Religious and Legal Norms

T. E. (?), from The Law's Resolutions of Women's Rights; Or, the Law's Provision for Women

[Click on image to enlarge] This remarkable work, published in 1632, was designed by its still unknown author or compiler, who signed himself T. E., to help women understand how the law impinged on them in their three estates of life (unmarried virgin, wife, and widow). The text focuses especially on laws governing property and marriage, underscoring how few rights a woman enjoys while under the control of her father or guardian before marriage or when "under covert" in marriage — fused with her husband so that the two are legally one person, that is, the man. T. E.'s tone is often surprisingly ironic as he details these disabilities — including the fact that the husband may beat the wife — and points also to the freedom the widow enjoys when she is out from under such control, although then she is newly vulnerable to suitors who want to marry her fortune. Many women of the period, such as Anne Clifford, were engaged in lawsuits over property, contesting inheritances, or trying to collect jointures (see also Aemilia Lanyer's To Cooke-ham, NAEL 8, 1.1319 ).

Book I. (Of Maids)

Sect. ii. Now man and woman are one.

Now because Adam hath so pronounced that man and wife shall be but one flesh * * * and by this a married woman perhaps may either doubt whether she be either none or no more than half a person. But let her be of good cheer, though, for the near conjunction which is between man and wife and to tie them to a perfect love, agreement, and adherence, they be by intent and wise fiction of law, one person, yet in nature and in some other cases by the law of God and man, they remain diverse. For, as Adam's punishment was several from Eve's, so in criminal and other special causes our law argues them several persons. You shall find that persona is an individuum spoken of anything which hath reason and therefore of nothing but vel de angelo, vel de homine. >> note 1

Sect. iii. The punishment of Adam's sin.

Return a little to Genesis, in the third chapter whereof I declared our first parents' transgression in eating the forbidden fruit, for which Adam, Eve, the serpent first, and lastly, the earth itself is cursed. And besides the participation of Adam's punishment, >> note 2 which was subjection to mortality, exiled from the garden of Eden, enjoined to labor, Eve because she had helped to seduce her husband hath inflicted on her an especial bane. In sorrow shalt thou bring forth thy children, thy desires shall be subject to thy husband, and he shall rule over thee. See here the reason of that which I touched before, that women have no voice in parliament. They make no laws, they consent to none, they abrogate none. All of them are understood either married or to be married and their desires are subject to their husband. I know no remedy, though some women can shift it well enough.

Sect. iv. The ages of a woman. >> note 3

The learning is 35 Hen[ry] 6 fol. 40 that a woman hath diverse special ages. At the seventh year of her age, her father shall have aid of her tenants to marry her. At nine years age, she is able to deserve and have dower. At twelve years to consent to marriage. At fourteen to be hors du guard. >> note 4 At sixteen to be past the Lord's tender of a husband. At twenty one to be able to make a feoffement. And per Ingelton therein the end of the case. A woman married at twelve cannot disagree afterward. But if she be married younger, she may dissent till she be fourteen.

Sect. x. Of matrimony contracted in the present time, and who may contract.

Those which the Latins call puberes, that is, they which are come once to such state, habit, and disposition of body that they may be deemed able to procreate, may contract matrimony by words of the time present, for in contract of wedlock, pubertas is not strictly esteemed by number of years, as it is in wardship, but rather by the maturity, ripeness, and disposition of the body. There is further required in them which contract matrimony a sound and whole mind to consent, for he that is mad, without intermission of fury, cannot marry. And as they which are impuberes >> note 5 cannot for infirmity of age make any firm knot of wedlock, so likewise they which by coldness of nature, or by enchantment are impotent, be forbidden to contract.

* * *

Sect. xxi. The consummation and individuity of marriage.

When to the consent of the mind there is added copulation of body, matrimony is consummate[d], the principal end whereof is propagation or procreation. * * * In lawful wedlock, the knot whereof is so straight and indissoluble that they which are yoked therein cannot the one without the consent of the other (neither was it ever permitted) abdicate themselves, or enter into religion, for Saint Paul * * * saith plainly that the husband hath not power of his own body, etc. And there cannot chance any fedity >> note 6 or uncleanness of body so great as that for it a man and wife ought perpetually to be segregated, yea, so unpartable be they that law saith they may not utterly leave conjugalem consuetudinem, >> note 7 though one of them have the very leprosy itself.

Sect. xxii. Of divorce.

* * * And as no man can be compelled by any convention of pain or penalty to contract matrimony, so it is impossible, when it is once lawfully and evidently contracted, to distract >> note 8 it by any partition, covenant or human traction, Quos Deus conjunxit, homo non separet, >> note 9 yet there are causes for which divorces are permitted. But divorce, that only separateth a consuetudine conjugali >> note 10 taketh not away the bond of matrimony and * * * he that maketh divorce with his wife being separated only a toro >> note 11 is forbidden to take another wife.

Sect. xxiii. Causes of divorce.

The civil law >> note 12 hath many causes of divorce, but by divine and common law the only sufficient cause is adultery and fornication, which by canons is carnal and spiritual. The spiritual is heresy and idolatry. They dissolve matrimony for spiritual fornication only where one of the parties is converted to Christian faith and the other for hatred of his religion will not cohabit etc. And this is taken also from Saint Paul (1 Corinthians 7) where he saith, "If the unbelieving depart, let him depart, a brother or sister is not in subjection."

Sect. xxiv. Impotency or disability of procreation.

There is admitted also in dissolution of marriage the complaint of impotency. * * ** And this is more than a bare divorce or separation a toro, for it dissolveth marriage, avoiding >> note 13 it as it had never been. So that he or she whose fellow is convicted of impotency may choose a new friend and presently marry again. But this is to be understood of impotency which was before the marriage made. For, indeed, where the impediment was so precedent, there could not any matrimony exist or have being, etc.

Otherwise it is when this disability betideth after marriage perfected and consummate[d], for in that case, he or she which remaineth potent shall not leave and depart from the impotent, but be compelled to bear the discommodity as well as any other ill fortune.

Book III. (Of Wives)

As soon as a man and woman are knit and fast linked together in bands of wedlock, they are become in common parlance coniuges & consortes, >> note 14 yoke-fellows that in a[n] even participation must take all fortunes equally. Yet law permits not so great an intervallum >> note 15 betwixt them as society, which must alway[s] consist among two or more. Rather it affirms them to be una caro, >> note 16 regarded to many intents merely as one undivided substance.

Sect. i. When or how soon baron et feme >> note 17 are said to be one person.

* * * A woman is covert baron >> note 18 as soon as she is overshadowed with her husband's protection and supereminency.

Sect. vii. The baron may beat his wife.

* * * If a man beat an out-law, a traitor, a pagan, his villein, or his wife, it is dispunishable, because by the Law Common these persons can have no action. >> note 19 * * * [But] she may sue out of chancery to compel him to find surety of honest behavior toward her, and that he shall neither do nor procure to be done to her (mark, I pray you) any bodily damage, otherwise than appertains to the office of a husband for lawful and reasonable correction. How far that extendeth I cannot tell, but herein the sex feminine is at no very great disadvantage, for first for the lawfulness: if it be in none other regard lawful to beat a man's wife than because the poor wench can sue no action for it, I pray why may not the wife beat the husband again? What action can he have if she do? * * * So the actionless woman beaten by her husband hath retaliation left to beat him again, if she dare.

* * *

Sect. viii. That which a husband hath is his own.

But the prerogative of the husband is best discerned in his dominion over all the extern things in which the wife by combination divesteth herself of propriety in some sort and casteth it upon her governor, for here practice everywhere agrees with the theoric of law, and forcing necessity submits women to the affection thereof. Whatsoever the husband had before coverture either in goods or lands, it is absolutely his own; the wife hath therein no seisin >> note 20 at all. If any thing when he is married be given him, he taketh it by himself distinctly to himself. If a man have right and title to enter into lands, and the tenant enfeoffe >> note 21 the baron and feme, the wife taketh nothing. The very goods which a man giveth to his wife are still his own: her chain, her bracelets, her apparel, are all the good-man's goods. * * * A wife how gallant soever she be, glistereth but in the riches of her husband, as the moon hath no light but is the sun's.

Sect. ix. That which the wife hath is the husband's.

For thus it is, if before marriage the woman were possessed of horses, neat, sheep, corn, wool, money, plate, and jewels, all manner of moveable substance is presently by conjunction the husband's, to sell, keep, or bequeath if he die. And though he bequeath them not, yet are they the husband's executor's and not the wife's which brought them to her husband.

Sect. xxx. Of jointures.

* * * All husbands are not so unkind or untrusty as to endamage their wives by alienation of their lands. But contrariwise, the greatest part of honest, wise, and sober men are of themselves careful to purchase something for their wives. If they be not, yet they stand sometimes bound by the woman's parents to make their wives some jointure. >> note 22

Book IV. (Regarding Widows)

Death * * * hath called her husband hence, left the house full of mourning, and specially the wife cannot choose but sorrow and lament.  * * * She hath understanding and speech, firm memory, love natural, desire of glory and reputation, with the accomplishment of many meritorious virtues. But, alas, when she hath lost her husband, her head is cut off, her intellectual part is gone, the very faculties of her soul are (I will not say) clean taken away, but they are all benumbed, dimmed, and dazzled, so that she cannot think or remember when to take rest or recreation for her weak body. And though her spirits and natural moisture being inwardly exhausted with sorrow and extreme grief, she be called and enforced to seek restauration by such aliments >> note 23 as life is prolonged by, yet is she nothing desirous of life, having lost a moiety >> note 24 of herself, yea the principal moiety now best prized and esteemed, but never best loved. Time must play the physician, and I will help him a little. Why mourn you so, you that be widows? Consider how long you have been in subjection under the predominance of parents, of your husbands; now you be free in liberty, and free * * * at your own law; you may see * * * that maidens' and wives' vows made upon their souls to the Lord himself of heaven and earth were all disavowable and infringable by their parents or husbands unless they ratified and allowed them, either express or by silence at the day when such vows came first to their notice and knowledge. But the vow of a widow or of a woman divorced, no man had power to disallow of, for her estate was free from controlment Must a woman needs weep thus for the loss of her buckler, shield, and defense in the person of him with whom she held daily commutation >> note 25 of all offices proceeding from love and superlative kindness? Let her learn to cast her whole love and devotion on him that is better able to love and defend her than all the men in the world. Him I mean that hath forbidden to afflict widows and orphans, with promise to hear their cries and vindicate their wrongs, >> note 26 by killing them by the sword and making the wives widows and their children fatherless of them which break this commandment. Then, because a sober carefulness and moderate sedulity >> note 27 in business of profit or disprofit doth mitigate greatly the sorrowing for such actions, as opinion or fancy makes thus grievous, let her look to her affairs as cause and need requireth.

* * *

Sect. xx. Of Rape.

* * * When sweet words, fair promises, tempting, flattering, swearing, lying will not serve to beguile the poor soul, then with rough handling, violence, and plain strength of arms, they are or have been heretofore rather made prisoners to lust's thieves than wives and companions to faithful honest lovers. So drunken are men with their own lusts and the poison of Ovid's false precept, "Vim licet appellant, vis est ea grata puellis" >> note 28 that if the rampier >> note 29 of laws were not betwixt women and their harms, I verily think none of them being above twelve years of age and under an hundred, being either fair or rich, should be able to escape ravishing. This is therefore a matter concerning maids, wives, widows, and women of all degrees and conditions, if either they be or possess anything worth the having.

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