ABSTRACT

In December 1868, Fraser's Magazine carried an article by Frances Power Cob be, the feminist activist and writer, entitled 'Criminals, idiots, women and minors. Is the classification sound?'1 Laying out 'the four categories under which persons are now excluded from many civil, and all political rights in England' (Lacey, 1987, p.380), Cobbe launched a stinging attack on 'the most striking instance wherein the existing principle presses upon women, and where its injustice appears most distinctly-namely, in the regulation of the Property of Married Women under the Common Law' (p.381).2 To show how fundamental and invisible this process of regulation was in English society, Cobbe pointed to the central irony at the heart of the marriage ceremony. In a brief humorous sketch, a visitor from another planet accompanied by a friendly guide enters a village church where a wedding is in progress:

'You don't say so? But then, of course, his goods are hers also?' 'Oh dear, no! not at all. He is only bound to find her food; and, truth to

tell, not very strictly or efficaciously bound to do that'. 'How! Do I understand you? Is it possible that here in the most solemn

longer a feme sole but a feme covert, or 'covered' woman, she was powerless to sell her real property while she was married, and since she retained no separate identity from her husband, she could not make contracts, nor sue or be sued, nor make her own will (see Appendix 1). Only under the law of equity, which protected the remaining ten per cent of women (that is, the wealthy), could wives, by the complicated and expensive expedient of trusts, avoid the penalties of coverture. As Mill pointed out in The Subjection of Women, however, equity law actually gave women no rights at all, since marriage settlements only protected their property, or, more correctly, the property of their fathers, from the common-law rights of their husbands. A married woman's property protected in equity, that is to say, was as much a form of financial dependence as a widow's income provided by trusts or life assurance policies set up by her husband.5