Rachel Ablow, “‘One Flesh,’ One Person, and the 1870 Married Women’s Property Act”

Abstract

The 1870 Married Women’s Property Act marked a shift in the way marriage was regarded in England. Before that point, debates relating to divorce, married women’s property, and child custody revolved around different ideas of what constituted the good marriage: while many conservatives claimed that coverture (the legal doctrine that absorbed a married woman’s legal identity into her husband’s) guaranteed sympathetic communion between spouses, many progressives claimed that only legal equality could enable husbands and wives to enter fully into one another’s feelings. The 1870 Act marked a shift away from conservatives’ claims and towards those of progressives.

[1]According to many commentators at the time, the 1870 Married Women’s Property Act signaled the demise of coverture (also spelled “couverture”), the legal doctrine that made two people legally one upon marriage.[2] As William Blackstone describes it in his Commentaries on the Laws of England (1756), coverture meant that “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.” As a result, Blackstone goes on to explain, “a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself” (1.442). Under coverture, in other words, the wife’s legal identity was effectively absorbed into her husband’s: any “personal” property she owned prior to the marriage became his; all land, known as “real” property, reverted to her in the case of her husband’s death, but he controlled any income it generated during his lifetime. In addition, anything the wife earned or inherited during the marriage legally belonged to the husband. She could not make contracts or incur debts without his approval. Nor could she sue or be sued in a court of law. Only the extremely wealthy were routinely exempted from these laws: under the rules of equity, a portion of a married woman’s property could be set aside in the form of a trust for her use or the use of her children.[3] However, the legal costs involved in establishing trusts made them unavailable to the vast majority of the population. For most married couples, therefore, husband and wife were legally “one person,” and, as one popular saying put it, “that one [was] the husband” (qtd. in Besant 8).

The 1870 Married Women’s Property Act established the principle of married women’s separate property and so set the stage for considering married women legally independent and responsible citizens. It legislated that income which a wife earned through work would be regarded as her separate property. It also allowed her to retain any land that she inherited as well as any money up to £200. The Act was particularly significant for working women, who were able to retain control of their wages for the first time. The Act was by no means unprecedented, for, as other essays on the BRANCH Web site explain, it was preceded by a series of laws that chipped away at the privileges accorded to the husband under coverture: most importantly, the Custody of Infants Act (1839) that made it possible for mothers to gain custody of children under the age of seven (prior to this time, all legitimate children were considered the legal property of the father); and the Divorce and Matrimonial Causes Act (1857) that established a new Court of Divorce and Matrimonial Causes, thereby creating the possibility of divorce without an Act of Parliament. Nor did the 1870 Act bring the issue to a conclusion: some commentators point to the importance of the 1882 Married Women’s Property Act, which acknowledged women as legally independent and responsible for their own debts. Further, as Mary Lyndon Shanley points out, while the 1870 Act “protect[ed] the most vulnerable women from exploitation and abuse . . . [p]rotecting women . . . is not the same thing as giving them the resources to protect themselves, something Parliament refused to do. After two years of struggle feminists had gained a married women’s property law but failed to win legislative recognition of the principle that a married woman had a right to a legal status independent of and equal to that of her husband” (77).

The legal doctrine of coverture was routinely dismissed as merely a “legal fiction” used to identify the household rather than the individual as the basic social unit.[4] Yet in the debates that took place throughout the nineteenth century in both Parliament and the press, coverture was often conflated or confused with several other popular notions of what it means for two people to come together: the Christian notion of husband and wife constituting “one flesh,”; the Platonic notion of soul-mates constituting two halves of a single being; and domestic ideologists’ claims regarding the union produced by husbands’ and wives’ sympathetic bond.[5] According to James Grantham Turner, the notion that the husband and wife comprise a single being dates back to late Renaissance fusions of Biblical notions of married love with Aristophanes’s description in the Symposium of the first humans as “Janus-headed and double-bodied androgynes . . . who were sliced in two as a punishment for their hubristic attempt to storm Olympus, and condemned to perpetual erotic yearning for their severed halves” (70). Genesis, by contrast, offers the fact that Eve was formed from Adam’s rib as a way to account for the closeness of their union. Upon being introduced to Eve, Adam proclaims: “This one at last is bone of my bones / and flesh of my flesh! She is to be called Woman, because she was taken from man” (2:21-23). The passage continues: “This is why a man leaves his father and mother and becomes attached to his wife, and they become one flesh” (2:23-24). According to Turner, at least until the middle of the sixteenth century, exegetes tended to focus on the Biblical passage’s implications for the role of sexual relations in marriage: for them, the meaning of “one flesh” depended on whether they believed sexual relations between husband and wife to be “‘carnal knowledge’ . . . virtually equated with the fall itself,” or as a sign of the “‘perpetual fountain’ of God’s continued favour” (39). By the nineteenth century, however, the notion of “one flesh” had been almost entirely secularized and desexualized—as well as combined with notions of coverture and marital sympathy or female influence. As a result, there is a consistent slippage between discussions of marriage as making husband and wife one person legally (under coverture), practically (as in a household with a division of labor), romantically (as in desexualized versions of the Symposium), or psychically (as in an extreme form of sympathy).

Different accounts of the notions of coverture, “one flesh,” and marital sympathy were mobilized to very different political ends. Such accounts do not line up with absolute consistency with particular political positions. Nevertheless, many of those who sought to achieve property rights and legal recognition for married women assumed that sympathy requires a degree of similarity and understanding that can only arise in a context of relative legal equality. Those who sought to retain coverture, by contrast, argued that sympathy requires the interdependence and identity of material interests guaranteed by married women’s lack of civil rights. According to the reformer John Stuart Mill, for example, coverture should be abolished, for “Even with true affection, authority on the one side and subordination on the other prevent perfect confidence” (141). Only so long as there is no fear on the one side or coercive power on the other, he insisted, can true sympathy be achieved. Meanwhile, other progressives mocked the notion that sympathy arises from the absorption of the wife’s legal identity into the husband’s. As Cornelia Frances Cornwallis argued in 1856, for example, “the provisions of our common law, so far from being founded on the refined idea of an affection so strong that two existences might by its influence merge into one—as some sentimental chapters in modern law treatises assume, —are precisely those which belong to the relation of master and bondswoman” (191). In an 1868 essay, “Criminals, Idiots, Women, and Minors,” Frances Powers Cobbe puts this claim even more strongly, arguing that English marriage is modeled on the relations of the “Tarantula Spider”:

As most persons are aware, when one of these delightful creatures is placed under a glass with a companion of his own species a little smaller than himself, he forthwith gobbles him up; making him thus, in a very literal manner, ‘bone of his bone’ (supposing tarantulas to have any bones) ‘and flesh of his flesh.’ The operation being completed, the victorious spider visibly acquires double bulk, and thenceforth may be understood to ‘represent the family’ in the most perfect manner conceivable. (12-13)

Coverture, Cornwallis and Cobbe insist, simply erases the legal identity of one of the parties; it does not generate anything like the psychic and affective harmony of sympathy.

Conservatives, by contrast, tended to insist that sympathy arises from the identity of interests and absence of competition that they assumed to result from coverture. Hence, contrary to Lawrence Stone’s influential claim that “companionate marriage demanded a reassessment of power relations between the sexes since it depended on a greater sense of equality and sharing” (235), the most obviously romantic notions of married love were very often invoked for the most conservative ends. In her review of Mill’s Subjection, for example, Margaret Oliphant argues that:

this faulty law [i.e. the law of coverture] has yet amid all its offensive and tyrannical enactments caught sight of the principle in which lies all the difficulties of the question. . . . It is, that the man and the woman united in the first of all primitive bonds, the union upon which the world and the race depend, are one person. We say it not sentimentally or poetically, but with the profoundest sense of reality and seriousness. (581)

Specifically because the “offices they hold in the world are essentially different,” she continues, husband and wife “are two halves of a complete being”: “The two are not rivals, they are not alike. They are different creatures. They are one” (583). Here and elsewhere, Oliphant is careful to insist that she is not romanticizing this unity. As she writes in her 1856 essay, “The Laws Concerning Women”: “The ‘marriage of true minds’ may be as rare as it is lofty and fortunate. The marriage of interests, hopes, and purposes is universal” (380). Yet, despite this disclaimer, Oliphant often makes it seem as if it is precisely the “union of souls and sympathies of which lovers dream” that would be endangered by the abolition of coverture (382):

it is a mere trick of words to say that the woman loses her existence, and is absorbed in her husband. Were it so in reality—and were it indeed true, ‘that the poor rivulet loseth her name, is carried and recarried with her new associate, beareth no sway, possesseth nothing’[6]—then would the question of female inferiority be fairly proved and settled once for all. Mighty indeed must be the Titanic current of that soul which could receive one whole human being, full of thoughts, affections, and emotions, into its tide, and yet remain uncoloured and unchanged. There is not such monster of a man, and no such nonentity of a woman, in ordinary life. Which of us does not carry our wife’s thoughts in our brain, and our wife’s likings in our heart, with the most innocent unconsciousness that they are not our own original property? (381)

In this notion of carrying “our wife’s thoughts in our brain, and our wife’s likings in our heart,” Oliphant comes very close to reproducing precisely the “romancing” she claims so vehemently to reject.

Such “romancing” could take many different forms. For example, moderate conservative Sarah Stickney Ellis imagines a scenario in which the husband seeks to gain the approval of his wife, describing how often

when the snares of the world were around him, and temptations from within and without have bribed over the witness in his own bosom, [the husband] has thought of the humble monitress who sat alone, guarding the fireside comforts of his distant home; and the remembrance of her character, clothed in moral beauty, has scattered the clouds before his mental vision, and sent him back to that beloved home, a wiser and a better man. (36)

Ellis here casts the wife as an embodiment of Adam Smith’s “impartial spectator,” the thought of whose judgment “often make[s] us blush inwardly, both for our folly and inattention to our own happiness, and for our still greater indifference and inattention, perhaps, to that of other people” (423).[7] (She also, in common with many conservative commentators, assumes a middle-class home in which only the husband works, and in which the wife’s principal responsibility is to minister to his spiritual and emotional needs.) In Woman’s Mission (1839), by contrast, Sarah Lewis describes a form of female influence that is much closer to David Hume’s conception of sympathy in her claim that influences “act by a sort of moral contagion, and are imbibed by the receiver as they flow from their source, without consciousness on either side” (95). As proof of this assertion she cites “family likeness; whereby persons of different features, complexions, and statures resemble each other, and also one common model, in a manner totally incomprehensible” (95). This account almost explicitly echoes Hume’s claim that “To this principle [of sympathy] we ought to ascribe the great uniformity we may observe in the humours and turn of thinking of those of the same nation” (367). And finally, the anonymous author of Why Women Cannot be Turned Into Men (1872) attributes “female influence” to woman’s “habit of absorbing herself in the man, losing her identity in him, and living a kind of reflected life” (11-12). In this account, “female influence” comes very close to seeming like female erasure, and sympathy comes to seem like a kind of self-loss.

Debates regarding the exact nature of the relationship between husband and wife by no means ended with the passage of the 1870 Act, but legal reform did institutionalize the notion that the married woman constitutes an autonomous agent, responsible to and for herself. As such, it helped lay the groundwork for later legal developments: the 1882 Married Women’s Property Act, but also the 1918 Representation of the People Act that granted women over the age of thirty the right to vote in the United Kingdom. It also participated in a shift in the discourse of marital sympathy, from a situation in which difference and inter-dependence competed with similarity and equality as the basis of mutual understanding and affection, to one in which some degree of equality between the partners was widely recognized as a necessary precondition of a good marriage.

Rachel Ablow is the author of The Marriage of Minds: Reading Sympathy in the Victorian Marriage-Plot (2007) and the editor of a special issue of Victorian Studies on “Victorian Feeling” and of The Feeling of Reading: Affective Experience and Victorian Literature (2010). She is currently working on a project on Victorian pain.

HOW TO CITE THIS BRANCH ENTRY (MLA format)

Ablow, Rachel. “‘One Flesh,’ One Person, and the 1870 Married Women’s Property Act.” BRANCH: Britain, Representation and Nineteenth-Century History. Ed. Dino Franco Felluga. Extension of Romanticism and Victorianism on the Net. Web. [Here, add your last date of access to BRANCH].

WORKS CITED

Ablow, Rachel. The Marriage of Minds: Reading Sympathy in the Victorian Marriage Plot. Stanford: Stanford UP, 2007. Print.

Besant, Annie. Marriage; As It Was, As It Is, And As It Should Be. New York: Asa K. Butts, 1879. Print.

Blackstone, William. Commentaries on the Laws of England. Oxford: Clarendon Press, 1770. Print.

Cobbe, Frances Power. “Criminals, Idiots, Women, and Minors” Fraser’s Magazine 78 (Dec. 1868): 789. Print.

[Cornwallis, Cornelia Frances.] “The Property of Married Women.” Westminster Review 66 old ser. (Oct. 1856): 181-97. Print.

Ellis, Sarah Stickney. The Women of England, Their Social Duties, and Domestic Habits. 1839. New York: D. Appleton & Co., 1843. Print.

Holcombe, Lee. Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England. Toronto: U of Toronto P, 1983. Print.

Hume, David. A Treatise of Human Nature. 1739-40. London: Penguin Books, 1969. Print.

Lewis, Sarah. Woman’s Mission. 1839. Boston: William Crosby & Co., 1840. Print.

Mill, John Stuart. The Subjection of Women. 1869. Ed. Susan Moller Okin. Indianapolis: Hackett, 1988. Print.

O’Donovan, Katherine. “The Male Appendage—Legal Definitions of Women.” Fit Work for Women. Ed. Sandra Burman. New York: St. Martin’s, 1979. 134-52. Print.

[Oliphant, Margaret.] “The Laws Concerning Women.” Blackwood’s Edinburgh Magazine 79 (Apr. 1856): 379-87. Print.

[---.] “Mill on The Subjection of Women.” Blackwood’s Edinburgh Review 130 (Oct. 1869): 572-602. Print.

Poovey, Mary. Uneven Developments: The Ideological Work of Gender in Mid-Victorian England. Chicago: U Chicago P, 1988. Print.

Shanley, Mary Lyndon. Feminism, Marriage, and the Law in Victorian England, 1850-1895. Princeton: Princeton UP, 1989. Print.

Smith, Adam. The Theory of Moral Sentiments. 1759. Indianapolis: Liberty Classics, 1969. Print.

Staves, Susan. Married Women’s Separate Property in England, 1660-1833. Cambridge: Harvard UP, 1990. Print.

Stetson, Dorothy. A Woman’s Issue: The Politics of Family Law Reform in England. Westport: Greenwood P, 1982. Print.
Stone, Lawrence. The Family, Sex and Marriage in England, 1500-1800. New York: Harper & Row, 1977. Print.

Turner, James Grantham. One Flesh: Paradisal Marriage and Sexual Relations in the Age of Milton. Oxford: Oxford UP, 1987. Print.

Why Women Cannot Be Turned Into Men. Edinburgh and London: William Blackwood and Sons, 1872. Print.

RELATED BRANCH ARTICLES

Kelly Hager, “Chipping Away at Coverture: The Matrimonial Causes Act of 1857″

Anne Mellor, “On the Publication of Mary Wollstonecraft’s A Vindication of the Rights of Woman

Jill Rappoport, “Wives and Sons: Coverture, Primogeniture, and Married Women’s Property”

Anne Wallace, “On the Deceased Wife’s Sister Controversy, 1835-1907″


ENDNOTES

[1] Sections of this essay first appeared in the introduction to Rachel Ablow, The Marriage of Minds: Reading Sympathy in the Victorian Marriage Plot (Stanford: Stanford UP, 2007).

[2] Coverture was also referenced in debates about such issues as female education, the expansion of the franchise, and women’s access to professions. Holcombe’s book remains the most complete account of these debates. Also see Shanley, Stetson, Staves.

[3] As Poovey points out, these trusts were intended less to protect married women than to allow property to be passed from their fathers to their sons (72).

[4] Although the doctrine of coverture dates back to the middle ages, Holcombe explains that “when land was the chief form of property and wealth, the common law [of coverture] gave considerable protection to married women. . . . But . . . the common law did not serve well a society no longer feudal in structure nor chiefly agricultural in its pursuits” (6). The legal disability enforced by coverture was only exacerbated by the 1833 statute which enabled a husband to set aside his wife’s traditional right to one-third of his land after his death (5). It should be noted, however, that the interest in reforming coverture was initially the product less of a concern with women’s rights or these new burdens than of a more general commitment to the rationalization of the laws that was spearheaded by the Law Amendment Society, established in 1844.

[5] The term “domestic ideology” is commonly used to describe the Victorian notion that the home constitutes a refuge apart from the public sphere, that women are the natural inhabitants of that home, and that men’s responsibility is to preserve its sanctity and insulation from crass material or commercial concerns. Many commentators also saw this vision of home—and of the selfless woman who ideally presided over it—as a way to counter the marketplace’s effects on men: a way to guarantee men’s exposure to supposedly spiritual influences able to balance out the selfishness required in the marketplace. Because of the emphasis on the gender-specific separation of public and private spheres in domestic ideology, it is also sometimes referred to as “separate spheres ideology.” For more information on the details of the Married Women’s Property Act of 1870, please consult the other BRANCH entry on this topic (by Jill Rappoport, forthcoming) as well as the sources listed in n. 1.

[6] The internal quotation is from The Lawes Resolution of Womens Rights (1632).  For the source of this quote, see O’Donovan.

[7] Adam Smith’s The Theory of Moral Sentiments (1759) and David Hume’s Treatise on Human Nature (1739-40) were often referenced in the nineteenth century for their accounts of how sympathy serves as a counter to selfishness. Smith emphasizes the human desire for other people’s sympathy, arguing that we internalize our peers’ values in the form of an imaginary “impartial spectator” whose judgments we reference in making decisions. Hume, by contrast, attends to the ways in which feelings are contagious, and hence the consistency with which we are “infected” by the values and beliefs of those around us.