husband, that the parties are living apart, nor even that they are divorced a mensâ et thoro, or that the wife is living in adultery" (Lush's "Common Law Practice," 2nded. p. 156). Pleasant position for a man whose wife may have left him, to be suddenly dragged before a court of justice for some misdeed of hers, of which he may never have heard until he finds himself summoned to answer for it! A large amount of injustice arises from this absurd, fiction that two are one; it sometimes injures, sometimes protects the married woman, and it often shields those who have wronged her; but whether it injure or whether it protect, it is equally vicious; it is unjust, and injustice is a radical injury to a community, and by destroying the reasonableness and the certainty of the law, it saps that reverence for it which is one of the safeguards of society.
Let us now take Blackstone's "rights of every Englishman," and see what rights the common law allowed to a married Englishwoman. A married woman is not protected by the law in the "uninterrupted enjoyment of" her "limbs," her "body," or her "reputation." On the contrary: "If a wife be injured in her person, or her property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own" (Blackstone, p. 443). If in a railway accident a married woman has her leg broken, she cannot sue the railway company for damages; she is not a damaged person; in the eye of the law, she is a piece of damaged property, and the compensation is to be made to her owner. If she is attacked and beaten she cannot at law sue her assailant; her master suffers loss and inconvenience by the assault on his housekeeper, and his action is necessary to obtain redress. If she is libelled, she cannot protect her good name, for she is incapable by herself of maintaining an action. In fact, it is not even needful that her name should appear at all in the matter: "the husband may sue alone for loss of his wife's society by injury done to her, or for damage to her reputation" (Comyn's Digest, under "Baron and Feme"). The following curious statement of the law on this head is given in Broom's "Commentaries:"
"Injuries which may be offered to a person, considered as a husband, and which are cognizable in a court of common law, are principally three: 1, abduction, or taking away a man's wife; 2, beating her; 3, indirectly causing her some personal hurt, by negligence or otherwise. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence; though the law in both cases supposes force and constraint, the wife having no power to consent, and therefore gives a remedy by action of trespass; and the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause… 2, 3. The second and third injuries above mentioned are constituted by beating a man's wife, or otherwise ill-using her; or causing hurt to her by negligence. For a common assault upon, or battery, or imprisonment, of the wife, the law gives the usual remedy to recover damages, by action of trespass, which must be brought in the names of the husband and wife jointly: but if the beating or other maltreatment be so enormous, that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by action for this ill-usage, per quod consortium amisit, in which he may recover a satisfaction in damages. By a provision of the C. L. Proc. Act, 1852, s. 40, in an action by husband and wife jointly for an injury to the wife, the husband is now allowed to add a claim in his own right – as for the loss of the wife's society – or where a joint trespass and assault have been committed on the husband and his wife" (vol. iii., pp. 149, 150). So far is recognised the husband's complete claim over his wife's person, that anyone who receives a married woman into his house and gives her shelter there after having received notice from her husband that he is not to permit her to remain under his roof, actually becomes liable in damages to the husband. The husband cannot sue for damages if he has turned his wife out of doors, or if he has lost his right of control by cruelty or adultery; short of this, he may obtain damages against any friend or relative of the woman who gives her shelter. The wife has no such remedy against anyone who may induce the husband to live apart, or who may give him house-room at his own wish. The reason for the law being as we find it, is stated by Broom without the smallest compunction: "We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantage accruing therefrom; while the loss of the inferior by such injuries is, except where the death of a parent has been caused by negligence, unregarded. One reason for which may be, that the inferior has no kind of property in the company, care, or assistance of the superior, as the superior is held to have in that of the inferior; and therefore the inferior can, in contemplation of law, suffer no loss consequential on a wrongful act done to his superior. The wife cannot recover damages for the beating of her husband. The child has no property in his father or guardian. And the servant, whose master is disabled, does not thereby lose his maintenance or wages (Ibid, p. 153). A man may recover damages equally for the injury done to his servant or to his wife; in both cases he loses their services, and the law recompenses him. A peculiarly disgusting phase of this claim is where a husband claims damages against a co-respondent in the divorce court; if a wife be unfaithful, the husband can not only get a divorce, but can also claim a money payment from the seducer to make up for the damage he has sustained by losing his wife's services. An unmarried girl, under age, is regarded as the property of her father, and the father may bring an action against her seducer for the loss of his daughter's services. It is not the woman who is injured, or who has any redress; it is her male owner who can recover damages for the injury done to his property."
If a wife be separated from her husband, either by deed or by judicial decree, she has no remedy for injury or for libel, unless by the doubtful plan of using her husband's name without his consent. On this injustice Lord Lyndhurst, speaking in the House of Lords in 1856, said: "A wife is separated from her husband by a decree of the Ecclesiastical Court, the reason for that decree being the husband's misconduct – his cruelty, it may be, or his adultery. From that moment the wife is almost in a state of outlawry. She may not enter into a contract, or if she do, she has no means of enforcing it. The law, so far from protecting, oppresses her. She is homeless, helpless, hopeless, and almost wholly destitute of civil rights. She is liable to all manner of injustice, whether by plot or by violence. She may be wronged in all possible ways, and her character may be mercilessly defamed; yet she has no redress. She is at the mercy of her enemies. Is that fair? Is that honest? Can it be vindicated upon any principle of justice, of mercy or of common humanity?"
A married woman loses control over her own body; it belongs to her owner, not to herself; no force, no violence, on the husband's part in conjugal relations is regarded as possible by the law; she may be suffering, ill, it matters not; force or constraint is recognised by the law as rape, in all cases save that of marriage; the law "holds, it to be felony to force even a concubine or harlot" (Broom's "Commentaries," vol. iv., p. 255), but no rape can be committed by a husband on a wife; the consent given in marriage is held to cover the life, and if – as sometimes occurs – a miscarriage or premature confinement be brought on by the husband's selfish passions, no offence is committed in the eye of the law, for the wife is the husband's property, and by marriage she has lost the right of control over her own body. The English marriage law sweeps away all the tenderness, all the grace, all the generosity of love, and transforms conjugal affection into a hard and brutal legal right.
By the common law the husband has a right to inflict corporal punishment on his wife, and although this right is now much restricted, the effect of the law is seen in the brutal treatment of wives among the rougher classes, and the light – sometimes no – punishment inflicted on wife-beaters. The common law is thus given by Blackstone: "The husband also (by the old law) might give his wife moderate correction. For as he is to answer for her misbehaviour, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children. The lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege." Blackstone grimly adds, after saying this is all for woman's protection: "So great a favourite is the female sex of the laws of England" (444 and 445). This "ancient privilege" is very commonly exercised at the present time. A man who dragged his wife out of bed (1877), and, pulling off her nightdress, roasted her in front of the fire, was punished (?) by being bound over to keep the peace
