The Case for Women's Suffrage/The Legal Disabilities of Women



THE subject of the legal disabilities of women is complicated by the fact that in addition to the disabilities affecting women generally there are others affecting only married women; for, while marriage leaves the position of men entirely unaffected, except as regards their liability to maintain their families, it means for women a distinct change of position.

The disabilities touching all women, whether married or single, must be first considered. Chief of these, then, is the inability to vote for Parliamentary representatives. Lacking the vote, women lack the power to remove existing injustices or to guard against future ones.

The sex disability in political matters is of quite recent origin. Until 1832 there was nothing to prevent women who possessed the same qualifications as men from exercising the same political rights. Even at the present day a woman may ascend the throne.

The Reform Act of 1832 was the first Act of Parliament to contain a limitation founded on sex. The franchise conferred by that Act was confined to "male persons." In The Representation of the People Act of 1867 use was made, not of the words "male person," but of the word "man." In view of the provisions of Lord Brougham's Act, 1859, to the effect that In all Acts of Parliament, unless the contrary is expressly stated, words importing the masculine gender shall apply to women as well as to men, it was supposed that the new Reform Act, since it referred to "men," applied also to women. Consequently, over 7,000 women in Manchester, Salford, and other places got on the register, and shortly after the matter came before the Court of Common Pleas for decision, in the case of Chorlton v. Lings.

In defence of the women's claim to vote, it was shown that in earlier times the right of women to have the vote had existed, that such a right could not be destroyed by non-user, and that the effect of Lord Brougham's Act must necessarily be to make the word "men" apply to women. The judges decided, however, that neither by the Common Law nor by virtue of the new Franchise Act could women vote. In the later case of Beresford Hope v. Lady Sandhurst, Lord Esher, Master of the Rolls, summed up the judicial view of the matter by saying that women cannot exercise a public function, and that, the act of voting being a public function, women cannot vote. He said, further, that this being the common law of England, unless a statute dealing with the exercise of public functions expressly gives power to women to exercise them, it is to be taken that the powers given are confined to men. Thus it will be seen that the exclusion of women from the Parliamentary franchise rests upon judicial decision.

A seat in the House of Commons is denied to women, although there exists no express legal prohibition of the choice by the electors of a woman as their Parliamentary representative. Miss Helen Taylor attempted on one occasion to become a Parliamentary candidate, but her nomination was refused, and there the matter was allowed to rest.

Peeresses in their own right do not take their seats in the House of Lords. Some are of opinion that they are entitled so to do, but it would seem that the principle of the decision in Chorlton v. Lings prevents this.

Apparently no woman is eligible for judicial office. Here, again, no Act of Parliament stands in the way; but the judicial decision above referred to and also the fact that the legal profession is closed to women render impossible the appointment of a woman as judge. This, of course, means that, in addition to being powerless to help in the making of statute law, women have no part in the making of judicial law. Every lawyer knows how largely judge-made law bulks in our legal system. The disability in question is therefore a very serious one. Further, the interpretation of laws affecting both men and women by men only gives an opening for the operation of sex prejudice, which must often result in practical injustice to women.

Not only judge but jury also are men. The old principle that accused persons must be tried by their peers is violated every time that a woman is brought forward for trial. No law prevents the presence of women on the jury, but if the matter were raised in a court of law, it is virtually certain that the principle laid down in Chorlton v. Lings would be adhered to, and the right of women to trial by juries composed in part at least of women negatived.

The legal profession, which plays so large and important a part in English life, is closed to women. This means that women cannot under any circumstances be represented by members of their own sex, and there are those who believe that sex bias has so strong an operation as to tend to make the legal representatives engaged by women, consciously or unconsciously, less strenuous than they might be in defending their clients' interests. The legal profession is the avenue, not only to judicial office, but to many other important positions, and to close it to women means that these positions are unattainable by them.

Women are not prohibited by statute from becoming lawyers. The Benches of the Inns of Court are responsible for the non-existence of women barristers. They have the right to regulate admission to the Bar, and their power of rejecting applicants is virtually absolute. They have so far refused to consider the applications of women. A woman solicitor is not a legal impossibility. The statutes governing this branch of the profession refer to "persons" simply. Probably, however, the Courts would decide that the function of a solicitor, being in the nature of a public function, cannot be exercised by women. In Scotland the application of a woman to become a law agent was rejected on this ground.

Women at the present time have a share in local government considerably more restricted than that enjoyed by men. In borough and county council elections they may vote as occupiers, though not as owners. Marriage is a disqualification, in consequence of the decision in Regina v. Harrald, 1871, and although the Married Women's Property Act of 1882 has placed married women in respect of their property and freedom of contract virtually in the same position as single women, this old decision given before the Act is still in force, no attempt having ever been made to get it overruled. The Local Government Act of 1894 empowered married women as well as single women to vote as parochial electors, subject to this restriction—that husband and wife cannot vote in respect of the same qualification. In Ireland and Scotland and in the County of London, however, married women can vote in every local election, the Acts which regulate local government in those places making provision for this, but no married woman may qualify jointly with her husband.

Seats on local authorities are denied to women, save in the case of Boards of Guardians and of Rural and Urban District Councils. School Boards and the London Vestries, to both of which women were eligible, have disappeared, and the authorities which now perform the work of these old bodies are closed to women. The new Education Act provides that on the education authorities created by the Act shall sit co-opted women members. Since these women owe their position, not to the support of the electors, but to the good pleasure of their colleagues, their authority is necessarily weakened. In Urban Districts having a population of more than 20,000 women can be elected to the local education authority.

Before leaving the subject of local government, it should be noticed that a special disability was introduced into the Local Government Act of 1894. A chairman of a District Council shall, so the Act provides, be by virtue of his office a Justice of the Peace—unless such chairman be a woman.

The State Church is officered by men, and other denominations have in this matter taken the same course. The Unitarians alone have, in a single instance only, broken this rule of exclusion.

Into the Civil Service women are not admitted, except as regards the lower ranks. There exists, too, a handful of women inspectors of factories, of schools, and of children "boarded out" under the Poor Law.

It will be seen that the disabilities which affect women as citizens, as members of the community, are by no means altogether due to legal enactment. Custom, almost as rigid and difficult of removal as law, forms a wall confining within narrow limits the sphere of such persons as do not happen to belong to the male sex.

We come now to the consideration of sex disability in regard to rights of property.

An unmarried woman, once she has become the owner of property, whether real or personal, has precisely the same rights and liabilities in respect of it as a man. The laws of inheritance, however, draw a distinction between men and women in the case of real estate. Women cannot inherit freehold property under an intestacy, except in default of male heirs. For example, if a person dies intestate leaving two children, a son and a daughter, the children will take equal shares of his personal estate, but the son will, in addition to his share of the personal estate, take the whole of the real estate.

The effect of marriage on a woman's proprietary rights is part of the general subject of the disabilities involved by marriage. Married women are, or rather have been, in a very different position from that of their spinster sisters. The foundation of the disabilities imposed upon married women is the old legal rule that husband and wife are one. That "one" is the husband, be it understood, for the identity of the wife is, according to Common Law, entirely lost and merged in that of her husband. Modern legislation has by successive steps encroached upon this doctrine, and little by little the wives of this country have won, and are winning, legal and social recognition of their separate existence, their personal importance, and their right to freedom of action.

The husband's right of control over the personal liberty of his wife is now greatly diminished. In the famous Jackson case It was decided that a man may not imprison his wife. She Is legally bound, however, to follow him wherever he goes, if he so desire.

One consequence of a wife becoming on marriage legally one with her husband was that her property became his. He enjoyed all the rents and profits of her freehold lands during their joint lives, though if he died first she resumed the enjoyment thereof, and if she died first he had only a life interest in her lands, and they afterwards passed to her heirs. The rents and profits of his wife's leasehold lands were also enjoyed by the husband, and he could during her lifetime sell or give away such lands, even against her will. They were absolutely his if he survived her, although if he died first without having disposed of them they became her own once more. Personal property became absolutely and unconditionally the husband's.

The Married Women's Property Act, 1883, enables a married woman to acquire, hold, and dispose of property, both real and personal, as though she were unmarried. She is also empowered to enter into contracts and made liable for her debts.

Before this change in the law, the only way of safeguarding the pecuniary interests of a woman and her children against the possible avarice or improvidence of the husband was a marriage settlement. By this means the wife's property could be settled upon herself and provision made for the children to be born of the marriage. As a further protection, a restraint on anticipation was often introduced which prevented the wife from disposing of her settled property or anticipating the income thereof. Thus, if she incurred a debt in one year she could not be compelled to pay it out of any future year's income. Marriage settlements may still be made in spite of the Married Women's Property Act, but a woman cannot now settle her own property on herself, so as to interfere with the rights of her creditors. Creditors and others are wont to complain of restraints on anticipation as giving to the married women who enjoy the benefit of them an unfair advantage. The object of these restraints is, of course, to protect wives from the result of yielding unwisely to their husband's influence in money matters. As long as it is customary to marry young and inexperienced girls to men much older and much more experienced, there is a good deal to be said in favour of the law in question. When women become, in consequence of right training, more self-reliant, they will cast aside such artificial props and protections with scorn.

In former times, as we have seen, the law compelled every woman who married to endow her husband with all her worldly goods, and so deprived her of all means of self-support. At the present day, though this law is changed, custom does its best to deny to married women all possibility of economic independence.

Girls are not given the same educational advantages as boys, because "they will get married"; many employments are closed to women for the same reason; public authorities and private employers are in the habit of dismissing women employees on marriage. Self-styled reformers are crying out for legislation to prohibit wage-earning by married women. In view of all this, one would expect to find married women in the full enjoyment of a definite and well-secured right to maintenance by their husbands.

What are the facts of the case? I quote the unemotional words of a well-known legal textbook:[1] "The marriage … imposes on the husband the duty of maintaining her … although the direct methods assigned by law to enforce it have for their objects anything rather than the vindication of the rights of injured married women. The only legal reason why a husband should support his wife is that she may not become a burden on the parish. So long as this calamity is averted the wife has no claim on her husband, and, in fact, she has no direct claim on him in any circumstances whatever; for even in the case of positive starvation she can only come on the parish for relief, and then the parish authorities will insist that her husband shall provide for her to the extent at least of sustaining life."

There is another means whereby a wife may compel her husband to provide her with the necessaries of life: she can pledge his credit. In ordering necessaries, she is presumed to be acting as his agent, and he becomes liable to pay for them. Obviously, this protection exists only in cases where tradesmen are willing to give credit, and it will be lost if the husband forbids his wife to pledge his credit. One frequently hears men complaining that it should be possible for wives to pledge their husband's credit, because the power of doing so is abused by a few women. What is to become of the married woman in this country? thinking women ask themselves. Attempts are being made to drive her out of industry; her right to maintenance by her husband is very limited and can only be directly enforced in a way which is most humiliating to herself; she is to be restrained from acting as her husband's agent so as to obtain necessaries on credit. How does such a condition differ from slavery?

In some way or other, perhaps through some system of co-operative housekeeping, economic independence must sooner or later be made a possibility for all married women.

Let it be noticed that wives are liable for the maintenance of their husbands. They are liable also to maintain their children, if the father is unable to do so.

On the death of a married woman who leaves no will, her husband succeeds to the whole of her personal property and takes a life interest in the whole of her freehold lands. A widow's right to the property of her husband who dies intestate is much less extensive. If there are children of the marriage, the widow gets one-third of the personal property. If she is childless, she takes one-half of the personal property, the other half going to the husband's next-of-kin. The widow's rights have been somewhat increased by the Intestates Estates Act, 1890, which provides that if the property, real and personal, of her deceased husband is of no greater value than £500, she takes the whole, and that in cases where the estate is of greater value, she has, over and above the half-share to which she is entitled, a charge on the estate of £500. This Act applies only when there are no children.

The widow's ancient right of dower entitles her to the enjoyment for her life of one-third of her husband's freehold lands; but this right has been virtually abolished by means of devices invented by the lawyers and by the Dower Act of 1830. Hence it is very seldom that widows enjoy their right of dower, though the corresponding right of a widower is still in full force.

There is a harsh provision in the Married Women's Property Act of 1882, to the effect that if a loan is made by a wife to her husband for the purposes of his trade or business, she can, in case of his bankruptcy, recover nothing until the claims of all his other creditors have been satisfied. If he dies insolvent the same rule applies. A husband lending money to his wife for the purposes of her trade or business, is not at this disadvantage, but has the same rights as any other creditor.

The divorce laws are notoriously unfair to women. A husband can secure a divorce on the sole ground of his wife's adultery, but adultery on a husband's part gives his wife no right to obtain a divorce. The fact that he is constantly and persistently immoral makes no difference. To obtain a divorce from him she must prove, in addition to adultery, bigamy, cruelty, or desertion for two years and upwards. The decision as to whether the acts proved amount to legal cruelty, rests with a male judge who is apt to take a lenient view of a fellow-man's shortcomings.

The right to the control of the children of a marriage belongs to the father alone. He has sole authority over them and can, if he pleases, entirely disregard the wishes of the mother as to the manner of their education and training. The Guardianship of Infants Act, 1886, has increased the rights of mothers by providing that the Court, in making an order as to the custody of an infant and the right of access thereto of either parent, shall have regard to the welfare of the infants, to the conduct of the parents, and to the wishes as well of the mother as of the father.

Formerly a father could, by will, appoint a guardian for his children who had the same absolute control over them as he himself had possessed while living. The mother of the child did not occupy the position of guardian unless she had been expressly appointed by her husband's will. Since the Guardianship of Infants Act, 1886, a mother is in all cases the guardian of her children after the death of their father, and can act jointly with any other guardian whom the father may have appointed. A mother, on the other hand, can only nominate a guardian to act jointly with her husband after her death, and her nomination does not take effect unless the Court confirms it. This the Court does only under exceptional circumstances.

From what appears above, it will be seen that the list of women's disabilities is shorter than of old. The Acts of Parliament dealing with married women's property and the rights of mothers in relation to the custody and control of their children, were carried at a time when reforms affecting women were easier to win than they are to-day. Had not the exertions of a devoted band of reformers secured these changes in the law about a score of years ago, it would have been found increasingly difficult to get them made. The male electorate is much larger than it used to be, and Parliament is so busy attending to the demands of enfranchised men, that it has neither time nor thought to spare for the needs of unenfranchised women. It is, however, possible that many of the specific injustices of which women have to complain to-day, will, in the course of time, be removed by a Parliament responsible only to men. The real danger is that new forms of injustice will spring up. The women of this generation are threatened by a serious interference with their industrial and social liberty. The Factory Acts as they exist to-day, contain special restrictions affecting female labour only. These restrictions were imposed with the intention of protecting women workers from the unfair exploitation of their labour. The way chosen was, many of us think, not the best way. It is more just to women, and in every way more reasonable that factory legislation should apply to men and women alike without distinction of sex. The further extension of the principle of making special regulations for women workers which do not apply to men workers must be resisted, at least until such time as women themselves are in the enjoyment of the Parliamentary franchise. If fully enfranchised women workers choose to fetter their own industrial action, they will be entitled to do so. For the men of the nation to regulate the labour of women without women having the power to express their opinion at the ballot box, is obviously unjustifiable.

At present, then, the injustice of the future comes in the guise of unfair industrial legislation for women. That danger averted, new ones are certain to arise. So long as the root of injustice lies in the earth, it will bear leaves, flower, and fruit.

  1. "Husband and Wife," Macqueen.