The most remarkable disabilities under which women were still
placed in 1910 were (1) the exclusion of female heirs from intestate
succession to real estate, unless in the absence of a male heir (see
Inheritance; Succession); and (2) the fact that a husband could
obtain a divorce for the adultery of his wife, while a wife could only
obtain it for her husband's adultery if coupled with some other cause,
such as cruelty or desertion.
Suits in which either necessarily or practically only women are plaintiffs are: breach of promise, affiliation (q.v.) and (though not nominally) seduction (q.v.).
The action for breach of promise[1] may indeed be brought by a man, but this is very rare, and its only real interest is as a protection for women. It may be brought by but not against an infant, and not against an adult if he or she has merely ratified a promise made during infancy; it may be brought against but not by a married man or woman (in spite of the inherent incapacity of such a person to have married the plaintiff), and neither by nor against the personal representatives of a deceased party to the promise (unless where special damage has accrued to the personal estate of the deceased). The promise need not be in writing. The parties to an action are by 32 and 33 Vict. c. 68 competent witnesses; the plaintiff cannot, however, recover a verdict without his or her testimony being corroborated by other material evidence. The measure of damages is to a greater extent than in most actions at the discretion of the jury; they may take into consideration the injury to the plaintiff's feelings, especially if the breach of promise be aggravated by seduction. Either party has a right to trial by jury under the rules of the Supreme Court, 1883. The action cannot be tried in a county court, unless by consent, or unless remitted for trial there by the High Court. Unchastity of the plaintiff unknown to the defendant when the promise was made and dissolution of the contract by mutual consent are the principal defences which are usually raised to the action. Bodily infirmity of the defendant is no defence to the action, though it may justify the other party in refusing to marry the person thus affected. Where the betrothed are within prohibited degrees of consanguinity or affinity, there can be no valid promise at all, and so no action for its breach.
Criminal Law.—There are some offences which can be committed only by women, others which can be committed only against them. Among the former are concealment of birth (in ninety-nine cases out of a hundred), the now obsolete offence of being a common scold, and prostitution (q.v.) and kindred offences. Where a married woman commits a crime in company with her husband, she is generally presumed to have acted by his coercion, and so to be entitled to acquittal. This presumption, however, was never made in witchcraft cases, and is not now made in cases of treason, murder and other grave crimes, or in crimes in which the principal part is most usually taken by the wife, such as keeping a brothel. In fact, the exceptions to the old presumption are now perhaps more numerous than those falling within it. The doctrine of coercion and the practice of separate acknowledgment of deeds by married women (necessary before the Married Women's Property Act) seem to be vestiges of the period when women, besides being chattels, were treated as chattels. Formerly a wife could not steal her husband's property, but since the Married Women's Property Act this has become possible. Adultery is no crime, England being almost the only country where such is the case. It was punished by fine in the ecclesiastical courts up to the 17th century, and was made criminal for a short time by an ordinance of the Long Parliament. The offences which can be committed only against women are chiefly those against decency, such as rape, procurement and similar crimes, in which a considerable change in the law in the direction of increased protection to women was made by the Criminal Law Amendment Act 1885. In regard to the protection given to a wife against her husband modern legislation has considerably strengthened the wife's position by means of judicial separation and maintenance in case of desertion (see Divorce). The whipping of female offenders was abolished in 1820. Chastisement of a wife by a husband, possibly at one time lawful to a reasonable extent, would now certainly constitute an assault. The husband's rights are limited to restraining the wife's liberty in case of her misconduct.
In Scotland the criminal law differs slightly from that of England. At one time drowning was a punishment specially reserved for women. Incest (q.v.), or an attempt to commit incest, has always been punishable as a crime. Adultery and fornication are still nominally crimes, but criminal proceedings in these cases have fallen into desuetude. The age of testamentary capacity is still twelve, not twenty-one, as in England.
The whole idea of women's position in social life, and their ability to take their place, independently of any question of Higher education and its results. sex, in the work of the world, was radically changed in the English-speaking countries, and also in the more progressive nations beyond their bounds, during the 19th century. This is due primarily to the movement for women's higher education and its results. To deal in detail with this movement in various countries would here be too intricate a matter; but in the English-speaking countries at all events the change is so complete that the only curious thing now is, not what spheres women may not enter, more or less equally with men, but the few from which they are still excluded.
Before the accession of Queen Victoria, there was no systematic education for English women, but as the first half of the 19th century drew to a close, broader views began to be held on the subject, while the humanitarian movement, as well as the rapidly increasing number of women, helped to put their education on a sounder basis. It became more thorough; its methods were better calculated to stimulate intellectual power; and the conviction that it was neither good, nor politic, for women to remain intellectually in their former state of ignorance, was gradually accepted by every one. The movement owed much to Frederick Denison Maurice. He was its pioneer; and Queen's College (1848), which he founded, was the first to give a wider scope to the training of its scholars. Out of its teaching, and that of its professors (including Charles Kingsley), grew nearly all the educational advantages which women enjoy to-day; and to the women who were trained at Queen's College we owe some of the best teaching in England. Bedford College, Cheltenham College, the North London Collegiate School for Girls, the Girls' Public Day School Company's schools, are some of those which sprang into life in different parts of England, and were filled, as rapidly as they were opened, by the girls of the middle and professional classes. From their teaching came the final stage which gave women the same academic advantages as men. Somerville College and Lady Margaret Hall at Oxford, Girton and Newnham Colleges at Cambridge, Westfield College in London, St Hilda's College, St Hugh's Hall, Holloway College, Owens College, the Manchester and Birmingham and Victoria Universities, and other colleges for women in all parts of the United Kingdom, are some of the later but equally successful results of the movement. The necessity for testing the quality of the education of women, however, soon began to be felt. The University of Cambridge was the first to institute a special examination for women over eighteen, and its example was followed by Oxford; but while London, Dublin (Trinity College), Belfast (Queen's), Victoria, Edinburgh, Glasgow, and St Andrews universities now grant degrees, Oxford and Cambridge still denied them in 1910. In the act of 1908 establishing the new Roman
- ↑ The action for breach of promise of marriage is in some of its incidents peculiar to English law. In Roman law, betrothal (sponsalia) imposed a duty on the betrothed to become husband and wife within a reasonable time, subject to the termination of the obligation by death, repudiation by the words conditione tua non utor, or lapse of time, the time fixed being two years. No action lay for breach of promise to marry unless arrhae sponsalitiae had been given, i.e. earnest of the bargain, to be forfeited by the party refusing to carry it out. The arrha might also be given by a parent, and was equally liable to forfeiture. A provincial governor, or one of his relations or household, could not recover any arrha that might have been given, it being supposed that he was in a position of authority and able to exercise influence in forcing consent to a betrothal. In the canon law breach of the promise made by the sponsalia, whether de praesenti or de futuro, a division unknown to Roman law, does not without more appear to have sufficed to found an action for its breach, except so far as it fell under ecclesiastical cognizance as laesio fidei, but it had the more serious legal effect of avoiding as a canonical disability the subsequent marriage, while the original sponsalia continued, of a betrothed person to any other than the one to whom he or she was originally betrothed. The sponsalia became inoperative, either by mutual consent or by certain supervening impediments, such as ordination or a vow of chastity. The canonical disability of pre-contract was removed in England by 32 Hen. VIII. c. 38, re-established in the reign of Edward VI., and finally abolished in 1753. In England the duty of the parties is the same as in Roman law, viz. to carry out the contract within a reasonable time, if no time be specially fixed. Formerly a contract to marry could be specifically enforced by the ecclesiastical court compelling a celebration of the marriage in facie ecclesiae. The last instance of a suit for this purpose was in 1752, and the right to bring it was abolished in 1753 by Lord Hardwicke's Act (26 Geo. II. c. 33). In Scotland a promise in the nature of sponsalia de futuro not followed by consummation may be resiled from, subject to the liability of the party in fault to an action for the breach, which by 6 Geo. IV. c. 120, s. 28, is a proper cause for trial by jury. If, however, the sponsalia be de praesenti, and, according to the more probable opinion, if they be de futuro followed by consummation, a pre-contract is constituted, giving a right to a decree of declarator of marriage and equivalent to marriage, unless declared void during the lifetime of the parties.
