Marriage, As It Was, As It Is, And As It Should Be. Annie Besant
liberty, in case of any gross misbehaviour" (Blackstone, p. 445). "If the wife squanders his estate, or goes into lewd company, he may deprive her of liberty" (Comyn's Digest, under "Baron and Feme"). Broom says that at the present time "there can be no question respecting the common-law right of a husband to restrain his wife of her personal liberty, with a view to prevent her going into society of which he disapproves, or otherwise disobeying his rightful authority; such right must not, however, be exercised unnecessarily, or with undue severity: and the moment that the wife by returning to her conjugal duties, makes restraint of her person unnecessary, such restraint becomes unlawful" (vol. i, p. 547). In the year 1877 a publican at Spilsby chained up his wife to the wall from one day to the afternoon of the following one, in order, he said, to keep her from drink; the magistrates dismissed him without punishment. It may be argued that a woman should not get drunk, go into bad company, &c. Quite so; neither should a man. But would men admit, that under similar circumstances, a wife should have legal power to deprive her husband of liberty? If not, there is no reason in justice why the husband should be permitted to exercise it. Offences known to the law should be punished by the law, and by the law alone; offences which the law cannot touch should entail no punishment on an adult at the hands of a private individual. Public disapproval may brand them, but no personal chastisement should be inflicted by arbitrary and irresponsible power.
The third right, of "property," has also no existence for married women. Unmarried women have here no ground for complaint: "A feme sole, before her marriage, may do all acts for disposition, etc., of her lands or goods which any man in the same circumstances may do" (Comyn's Digest, under "Baron and Feme"). The disabilities which affect women as women do not touch property; a feme sole may own real or personal estate, buy, sell, give, contract, sue, and be sued, just as though she were of the "worthier blood;" it is marriage that, like felony and insanity, destroys her capability as proprietor. According to the common law – with which we will deal first – the following results accrued from marriage: —
"Whatever personal property belonged to the wife before marriage, is by marriage absolutely vested in the husband… in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them" (Blackstone, book ii. 443). If he takes possession, they do not, at his death, revert to the wife, but go to his heirs or to anyone he chooses by will. "If a woman be seized of an estate of inheritance, and marries, her husband shall be seized of in her right" (Comyn's Digest, under "Baron and Feme"). If a woman own land in her own right, all rents and profits are not hers, but her husband's; even arrears of rents due before coverture become his; he may make a lease of her land, commencing after his own death, and she is barred, although she survive him; he may dispose of his wife's interest; it may be forfeited by his crime, seized for his debt; she only regains it if she survives him and he has not disposed of it. If a woman, before marriage, lets her land on a lease, the rental, after marriage, becomes her husband's, and her receipt is not a good discharge. If a wife grants a rent-charge out of her own lands (or, rather, what should be her own) without the husband's consent, it is void. All personal goods that "the wife has in possession in her own right, are vested in her husband by the marriage" (Ibid); gifts to her become his; if he sues for a debt due to his wife, and recovers it, it is his; if a legacy be left her, it goes to him; after his death, all that was her personal property originally, goes to his executors and administrators, and does not revert to her; so absolutely is all she may become possessed of his by law that if, after a divorce a mensâ et thoro, the wife should sue another woman for adultery with her husband, and should be awarded her costs, the husband can release the woman from payment.
If a woman own land and lease it, then if, during marriage, the husband reduce it into possession, "as where rent accruing on a lease granted by the wife dum sola is received by a person appointed for that purpose during the husband's life," under such circumstances the husband's "executors, not his widow, must sue the agent" (Lush's "Common Law Practice," 2nd. ed., p. 27). In a case where "certain leasehold property was conveyed to trustees upon trust to permit the wife to receive the rents thereof to her sole and separate use, and she after marriage deposited with her trustees part of such rents and died; it was held that her husband might recover the same in an action in his own right. Such money, so deposited, was not a chose in action belonging to the wife, but money belonging to the husband, the trust having been discharged in the payment of the rents to the wife" (Ibid, p. 9 7 ). Marriage, to a man, is regarded as a kind of lucrative business: "The next method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property, and with the same powers, as the wife, when sole, had over them… A distinction is taken between chattels real and chattels personal, and of chattels personal, whether in possession or reversion, or in action. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and nay, if he pleases, sell, surrender, or dispose of it during the coverture; if he be outlawed or attainted, it shall be forfeited to the king; it is liable to execution for his debts; and if he survives his wife, it is to all intents and purposes his own. Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will: for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. If, however, the wife die in the husband's lifetime, the chattel real survives to him. As to chattels personal (or choses) in action, as debts upon bonds, contracts, and the like, these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And upon such receipt or recovery they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that, at his death, they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them. If the wife die before the husband has reduced choses in action into possession, he does not become entitled by survivorship; nevertheless, he may, by becoming her administrator, gain a title. Chattels in possession, such as ready money and the like, vest absolutely in the husband, and he may deal with them, either whilst living, or by his will, as he pleases. Where the interest of the wife is reversionary, the husband's power is but small; unless it falls into possession during the marriage, his contracts or engagements do not bind it" ("Comm, on the Laws of England," Broom and Hadley, vol. ii., pp. 618, 619). So highly does the law value the claims of a husband that it recognizes them as existing even before marriage; for if a woman who has contracted an engagement to marry dispose of her property privately, settle it on herself, or on her children, without the cognizance of the man to whom she is engaged, such settlement or disposition may be set aside by the husband as a fraud.
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