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Note that this entry is a product of its time, and should be read in that context. Footnotes have been omitted to make the text easier to follow. Also note that scanning and editing may have introduced a few errors into the transcription. Because of these errors, if you need to use this information in an academic paper, please consult the original, available at many libraries.

This continues the entry under "Women" in the 1911 Encyclopedia Britannica.

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Criminal Law.?There are some offences which can be committed only by women, others which can be committed only against them. Among the former are concealment of birth (in ninety-nine cases out of a hundred), the now obsolete offence of being a common scold, and prostitution and kindred offences. Where a married woman commits a crime in company with her husband, she is generally presumed to have acted by his coercion, and so to be entitled to acquittal. This presumption, however, was never made in witchcraft cases, and is not now made in cases of treason, murder and other grave crimes, or in crimes in which the principal part is most usually taken by the wife, such as keeping a brothel. In fact, the exceptions to the old presumption are now perhaps more numerous

The action for breach of promise of marriage is in some of its incidents peculiar to English law. In Roman law, betrothal (spansalia) imposed a duty on the betrothed to become husband and wife within a reasonable time, subject to the termination of the obligation by death, repudiation by the words conditione lua non utor, or lapse of time, the time fixed being two years. No action lay for breach of promise to marry unless arrhae sponsalitiae had been given, i.e. earnest of the bargain, to be forfeited by the party refusing to carry it out. The arrha might also be given by a parent, and was equally liable to forfeiture. A provincial governor, or one of his relations or household, could not recover any arrho that might have been given, it being supposed that he was in a position of authority and able to exercise influence in forcing consent to a betrothal. In the canon law breach of the promise made by the sponsalia, whether de Praesenti or de futuro, a division unknown to Roman law, does not without more appear to have sufficed to found an action for its breach, except so far as it fell under ecclesiastical cognizance as laesio fidel, but it had the more serious legal effect of avoiding as a canonical disability the subsequent marriage, while the original sponsalia continued, of a betrothed person to any other than the one to whom he or she was originally betrothed. The sponsalia became inoperative, either by mutual consent or by certain supervening impediments, such as ordination or a vow of chastity. The canonical disability of pre-contract was removed in England by 32 Her. VIII. c. 38, re-established in the reign of Edward VI., and finally abolished in 1753. In England the duty of the parties is the same as in Roman law, viz, to carry out the contract within a reasonable time, if no time be specially fixed. Formerly a contract to marry could be specifically enforced by the ecclesiastical court compelling a celebration of the marriage in facie ecclesiae. The last instance of a suit for this purpose was in 1752, and the right to bring it was abolished in 1753 by Lord Hardwicke's Act (26 Geo. II. c. 33). In Scotland a promise in the nature of sponsalia defuturo not followed by consummation may be resiled from, subject to the liability of the party in fault to an action for the breach, which by 6 Geo. IV. c. 120, S. 28, is a proper cause for trial by jury. If, however, the sponsalia be de praesenti, and, according to the more probable opinion, if they be de futuro followed by consummation, a preContract is constituted, giving a right to a decree of declarator of marriage and equivalent to marriage....

The doctrine of coercion and the practice of separate acknowledgment of deeds by married women (necessary before the Married Women's Property Act) seem to be vestiges of the period when women, besides being chattels, were treated as chattels. Formerly a wife could not steal her husband's property, but since the Married Women's Property Act this has become possible. Adultery is no crime, England being almost the only country where such is the case. It was punished by fine in the ecclesiastical courts up to the 17th century, and was made criminal for a short time by an ordinance of the Long Parliament. The offences which can be committed only against women are chiefly those against decency, such as rape, procurement and similar crimes, in which a considerable change in the law in the direction of increased protection to women was made by the Criminal Law Amendment Act 1885. In regard to the protection given to a wife against her husband modern legislation has considerably strengthened the wife's position by means of judicial separation and maintenance in case of desertion. The whipping of female offenders was abolished in 1820. Chastisement of a wife by a husband, possibly at one time lawful to a reasonable extent, would now certainly constitute an assault. The husband's rights are limited to restraining the wife's liberty in case of her misconduct.

In Scotland the criminal law differs slightly from that of England. At one time drowning was a punishment specially reserved for women. Incest, or an attempt to commit incest, has always been punishable as a crime. Adultery and fornication are still nominally crimes, but criminal proceedings in these cases have fallen into desuetudê. The age of testamentary capacity is still twelve, not twenty-one, as in England.

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More of this article: General | Mosaic Law, Ancient India | Roman Law | Christian Law  | Northern Europe Law | English Law | Husband and Wife | Criminal Law | Education | Professions | Nursing and Medicine | Government and Politics | Women Practicing Law | Women as Clergy | Women's Rights Agitation | Woman Suffrage | Woman Suffrage 1865-1906 | Woman Suffrage 1906-1910 | Woman Suffrage Societies | Woman Suffrage New Zealand and Australia | Woman Suffrage America | Woman Suffrage Europe | Woman Suffrage International | Sources

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Part of a collection of etexts on women's history produced by Jone Johnson Lewis. Editing and formatting © 1999-2003 Jone Johnson Lewis.