period. The laws of Ine gave her a third of her husband's property; the laws of Edmund as to betrothal allowed this to be increased to half by ante nuptial contract, to the whole if she had children and did not re-marry after her husband's death. No doubt the dower ad ostium ecclesiae favoured by the church generally superseded the legal rights where the property was large (in fact this is specially provided by Magna Carta, c. 7). “Provisio hominis tollit provisionem legis.” The legal rights of a married woman apart from contract were gradually limited, until by the time of Glanvill her person and property had become during her husband's lifetime entirely at his disposal, and after his death limited to her dower and her pars rationabilis.
A few of the more interesting matters in which the old common and statute law of England placed women in a special position may be noticed. A woman was exempt from legal duties more particularly attaching to men and not performable by deputy. She could apparently originally not hold a proper feud, i.e. one of which the tenure was by military service.[1] The same principle appears in the rule that she could not be endowed of a castle maintained for the defence of the realm and not for the private use of the owner. She could receive homage, but not render it in the form used by men, and she was privileged from suit and service at the sheriff's tourn. She was not sworn to the law by the oath of allegiance in the leet or tourn, and so could not be outlawed, but was said to be waived. She could be constable, either of a castle or a vill, but not sheriff, unless in the one case of Westmorland, an hereditary office, exercised in person in the 17th century by the famous Anne, countess of Dorset, Pembroke and Montgomery. In certain cases a woman could transmit rights which she could not enjoy. On such a power of transmission, as Sir H. Maine shows,[2] rested the claim of Edward III. to the crown of France. The claim through a woman was not a breach of the French constitutional law, which rejected the claim of a woman. The jealousy of a woman's political influence is strikingly shown by the case of Alice Perrers, the mistress of Edward III. She was accused of breaking an ordinance by which women had been forbidden to do business for hire and by way of maintenance in the king's court.[3]
By Magna Carta a woman could not accuse a man of murder except of that of her husband. This disability no doubt arose from the fact that in trial by battle she naturally did not appear in person but by a champion. She was not admitted as a witness to prove the status of a man on the question arising whether he were free or a villein. She could not appoint a testamentary guardian, and could only be a guardian even of her own children to a limited extent. Her will was revoked by marriage, that of a man only by marriage and the subsequent birth of a child. By 31 Hen. VI. c. 9 the king's writ out of chancery was granted to a woman alleging that she had become bound by an obligation through force or fraud. By 39 Hen. VI. c. 2 a woman might have livery of land as heiress at fourteen. Benefit of clergy was first allowed to women partially by 21 Jac. I. c. 6, fully by 3 Will. & M. c. 9 and 4 and 5 Will. & M. c. 24. Public whipping was not abolished until 57 Geo. III. c. 75, whipping in all cases until 1 Geo. IV c. 57. Burning was the punishment specially appropriated to women convicted of treason or witchcraft. A case of sentence to execution by burning for petit treason occurred as lately as 1784. In some old statutes very curious sumptuary regulations as to women's dress occur. By the sumptuary laws of Edward III. in 1363 (37 Edw. III. cc. 8-14) women were in general to be dressed according to the position of their fathers or husbands. Wives and daughters of servants were not to wear veils above twelve pence in value. Handicraftsmen's and yeomen's wives were not to wear silk veils. The use of fur was confined to the ladies of knights with a rental above 200 marks a year. Careful observance of difference of rank in the dress was also inculcated by 3 Edw. IV. c. 5. The wife or daughter of a knight was not to wear cloth of gold or sable fur, of a knight-bachelor not velvet, of an esquire or gentleman not velvet, satin or ermine, of a labourer not clothes beyond a certain price or a girdle garnished with silver. By 22 Edw. IV. c. 1, cloth of gold and purple silk were confined to women of the royal family. It is worthy of notice that at the times of passing these sumptuary laws the trade interests of women were protected by the legislature. By 37 Edw. III. c. 6, handicraftsmen were to use only one mystery, but women might work as they had been accustomed. 3 Edw. IV. c. 3 forbade importation of silk and lace by Lombards and other alien strangers, imagining to destroy the craft of the silk spinsters and all such virtuous occupations for women. In some cases the wives and daughters of tradesmen were allowed to assist in the trades of their husbands and fathers; see, for instance, the act concerning tanners, 1 Jac. I. c. 22. Some trading corporations, such as the East India Company, recognized no distinction of sex in their members. The disabilities imposed on women by substantive law are sometimes traceable in the early law of procedure. For instance, by the Statute of Essoins (12 Edw. II. st. 2), essoin de servitio regis did not lie where the party was a woman; that is, a woman (with a few exceptions) could not excuse her absence from court by alleging that she was on public duty. The influence of the church is very clearly traceable in some of the earlier criminal legislation. Thus by 13 Edw. I. st. 1, c. 34, it was punishable with three years' imprisonment to carry away a nun, even with her consent. The Six Articles, 31 Hen. VIII. c. 14, forbade marriage and concubinage of priests and sanctioned vows of chastity by women.
In Scotland, as early as Regiam Majestatem (12th century) women were the object of special legal regulation. In that work the mercheta mulieris (probably a tax paid to the lord on the marriage of his tenant's daughter) was fixed at a sum differing according to the rank of the woman. Numerous ancient laws dealt with trade and sumptuary matters. By the Leges Quatuor Burgorum female brewsters making bad ale were to forfeit eightpence and be put on the cucking-stool, and were to set an ale-wand outside their houses under a penalty of fourpence. The same laws also provided that a married woman committing a trespass without her husband's knowledge might be chastised like a child underage. The Statuta Gilde of the 13th century enacted that a married woman might not buy wool in the streets or buy more than a limited amount of oats. The same code also ensured a provision for the daughter of one of the gild-brethren unable to provide for herself through poverty, either by marrying her or putting her in a convent. By the act 1429, c. 9, wives were to be arrayed after the estate of their husbands. By 1457, c. 13, no woman was to go to church with her face covered so that she could not be known. 1581, c. 18, was conceived in a more liberal spirit, and allowed women to wear any head-dress to which they had been accustomed. 1621, c. 25, permitted servants to wear their mistress's cast-off clothes. 1681, c. 80, contained the remarkable provision that not more than two changes of raiment were to be made by a bride at her wedding. In its more modern aspect the law is in most respects similar to that of England. (J. W.)
In separate legal articles attention is drawn, on various subjects, Modern English law specially affecting women. to any special provisions or disabilities affecting women; see, for instance, Evidence, Divorce, Marriage, Children (Law relating to), Infant, Husband and Wife. The movement for removing the older disabilities has progressed at such different rates in various countries that it is impossible to do more than note here the chief distinctions remaining under English law in 1910.
Civil Rights.—The age at which a girl can contract a valid marriage, in English law, is, following the Roman law, twelve; she is thus two years in advance of a boy, who must be fourteen. Under the Infants Settlement Act 1855, a valid settlement could be made by a woman at seventeen with the approval of the court, the age for a man being twenty; by the Married Women's Property Act 1907 any settlement by a husband of his wife's property is not valid unless executed by her if she is of full age, or confirmed by her after she attains full age. An unmarried woman is liable for the support of illegitimate children till they attain the age of sixteen. She is generally assisted, in the absence of agreement, by an affiliation order granted by magistrates. A married woman having separate property is, under the Married Women's Property Acts 1882 and 1908, liable for the support of her parents, husband, children and grandchildren becoming chargeable to any union or parish. At common law the father was entitled as against the mother to the custody of a legitimate child up to the age of sixteen, and could only forfeit such right by misconduct. But the Court of Chancery, wherever there was trust property and the infant could be made a ward of court, took a less rigid view of the paternal rights and looked more to the interest of the child, and consequently in some cases to the extension of the mother's rights at common law. Legislation has tended in the same direction. By the Infants' Custody Act 1873, the Court of Chancery was empowered to enforce a provision in a separation deed, giving up the custody or control of a child to the mother. The Judicature Act 1873, § 25 (10), enacted that in questions relating to the custody and education of infants the rules of equity should prevail. The Guardianship of Infants Act 1886 largely extended the mother's powers of appointing and acting as a guardian, and gave the court a discretion to regard the mother's wishes as to the custody of the children. The Summary Jurisdiction (Married Women) Act 1895 enabled a court of summary jurisdiction, to whom a married woman has made application, to commit to the applicant the custody of any children of the marriage between the applicant and her husband, while under the age of sixteen years.
