previous statutes, orders in council, royal charters or other provisions inconsistent with it, and applies to the whole United Kingdom.' It will be observed that the qualification to hold office only applies to civil life. Military and ecclesiastical offices are not open to women. On the passing of the Act Viscountess Astor was almost immediately elected to the House of Commons and took her seat as a member, and women were appointed justices of the peace and began to serve on juries. The contrast between the position of women in 1921 and 50 years earlier is certainly very striking. The unmarried woman, both spinster and widow, was equally disqualified formerly from public functions and offices, but she was in the same legal position as a man for the purposes of contract and wrong-doing. In criminal law the married woman as well as the single one has now the same position as a man with some trifling exceptions. The recent Larceny Act, which codifies the law, finally makes it possible for the wife as well as the husband to steal from one another when they are living apart, or deserting, or intending to desert the other. Up to the last-mentioned date the medieval conception that the husband and wife were one person made it impossible for them to steal from each other, just as it formerly made it impossible for one of them to give or convey property to the other. All this is now abolished and, with the exceptions presently stated, a woman, even when married, must be treated in law as a man. This is not however the case with military or ecclesiastical law. A woman is not liable to serve in the forces of the Crown, and she cannot in the Church of England or the Church of Rome be a priest or hold such ecclesiastical offices as are held by men. She is also subject to her husband in ecclesiastical law, and they are regarded for many purposes as one person. She is also by the law of marriage regarded as under the authority of her husband. Her duty is obedience in all things not sinful. The husband has a right to her custody and control. She must live in the house he appoints and sleep with him if he wishes it. She has no remedy except to leave him, and if she does so for such a reason he is not bound to support her. He cannot however legally prevent her from leaving him (Jackson v. Jackson 1891). She cannot get damages from him for imprisonment ( Tinkley v. Tinkley 1908). The wife can obtain a maintenance order from a magistrate if she separates from her husband on the ground of his assault on her, or his desertion. Orders made abroad can now be enforced in England, and, if made in England, can be enforced against the husband abroad. Maintenance for the children can also be obtained up to ios. per child (Married Woman Maintenance Act 1920).
In England until the Act of 1874 (36 and 37 Vict. c. 12) the father was the sole guardian of the children of any marriage and was entitled to the sole custod y and control of them. The mother had no legal rights whatever. By an Act of Charles II. (1660) the father was given the sole right to appoint a guardian or guardians of his children to act after the father's death so long as they are under twenty-one. By the Guardianship of Infants Act (1886) the mother, if surviving, is the guardian of each child either alone, when no guardian has been appointed by the father, or jointly with the guardian appointed by him. The mother may also appoint a guardian to act after her own and the father's death. Subject to the confirmation by the Court she may also appoint a guardian to act with the guardians appointed by the father. By Section 5 the 1 Women who wish to be solicitors should apply to the Incorporated Law Society, Chancery Lane, W. C. 2, or barristers to the Benches of the Temple, E. C., or Gray's Inn or Lincoln's Inn, W. C. Nurses and midwives are under the Ministry of Health. There are penalties for using either title without registration.
Court may make such order as it thinks fit regarding the custody of the child and the right of access thereto by either parent " having regard (a) to the welfare of the child, (b ) the conduct of the parents, and (c) the wishes as well of the father as of the mother." This statute however has been interpreted by the judges to mean that where the father's wishes and the mother's were opposed the father's wishes must prevail. By the Guardianship of Infants bill (1921) the above Act would he wholly repealed. The father and mother in future and for all purposes would be joint guardians, and have joint custody, and have " equal authority, rights and responsibility with regard to every legitimate child, any former rule of law or equity to the contrary notwithstanding." The father and mother would be jointly and severally liable for the maintenance and education of the child according to his or her means on the application of either the father or mother or any other person acting as next friend. Their executors would also be liable.
There is an old saying that lawyers are divided into two classes: those who think man is made for the law and those who think the law was made for man. It is the first class that makes the law unpopular; but it should be remembered that when husband and wife quarrel about their children the task of the judge is a very difficult one. The most difficult case is where they differ in religion. It has been laid down (Agar-Ellis case 1878) that the child must be brought up in the religion of the father. In this case he was a Roman Catholic and had not been guilty of misbehaviour. It was decided that the children must not be brought up by their mother on the ground that she might make them Protestants; if the father had been a Protestant and the mother a Roman Catholic she would have been deprived of her children on the same grounds. It was further laid down that no promise by the father before marriage as to the education of his children can be enforced after marriage, as he has a right to alter his mind. The last named decision might well be reversed by statute. In the case of property the husband's agreement before marriage can be enforced, and it seems unjust not to enforce his agreement as to the children. But in cases where the father and mother are of different religions and no promise has been given, it makes the judge's task a difficult one. Hard cases make bad law, and the difficulty lies, not with the judges, but in the real tragedy of these disagreements. (R. TIi.) (2) United States. - Although the legal emancipation of women was far advanced in the United States at the end of the 19th century, three things were yet incomplete: (I) full recognition and securing of the individual interests of women in the domestic relations, which were often left unsecuret. legally because of survival of doctrines or institutions corning down from a state of society in which all women were dependents, and were normally under a sort of guardianship; (2) full logical development of the legal capacity of married women and doing away with the remnants of their common-law disabilities, already long abrogated for the most part in the United States, but surviving here and there in curious local anomalies; (3) legal taking account of the facts of women's physical constitution in their relation to wages and hours and conditions of labour in industry, and securing of the social interest in the individual life of women by adequately protecting them in these connexions.
With the progressive breaking down of the legal conception of the household as an entity ruled from within by a head, and as an agency of social control, it becomes necessary to give legal recognition and protection to individual interests of women in the domestic relations, which at common law were supposed to be secured through the internal economy of the household, or were left unsecured in view of a paramount social interest in the household as a social institution. Summarily, these may be put as parental interests - interests of women in the relation of parent and child, and marital interests - interests of women in the relation of husband and wife.
Parent and Child
At common law the father was entitled to the custody of his minor child and the mother had a right to custody only after the father's death. In form this still stands in the books as law, but in substance there has been a complete change within a generation. Equity long ago refused to give effect to the father's common-law right of custody as against the interest of the child, and by taking the equitable doctrine of regard for the interest of the child over into the law, the courts have been able to put father and mother upon an equality for practical purposes in almost all jurisdictions. Yet the common-law doctrine remains theoretically in force in the absence of legislation, and legislation halts. One decision as late as 1905 holds that as between father and mother, the former has a legal right to control the religious training of the children. (Hernandez v. Thomas, 50 Florida Reports, 522, 536.) Husband and Wife. - Marital interests of women include claims against the world at large growing out of the relation of husband and wife, and claims of wives against husbands because of that relation. As interests of personality a wife has claims to the society of her husband, quite apart from any economic advantage; to the affection of her husband, analogous to the legally recognized claim of the husband to the society and affection of the wife; and to the chastity and constancy of the husband as involving her self-respect and honour. These interests, however, are not yet recognized to their full extent and are not fully secured even in legal theory. The first and second are now protected by an action for alienating the husband's affections, which has come to be allowed by the overwhelming weight of American authority. ( Turner v. Heavrin, 182 Kentucky Reports, 65, 1918). The third is at most but partially recognized and indirectly secured; but it should be said that the obvious inutility of the husband's means of redress, which should be applied by analogy to make the law logically complete, has had much to do with the apparent backwardness of the law on this subject. As an interest of substance the wife may claim to be secured in the marriage relation as an economically advantageous relation, providing her with support and shelter. Where the husband is enticed or induced to abandon his wife or to divert earnings which should be devoted to her support, the courts are coming to recognize this interest directly. (The wife's action was allowed in Flandermeyer v. Cooper, 85 Ohio State Reports, 327, 1912: it was denied in Brown v. Kistleman, 177 Indiana Reports, 692, 1912. ) On the other hand in case of physical injury to, or abduction of, the husband, the wife is still usually denied an action, although the husband may recover in the converse case for " loss of service." No doubt there are practical difficulties here, arising in part from our mode of trial and of assessing damages. Yet the present state of the law, shaped by obsolete conceptions of the position of the wife in the household, is so out of accord with the present-day position of married women that legislative overhauling in the near future is not unlikely. Regarding the claims of the wife against the husband, modern law everywhere has agreed to leave the interest of husband and wife respectively in the society and affection of the other without effective legal sanction as between the two. The claim of the wife to support was recognized fully and secured adequately at common law. Recent legislation setting up domestic relations courts and providing for criminal prosecution in case of non-support has only put more effective administrative machinery behind existing legal duties of the husband. The most serious inequalities in this connexion were in the procedural difficulties encountered in enforcing the wife's legal rights. Domestic relations courts, which have had a considerable development in the U.S. in the last decade, are adapted especially to removing these obstacles (see Smith, Justice and the Poor, chap. i 1.). It should be noted also that modern legislation, although taking away from the husband all control over the wife's property and earnings and committing it solely to the wife, has left untouched the common-law duty of the husband to support the wife even if she has property and he has none. Some courts go so far as to allow a wife possessed of means who has supported herself out of her separate estate to sue the husband and obtain restitution of the amount thus contributed. ( De Brauwere v. De Brauwere, 203 New York Reports, 460, 1911.) A few western states, however, now impose upon a wife of means and ability a duty of supporting an indigent and infirm husband, and allow an action by the husband to enforce this duty. ( Hagert v. Hagert, 22 North Dakota Reports, 290, 1911.) Disabilities of Married Women. - Unmarried women of sound mind and lawful age were under no common-law disabilities. On the other hand married women were without power to determine their own national character or legal domicile, following their husbands in these respects as a matter of law; were subject to serious disabilities with respect to ownership, use and enjoyment of property; were restricted in their power to sue in the courts; could not convey property; and had no power to contract. Some of these disabilities were rested on a fiction of the legal unity of husband and wife, derived from the position of the husband as guardian of the dependent members of the household in the old Germanic polity and reinforced by certain texts of Scripture, whose authority was decisive in the Middle Ages. Legislation began to abrogate these disabilities early in the 19th century. But it was often far from comprehensive in its scope, and when sweeping provisions were enacted they were often interpreted narrowly because of the doctrine requiring strict construction of statutes in derogation of the common law. There has been a gradual but steady progress in the direction of removing all of these disabilities partly by legislation and partly by judicial decision, and many anomalies which resulted from halfway legislative measures or strict judicial interpretation were in the decade 1910-20 shaken, if not overthrown. With respect to separate domicile of married women and actions by wives against husbands, the social interest in the security of marriage and the family as social institutions of paramount importance has necessaril y given the courts pause, since the doctrine that the wife's domicile depended on that of the husband, and that the one might not sue the other, seemed but corollaries of a legal recognition of the family as an entity. Yet when that entity is de facto dissolved, these doctrines amount to serious disabilities imposed upon one member. Accordingly in one way or another American courts now recognized the separate domicile of the wife substantially to the full extent of her individual interest in free self-assertion. ( Williamson v. Osenton, 232 U.S. Reports, 619, 1914. ) So also with respect to actions by the wife against the husband. The older Married Women's Acts which in form merely removed disabilities as to property and contract, were long construed as not allowing such actions since they did not do so expressly, and a policy against aggravation of domestic troubles by dragging them into court was taken to be in the way. This sacrifice of the individual interests of the wife to the supposed exigencies of a social interest has now definitely given way, and conservative courts are allowing such actions even under statutes in terms dealing with property rights only. (Brown v. Brown, 88 Connecticut Reports, 42, 1914. ) The more recent type of statute, providing that a married woman shall have the same legal existence and personality after marriage as before marriage, necessarily permits such litigation. (Fiedler v. Fiedler, 42 Oklahoma Reports, 124, 1914. ) As to capacity to own, acquire, use and enjoy property, little remains of the old law, and there are but few jurisdictions where legislation might still accomplish anything. In one respect, however, improvement by judicial decision is still going forward. A number of states, by derivation directly or indirectly from Spanish law, have the institution of " community property," in which with respect to certain property, and especially property acquired after marriage, husband and wife are treated legally as a sort of property-owning entity. The older view was that the husband was the administering agent of this collectivity during their joint lives, and hence could dispose of it, alter its form and charge it with his personal debts; and that it could even be taken in execution for his wrongful acts. Recent decisions in some of these jurisdictions, recognizing the individual interest of the wife, hold that the community property is not liable for acts done by the husband outside of the reasonable scope of his authority as agent of the community. (Schramm v. Steele, 97 Washington Reports, 309, 1917. ) Yet even there a claim for an injury to the wife being an acquisition after marriage and community property, she is not allowed to sue therefore if her husband refuses to join. (Hynes v. Colman Dock Co., 108 Washington Reports, 642, 1 9 1 ' 9 .') As to contractual capacity, little remains to be done anywhere in order to give married women full beneficial powers of contracting in their own interest. Yet in more than one jurisdiction privileges which compensated for the older disabilities still remain in force in whole or in part and enable married women to escape from contracts for which as persons of full capacity they ought to be held. This is especially true of contracts of suretyship, by which married women are very generally incapable of binding their separate property.
Protection of Women in Industry
While American courts have been reluctant to give over, or to construe legislation as abrogating, common-law privileges or disabilities which protected married women when in a condition of legal dependence, they have also been reluctant to uphold legislation restricting freedom of contract on the part of women in industry with respect to hours and conditions of labour and minimum wage. When such statutes were first enacted, they were held unconstitutional as being arbitrary and unreasonable interferences with liberty of contract by a court which had had no hesitation in keeping alive common-law disabilities, that had long ceased to secure any individual or social interest. That decision has been overruled (Ritchie v. Wayman, 244 Illinois Reports, 509 Iwo ), and it seems to be settled that legislation may take account of the facts of women's physical make-up and secure the social interest in a healthy womanhood by regulating the hours of labour of adult females. (Muller v. Oregon, 208 U.S. Reports, 412, 1908; Bunting v. Oregon, 243 U.S. Reports 416, 1917. ) But it is still a matter of controversy whether this may be carried to the extent of fixing a minimum wage for women employees. (Stettler v. O'Hara, 243 U.S. Reports, 629, 1917. ) Curiously enough, the political and legal emancipation of women is urged as a reason against such legislation, as if the removal of political and legal disabilities had any relation to, or effect upon, the physical handicaps upon women in industry which are the occasion of these statutes.
Women on Juries
In 1917 California provided for the drawing of women upon juries. (Laws of 1917, p. 1283. ) Since the adoption of the Nineteenth Amendment of the Federal Constitution providing for women suffrage, 1920, it has been assumed that women are to sit upon juries everywhere. But in some jurisdictions, out of caution, it is felt that the courts should await express legislation, and in others courts have felt compelled to wait until court-houses and jury-rooms could be adjusted to the novel situation presented by juries of men and women. The conditions under which juries are kept while deliberating upon verdicts and the accommodations for jurors in large cities, where many juries are sitting simultaneously for a great part of the year, are not adapted to the woman juror; and in many country court-houses things are even worse. If no other good results from service of women upon juries, the inevitable improvement of the physical conditions surrounding jury service will be a gain. On the other hand, the expense involved in this improvement and in provision for the custody of juries made up of men and women in important cases, where juries must be guarded closely from outside contact, leads many jurisdictions to hesitate.
(R. Po. *)
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Chisholm, Hugh, General Editor. Entry for 'Legal Status of Women'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/l/legal-status-of-women.html. 1910.