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Published online by Cambridge University Press: 02 January 2018
In the Statute of Westminster II (1285) c. 34, it was enacted that a widow could lose her action of dower, and the possibility of claiming the usual proportion of her deceased husband's real property, if, while he was alive, she had left him for a lover, and the married couple had not been reconciled during the husband's life. This new exception to the action of dower represented an important change in the balance between a widow and her husband's heir, or others with an interest in lands she might claim as her dower, and is therefore of great significance to the history of women, law and property in the common law world. The exception remained part of the law of England until dower itself was abolished in 1925, but, although the early years of the exception have been explored, its later history is less well known. As this paper will show, there was a slow and contested move away from the early literal and relatively ‘widow-friendly’ interpretation of c. 34 to a purposive, more moralising and much more ‘widow-unfriendly’ view, influenced by the opinion of Sir Edward Coke (1552–1634), and encouraged by a number of other legal and social factors.
Versions of this paper were presented at the University of Reading Legal History Seminar and the Society of Legal Scholars Conference in 2012. I am grateful for the comments received on those occasions.
1. Statutes of the Realm I, 87: ‘si sponte reliquerit virum suu[m] & abierit & moretur cum adultero suo, amittat imperpetuum accionem petendi dotum suam … si super hoc convincetur …’ [a wife proved to have left her husband of her own free will and to have gone to live with ‘her adulterer’ would lose her action to claim dower] – unless the husband had been reconciled with her and had allowed her to cohabit with him again, the reconciliation being voluntarily on his part and without ecclesiastical coercion.
2. Administration of Estates Act 1925, s 45 (c).
3. P Brand ‘“Deserving” and “undeserving” wives: earning and forfeiting dower in medieval England’ (2001) 22 J Legal Hist 1–20; Seabourne, G ‘Copulative complexities: the exception of adultery in medieval dower actions’ in edited by Dyson, M and Ibbetson, D (eds) Law and Legal Process (Cambridge: Cambridge University Press, 2013 Google Scholar, forthcoming).
4. See eg the claims of beating, mistreatment and injury in Matilda, widow of Nicholas Credelman, v William Fouke (1373) TNA (The National Archives) CP 40/455m. 454.
5. See Baker, Jh Introduction to English Legal History (London: Butterworths, 4th edn, 2002) pp 483–489 Google Scholar.
6. Seipp 1307.067rs; YB 35 Edw. I Trin. pl 5; CP 40/164m. 251, Simon de Lyndeseye and Isabel his wife v Ralph son of William.
7. 10 Common Bench Reports (NS) 722.
8. Bostock v Smith (1864) 4 Beavan 57; National Archives (TNA) C 16/118/B109.
9. Musson, A ‘Sir Edward Coke and his Institutes of the Laws of England: an exercise in legal history?’ (2006) 31 Archives 95–107 Google Scholar, 95.
10. Baker, Jh ‘Coke's notebooks and the sources of his reports’ in The Legal Profession and the Common Law (London: Hambledon Press, 1986) pp 177–203 Google Scholar, 195.
11. 2 Inst. 435.
12. Bennion, Far Statutory Interpretation (London: Butterworths, 2002) pp 400 Google Scholar, 401, 406; Eyston v Studd (1574) 2 Plowden 459, 75 ER 692; Stradling v Morgan (1560) 1 Plowd 199, 75 ER 305; Co. Inst. I, 24b; IV, 330; Heydon's case (1584) 3 Co. Rep 7a, 7b; Bl. Comm., iii, 222; Baker, above n 10, p 194.
13. He took a very literal line on the requirements for showing reconciliation under c. 34, but a purposive, anti-literal approach when considering what had to be shown in order for the exception to be made out. In both cases, he chose the interpretation that was less favourable to the widow. Likewise (II, 436), while was not prepared to follow the wording of the statute in insisting that both willing leaving and staying away had to be shown, he used close study of the statute's words to assert that the woman did not need to remain in adultery: as long as she committed it, once, that would be a ‘tarrying’ within the statute, even if the adulterer subsequently kept her against her will.
14. In his first Institute, Coke was, however, relatively generous with regard to the lands to which dower would apply, in cases of reconciliation after an adulterous elopement: Co. Litt. 33a note 8, Menvill's Case, 13 Co. Rep. 33; see Phillips, M ‘Dower: effect of adulterous separation and subsequent condonation’ (1952) 7 Intramural Rev NYU 262–264 Google Scholar, 262.
15. See Seabourne, above n 3. Note also that cases of the mid-fourteenth century suggest that there was greater emphasis on the elopement aspect than the adultery aspect of pleading. In Seipp 1330.607 (JUST 1/633m. 53; YB 4 Edw. III Hil. pl 158), Scrope CJ stated that the tenant ‘need not specify the time or place where [the woman] lived with her lover, but only the place where she left her husband’. In Seipp 1332.104, which I identify as Eufemia widow of John le Breton v John de Heselarton and William de la Pole (1332) CP 40/291, unnumbered membrane between m.173 and 174, the widow attempted to argue that the tenant was obliged to plead that she had remained away in adultery, and that failure to do so rendered the exception ineffective. This did not succeed, however, and the widow was driven to plead that she did not leave her husband as mentioned. See also Seipp 1329.086 YB T. 3 Edw III, f 23b pl 9, which I identify with CP 40/278m. 21; J Rastell, Termes de la Ley (London: printed by the assignes of Iohn More, 1636 [1527]) p 142 definition of ‘elopement’.
16. See Thorne, SE (ed) Readings and Moots at the Inns of Court, Selden Society 71(London: Bernard Quaritch, 1954 [1952]) pp 97 Google Scholar, lxxviii, lxxxi, lxxxiii, lxxxvi, xcii; Fitzherbert, A La Nouel Natura Breuium (London: In Ædibus Thomæ Bertheleti, 1534) p 171 Google Scholar.
17. TNA CP 40/1945m. 1559, William Grene and Eleanor his wife v Sebastian Harvye and Maria his wife ; Viner, C A General Abridgement of Law and Equity (Aldershot, 23 vols, 1792) vol IX, p 241 Google Scholar.
18. Musson, above n 9, 100; Ibbetson, D ‘Law reporting in the 1590s’ in Stebbings, C (ed) Law Reporting in Britain (London: Hambledon Press, 1995) pp 73–74 Google Scholar, 80–87.
19. Sir Sebastian Harvye, son of a mayor and himself an alderman 1609, sheriff 1609–1610 , mayor 1618–1619: Thornbury, W Old and New London vol I (London: Cassell, 1878) p 400 Google Scholar; Beaven, Ap The Aldermen of the City of London Temp. Henry III – 1912 (London: Eden Fisher for the Corporation of the City of London, 1908) p 179 Google Scholar.
20. This case falls into the period of Coke's lost notebooks: the manuscripts designated F and G in Baker's study: Baker, above n 10, pp 177–203 , 180.
21. Thomas, K ‘The Puritans and adultery: the Act of 1650 reconsidered’ in Pennington, D and Thomas, K (eds) Puritans and Revolutionaries (Oxford: Clarendon Press, 1978) pp 257–282 Google Scholar; Lords Journal i, 215, 221, 224, 226; wes, S D'E The Journals of all the Parliaments during the Reign of Queen Elizabeth (London: Starkey, 1682) p 641 Google Scholar; Notestein, W et al (eds) Commons Debates 1621 (New Haven, CT: Yale University Press, 7 vols, 1935) p vii, 629 Google Scholar. A great desire to act against adultery persisted in some circles, leading to success in passing penal legislation against adultery later in the seventeenth century: see further below.
22. Musson, above n 9, 103 .
23. Nicholls, F. (ed) Britton (Oxford, 2 vols, 1865) vol II, p 281 Google Scholar. A [tenant] may say that she has forfeited and lost dower by her adultery, in that she went away from her husband after he married her for the bed of another, and so she forfeited her dower.
24. CP 40/130m. 154d (1299); RP I, 146–147 (1302); Pollock, F and Maitland, Fw The History of English Law before the Time of Edward I (Cambridge: Cambridge University Press, 2nd edn, 2 vols, 1968) vol II, pp 395–396 Google Scholar.
25. In a connected plea roll entry, the widow denied adulterous elopement, explaining that she had been living with William, the alleged adulterer, for innocent reasons, for her sustenance and that of her (legitimate) children, bringing herself within the same category as a number of previous widows. The case set out in the Parliament Rolls, however, was both fuller and stranger, relying on the deceased husband's ‘demise’ of Margaret (rather than, as in the Plea Roll, a piece of land), to William, and using this to deny that Margaret had lived with William in adultery. TNA CP 40/130m. 154 (1299). For later confirmation that a ‘wife demise’ did not assist a claimant in such cases, see Coot v Berty, 12 Mod. 232.
26. This was a requirement of c. 34.
27. One might wonder why this was thought to be an argument against the exception: was a departure with the husband's consent not really a departure from him, or was the wife's will thought to be overborne by the husband's to such an extent that, if he consented to the departure, it could not truly be regarded as sponte on her part?
28. Note that the failure to examine cases in the Plea Rolls may be understandable, due to the ‘chaotic’ state of the public records in Coke's day: Musson, above n 9, 97.
29. Seipp 1315.120ss; Sutherland, Dd The Eyre of Northamptonshire 3–4 Edward III (1329–30) (London: Selden Society, 2 vols, 1983) vol II, pp 793–794 Google Scholar.
30. Seipp 1345.104rs; YB 19 Edw. III Trin, pl 5.
31. Coke 2 Inst. 435, referring to YB 43 Edw. III f 19.
32. This case was as much about integrating a copulative statutory provision into the common law pleading rules as it was about interpretation of the statute itself. On pleading, see Baker, above n 5, pp 76–78.
33. 6 Ric. II st. 1c. 6. In Lyndeseye, Herle had argued that the widow's going to her adulterer (and allegedly marrying him during her husband's life) had demonstrated her willingness to leave in the first place. Similar arguments can be seen in Ropet v Anon , and in Tyryngton.
34. See RP, vol 4, p 408b, and eg Ralph Haworth Esq. and Lady Anne Powes his wife v John Herbert and his wife 73 ER 235, 2 Dyer 106b.
35. Co. Litt., 31 citing a maxim attributed to Ockham, describing dos as praemium pudoris, ie a reward or recompense for decency or modesty. Again, Coke is straining a point by using a quotation that is probably about pecuniary or chattel dowry and nothing to do with land-based, common law dower to back up his assertions on this English institution. On dowries and the medieval academic discourse to which the idea quoted in Coke more properly belongs, see Wei, Ip ‘Gender and sexuality in medieval academic discourse: marriage problems in Parisian quodlibets’ (2011) 31 Mediaevalia 5–34 Google Scholar.
36. Coke 2 Inst. 435–436.
37. See above n 14. Dower was relatively easily avoided in Coke's era, by employing the jointure, and was not the subject of the sort of condemnation that it would receive in the nineteenth century.
38. See Boyer, Ad ‘Sir Edward Coke 1552–1634’ in Matthew, C and Harrison, B (eds) Oxford Dictionary of National Biography, online edition, http://www.oxforddnb.com Google Scholar; James I State Papers Domestic 1611–18, 468 , 469, 471, 495, 515, 530; Turner, J ‘Concerning divers notable stirs between Sir Edward Coke and his lady’ (1917) 51 Am L Rev 883–903 Google Scholar.
39. See eg Ross, E ‘The case of the crying bride: gossip letters about the wedding of Frances Coke’ (2009) 40 Comitatus 231–247 CrossRefGoogle Scholar; Turner, above n 38, 883, 900, 902.
40. Intriguingly, Frances came to live with her father during the last years of his life, and may even have embroidered a cover for some of his legal writings: Baker, above n 10, p 180. It should also be borne in mind that Coke's legal life spanned a time of uncertainty as to the lines that divorce law would take in a Protestant England: Stone, L The Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1992 Google Scholar) ch X. Important issues about matrimonial behaviour and the consequences of marriage breakdown were ‘up for debate’.
41. See further below. Note that not all those of high social station avoided dower, and that there were cases in which c. 34 was pleaded: see Elizabeth Lady Dowager Boyne v Frederick Hamilton (1773) Irish Morning Chronicle and London Advertiser, 28 August 1773.
42. The jointure was an alternative to dower. Concluded by agreement rather than arising as of right, it gave a widow a life interest in a stipulated amount of property, rather than in the one-third that was the rule in dower. See eg Statute of Uses 1536, cc. 4–7, Co. Litt., 37b; Bl. Comm. II, p 137. Jointures were not subject to an adultery exception: Field v Serres (1804) 1 Bos. & Pul. NR 123; 127 ER 405; Sidney v Sidney 3 P Wms 269 (1734) (where the argument was made that equity should follow the law and disallow enforcement of marriage articles where there had been adultery on the wife's part); Blount v Winter 3 Cox's P Wms 276; Ball v Montgomery (1793) 29 ER 924, Richardson v Fry, Morning Post, 15 May 1826, CCP.
43. 1 Keble 337, at 341. 83 ER 980, citing the 1572 case of Sir John Stowell (or Stawel) and Mary, his wife, on which, see: Stone, above n 40, p 305; Sir Dibdin, L and Sir Chadwyck Healey, Ceh English Church Law and Divorce (London: John Murray, 1912) pp 82–92, 152–153 Google Scholar; GD Stawell ‘A Quantock family: the Stawells of Cothelstone and their descendants the barons Stawell of Somerton and the Stawells of Devonshire and the County Cork’ (1910). Mary Stowell's assignment of dower: TNA C142/687/213-5.
44. Anon, Baron and Feme: A Treatise of the Common Law Concerning Husbands and Wives (London, 1700) p 90 Google Scholar.
45. Comyns, J A Digest of the Laws of England (London: printed for H Woodfall and W Strahan, for John Knapton, Thomas Longman and Robert Horsfield, 1762 Google Scholar).
46. Gilbert, G The Law of Uses and Trusts Together with a Treatise of Dower (London: in the Savoy: printed by E and R Nutt, and R Gosling (assigns of E Sayer, Esq) for R Gosling, 1734) p 402 Google Scholar.
47. Viner, above n 17, vol IX, pp 240 , 242.
48. Bl, Comm. Book II, c. 8, s 1, 1st edn (Oxford, 1766) p 130 Google Scholar. Cites only Co. Lit., not 2 Inst. 435–436. See also the ‘copulative’ interpretation in Beawes, W Lex Mercatoria, or a Complete Code of Commercial Law 6th edn, Chitty, J (ed) (London: printed for FC and J Rivington, 2 vols, 1813) vol 1 Google Scholar, 694.
49. 6 Bing. 135.
50. The woman's case might have been an attempt to argue that the husband's consent to her going meant that she had not, in fact ‘left’ him, but this was not spelled out, and the court did not take it in this way.
51. Morning Post , 1 July 1829; Morning Chronicle , 7 July 1829.
52. Smith Bell, S The Law of Property as Arising from the Relation of Husband and Wife (Philadelphia, PA: T & JW Johnson, 1850) p 250 Google Scholar.
53. See arguments of Henrietta Woodward's counsel, Wills, in Woodward v Dowse, at 725.
54. Note also that, in King v King, a court resisted the suggestion that a widow should be barred of her dower if she had, as alleged, committed adultery with ‘divers men’ at home (though in the absence of – and living separately from – her husband, who was confined on grounds of lunacy): King v King, Morning Post, 22 February 1837 (Vice Chancellor's Court).
55. 10 Common Bench Reports (NS) 722.
56. The discussion of Paynel's Case caused hilarity in court, laughter breaking out when it was mentioned that the wife in the case had been assigned to the alleged adulterer ‘with all her appurtenances’: Daily News, 21 June 1861, ‘Law intelligence’. Note that this case was ‘rediscovered’ periodically – see eg ‘Sale of wives’, St James Chronicle or the British Evening Post, 19 January 1790.
57. Woodward v Dowse , at 730.
58. 4 Beavan 57.
59. Some depositions and other documents relating to this case survive – TNA C 16/118/B109 – but, contain no details of the ‘gross misconduct’.
60. Theory of statutory interpretation was a matter of debate in the nineteenth century, with different emphases placed on literalism and purposive interpretation; see eg Dwarris, F General Treatise on Statutes and Their Interpretation (Philadelphia, PA: JS Littell, 1835 Google Scholar).
61. First Report of the Real Property Commissioners (1829), House of Commons Sessional Papers 1829, x. 1, at 408, Nassau William Senior Esq. See also: JA Christie, p 274 .
62. See eg Statute of Uses, preamble, Banks v Sutton (1732), 2 P. Wms 702–703 on the wife's ‘moral right to a dower’. Lawyers had, however, been content to follow cases that held that there was no dower in equitable property, despite the fact that they had a somewhat unconvincing pedigree. Staves, S Married Women's Separate Property in England 1660–1833 (Cambridge, MA: Harvard University Press, 1990) p 17 Google Scholar, c. 2; Chaplin v Chaplin (1733) 3 P. Wms 229. Note that, at 44, she shows that there were cases from the 1650s to 1732, which did allow dower of equitable property.
63. Note, however, that some saw evasion of dower as morally suspect: Hansard HC Deb, col 698, 14 June 1832.
64. First Report , above n 61, at 8, 16; Morning Chronicle, 19 June 1829.
65. Houghton v Lee, Morning Chronicle, 2 November 1807.
66. First Report , above n 61, at 8, 16. Morning Chronicle, 19 June 1829.
67. Dower did not apply to equitable property: Anderson, JS ‘Property law’ in Cornish, W et al Oxford History of the Laws of England vol XII: 1820–1914, Private Law (Oxford: Oxford University Press, 2010) pp 1–294 Google Scholar, 129.
68. First Report , above n 61, at 18.
69. Ibid, at 491.
70. Ibid, at 258.
71. Park, JJ A Treatise on the Law of Dower (Philadelphia, PA: JS Littell, 1836) p 2 Google Scholar.
72. First Report , above n 61, at 490, John Tyrell: ‘it is not in more than one case out of several hundreds that a widow is entitled to dower out of the real estates of her husband’.
73. First Report , above n 61, at 17.
74. Sokol, M ‘Jeremy Bentham and the Real Property Commission of 1828’ (1992) 4 Utilitas 225–245 CrossRefGoogle Scholar, 235.
75. Morning Post, 4 April 1827, ‘Petition of the Ladies of Great Britain to the Lord Chancellor’. Note the letters in the same paper, on following days, supporting the petition. See also ‘M.S.R’ ‘The property of married women’ The Englishwoman's Domestic Magazine, 5 (November 1856) 234.
76. First Report , above n 61, at 101, WE Taunton KC.
77. Ibid, at 390, G Harrison.
78. It seems peculiar to note instances of hardship in which women may be left unprovided-for on an intestacy where dower does not apply (because the property is equitable) and yet not to see that dower might be helpful in similar cases where the property is legal, see eg First Report , above n 61, at 491.
79. See eg Parkes v Creswick, The Age, 25 December 1825, 262; Morning Post, 23 December 1825.
80. Dyott v Dyott, Caledonian Mercury, 17 November 1814.
81. 3 & 4 Wm. IV c. 105. On its effects, see eg ‘The comic Blackstone’ Punch, 3 August 1844, 63: ‘[A] recent Act has made it so easy to bar the dower that the widows are generally done out of their thirds, and instead of the corn, the fruit, or even the vegetables, there is nothing left but the weeds, with which the unfortunate widows can console themselves.’ There was no requirement that the husband make equivalent provision for his widow. It had been suggested that the Dower Act's extension of dower to equitable estates was sufficient compensation for the increased ability of men to destroy all dower: Hansard HC Deb, vol 13, col 561, 1832; Hansard HC Deb, vol 15, col 655, 1833. Staves, however, makes a convincing case for saying that this was merely a clearing up of an intellectually embarrassing anomaly that saw different rules for dower and courtesy in this area: Staves, above n 62, p 39.
82. Anderson, above n 67, p 129, noting the lack of figures on number of widows claiming dower in the nineteenth century.
83. See eg the case of the widow of a Bristol ‘slop-seller’ in Sanger v Gardner, Morning Post, 5 November 1823.
84. Note also that in 1833, legislation streamlined the process of release of claim to dower by the wife: Act for the Abolition of Fines and Recoveries 1833; Kenny, Cs History of the Law of England as to the Effects of Marriage on Property (London: Reeves and Turner, 1879) p 59 Google Scholar.
85. An opponent of reform with regard to married women's property still used the availability of dower as an argument against change in 1868: Hansard HC Deb, vol 192, col 1352, 1868. Dower continued to be discussed in popular writing on property law and in debate on married women's property: A Barrister Every Man's Own Lawyer (London: Lockwood & Co, 1867). Dower was given as one of the risks of a married man with an adulterous wife in speeches relating to the Mordaunt divorce case: Morning Pos, 3 June 1870; Mordaunt v Mordaunt (no 2) (1869–1872 ) LR 2 P & D 109.
86. As late as 1856, there was a request for its extension to certain copyholders: Hansard HL Deb, vol 140, col 705, 1856. In the late 1870s, and even 1912, some parliamentarians were against the cutting down of dower, or thought that the Dower Act had gone too far: Hansard HC Deb, vol 230, col 600, 1876; Hansard HL Deb, vol 235, col 71, 1877; Hansard HC Deb, col 1169, 1878; Hansard HL Deb, vol 11, col 1015, 1912.
87. Marshall v Smith, Daily News, 7 December 1864.
88. This was, briefly, and mostly theoretically, achieved in 1650: Acts of the Interregnum II: 388; Thomas, above n 21, pp 258, 272, for attempts to bring in similar punitive legislation in 1543, 1549, 1576, 1584, 1601, 1604, 1614, 1621, 1626, 1628, 1640, 1644, 1649 and later pressure for greater penalties on adulterers from individuals, clergy, societies for the reform of manners, from the later seventeenth century to the nineteenth century. See also Stone, above n 40, p 243 .
89. Stone, above n 40, p 255; noting long debates over anti-adultery bills in 1771, 1779, 1800, 1809 and (p 273) the ‘moral panic’ of the 1790s.
90. Manby v Scott 1 Keble 337, at 341. 83 ER 980. Govier v Hancock (1796) 6 TR 603. See also Harris v Morris , The Morning Post and Gazetteer, 8 July 1801, ‘Law intelligence’; Emmett v Norton (1838) 6 Car. & P 506.
91. Robinson v Gosnold (1704) 6 Mod. 171, 87 ER 927; see similar views from Hale CB in Manby v Scott , above n 90.
92. 6 TR 603; 101 ER 726 (another case in which Coke's views on dower and adultery were relied upon).
93. Stone, L Broken Lives: Separation and Divorce in England 1550–1857 (Oxford: Oxford University Press, 1993) p 24 CrossRefGoogle Scholar; Houghton, We The Victorian Frame of Mind 1830–1870 (New Haven, CT: published for Wellesley College by Yale University Press, 1957 Google Scholar).
94. Cornish, W Oxford History of the Laws of England vol XIII: 1820–1914, Fields of Development (Oxford: Oxford University Press, 2010) p 733 Google Scholar; Stone, above n 40, pp 211–228 ; Wolfram, S ‘Divorce in England’ (1985) 5(2) Oxford J Legal Stud 155–186 , at 166–172.CrossRefGoogle Scholar
95. R v Flintan (1830) 1 B & Ad 227.
96. Stone, above n 40, p 345.
97. Halliday v Best, Morning Post, 10 November 1838; 1 Legal Guide 90 (1838–1839).
98. ‘JBW’, Legal Observer or Journal of Jurisprudence 10 (1835>) 410, objecting that a forgiving (‘weak’) husband could, by reconciling himself to his adulterous wife, ‘bring upon his children an injury by diminishing their rights and expectations’. Letters from ‘Carolus’ and ‘Mancuniensis’ in Legal Observer or Journal of Jurisprudence 7 (1833–1834) 280, 448 (highlighting some misapprehensions about the law). See also Poynter, T Concise View of the Doctrine and Practice of the Ecclesiastical Courts on Various Points Relative to the Subject of Marriage and Divorce (Philadelphia, PA: JS Littell, 1836) p 65 Google Scholar. For the unforgiving attitude of some clergymen, see Hansard HC Deb, vol 147, col 743, 30 Jul 1857.
99. See eg the divorce of the Earl of Roseberry (1815: Hansard HL Deb, vol 31, col 558, 1 June 1815; Morning Chronicle, 15 June 1815; Times, 15 April, 9 May, 19 May, 2 June, 15 June 1815; George IV's attempt to divorce Queen Caroline (1820): Bowman, Wd The Divorce Case of Queen Caroline (London: Routledge, 1930 Google Scholar); Baker, K George IV: A Life in Caricature (London: Thames & Hudson, 2005) p 166 Google Scholar; TNA TS 11/115; Ellenborough divorce 1830: Times, 18 and 24 March, 1, 2, 6 and 7 April 1830; ‘Curious case of divorce’ Bell's Life in London and Sporting Chronicle, 17 February 1833; Talbot divorce (1856) Times, 29 February, 13 March, 23 May, 1856; Cujus pseud. Mary Anne Talbot Divorce in 1857: The Talbot Case (London: Ward and Lock, 1857); ‘The Robinson case’ The Englishwoman's Review and Home Newspaper, 27 November 1858, 311; Codrington v Codrington and Anderson (1864) 3 Sw. and Tr 368, 496, 4 Sw. and Tr. 63,164 ER 1317, 1367, 1439 (January–April 1864). Times, 21 November 1864, 11; M Vicinus ‘Lesbian perversity and Victorian marriage: the Codrington divorce case 1864’ (1997) 36 J Br Stud 70–98; G Savage ‘Erotic stories and public decency: newspaper reporting of divorce proceedings in England’ (1998) 41 Hist'l J 511–528.
100. Cretney, S Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003) pp 393, 405, 407–408 Google Scholar.
101. See above n 42. Note also that a leading civilian refused to allow a wife's adultery to upset her claim to a distributive share of personal property. Legal Examiner and Law Chronicle 3 (1834) 65–84.
102. Morning Post, 25 July 1864; Times , 23 July 1864.
103. On the rising of Coke's stock in the nineteenth century, see eg Musson, above n 9, 95; Stephen, Jf A History of the Criminal Law of England (London: Macmillan, 3 vols, 1883) vol II, p 205 Google Scholar; Powell, D ‘Coke in context: early modern legal observation and Sir Edward Coke's reports’ (2000) 21 J Legal Hist 33–53 CrossRefGoogle Scholar; 45, 48. Coke relied upon in eg Park, Jj A Treatise on the Law of Dower (Philadelphia, PA: JS Littell, 1836) p 102 Google Scholar; Cruise, W A Digest of the Laws of England Respecting Real Property vol 1 (London: Saunders and Benning, 1835) p 175 Google Scholar.
104. Lack of interest in the older authorities is displayed in the introduction to Park, above n 93, in which the author declares his intention not to go into the history of dower, since it is not needed for practice, and ‘may be left to the investigation of erudite curiosity’.
105. Some writers had continued to maintain the literalist position at least into the 1840s: Bisset, A A Practical Treatise on the Law of Estates for Life (Philadelphia, PA, JS Littell, 1843 Google Scholar). See, however, Amos, , Legal Examiner and Law Chronicle 1 (1833) 172 Google Scholar; Shelford, L A Practical Treatise of the Law of Marriage and Divorce (London: S Sweet/Dublin: A Milliken, 1841 Google Scholar), which follow Coke.
106. Woodward v Dowse , at 730.
107. Both the attitude of English courts to ‘institutional writings’ and the use of Coke's work in decisions inimical to the interests of women would be interesting areas for future research. Note, for example, that Coke was cited as high authority in Bebb v Law Society [1914] 1 Ch 286, 294. A consideration of Coke's views and effects on women is largely absent from discussions of his work in relation to ‘freedom’: see Powell, above n 103, 33–34.
108. Note that there is a lack of evidence as to the interpretation of c. 34 in Ireland, though the exception was certainly used (see Elizabeth Lady Dowager Boyne v Frederick Hamilton (1773) Irish Morning Chronicle and London Advertiser , 28 August 1773, and Lloyd's Evening Post, 4 October 1773; Ball Wright, W ‘The Boyne peerage case: a forgotten story of the eighteenth century’ Genealogical Magazine iv (1900–1901) 392–397 Google Scholar; 432–437; 497–500) and remained part of the law until its repeal in the Succession Act 1965, s 11(2) and Sch. II.
109. Graham v Law 6 UCCP, 310; MG Cameron A Treatise on the Law of Dower (Toronto: Carswell & Co, 1882) p 62; Woolsey v Finch 20 UCCP, 132; Neff v Thompson 20 UCCP, 211.
110. See eg McKean, FG ‘British statutes in American jurisdictions’ (1929–1930) 78U Pa L Rev 195–230 Google Scholar, 198; Lakin v Lakin 2 Allen (Mass.) 45, (1861).
111. See Roper, Rsd A Treatise on the Law of Property Arising from the Relation between Husband and Wife (Buffalo, NY: William S. Hein, 1820) p 548 Google Scholar; Scribner, Ch A Treatise on the Law of Dower (Philadelphia, PA: T & JW Johnson, 2 vols, 1867) p 498 Google Scholar.
112. See eg Reynolds v Reynolds 24 Wendell (NY) 193, Beaty v Richardson 56 SC 173, 34 SE 73; 46 LRA 517, Jarnigan v Jarnigan 12 Lea (Tenn.) 292; Reel v Elder 62 Pa 308; Walters v Jordan 35 NC 361 57 Am Dec 558; 13 Ired. 361; Shaffer v Richardson's administrator 27 Ind. 122; Coggswell v Tibbets 3 NH 41; Heslop v Heslop 62 Pa. St. 527; Rawlins v Buttel 1 Houst. (Del.) 224; Atkinson, Te Handbook of the Law of Wills (St Paul, MN: West, 1953) p 149 Google Scholar, Hopkins, Ep Handbook on the Law of Real Property (St Paul, MN: West, 1896) p 103 Google Scholar no 60; Boone, Ct A Manual of the Law of Real Property (San Francisco, CA: S Whitney & Co, 1883) p 73 Google Scholar.
113. See eg Turtletaub, H ‘Misconduct in the marital relation: adultery as a bar to dower’ (1958) 13U Miami L Rev 83–91 Google Scholar; Lakin v Lakin 84 Mass. 45 (1861); Davis v Davis (1918) Wis.; 167 NW 879. Some legislation essentially replicated the scheme of c. 34, while, elsewhere, divorce rather than elopement and/or adultery, became the barring event: Kent, J Commentaries on American Law (New York: O Halsted, 4 vols, 1826–1830) vol IV, pp 52–53 Google Scholar; Reynolds v Reynolds 24 Wend (NY) 193 (1840).A deliberate move away from the Hethrington–Woodward line can be seen in the Connecticut law specifically giving dower to a woman who was absent from her husband ‘by his consent or by his default’ when he died: Scribner, above n 111, vol II, p 502. Other formulations avoided the elopement question by simply saying that the bar applied if the wife committed adultery and was not living with the husband at the time of his death: Phillips v Wiseman 131 NC 402 42 SE 861 (1902).One would expect, in different political and legal conditions, that property law would develop its own independent character, See eg P Girard ‘Rethinking “the nation” in national legal history, a Canadian perspective’ (2011) 89 Law & Hist Rev 607–626; Shammas, C ‘Reassessing the Married Women's Property Acts’ (1994) 6 J Women's Hist 9–30 CrossRefGoogle Scholar; Salmon, M Women and the Law of Property in Early America (Chapel Hill, NC: University of North Carolina Press, 1986 Google Scholar); Morantz, Ad ‘There's no place like home: homestead exemptions and judicial constructions of family in nineteenth century America’ (2006) 24 Law & Hist Rev 245–295 CrossRefGoogle Scholar.
114. Also worthy of consideration are the different attitudes to equity in England and the American states, and the availability of alternative models of family provision that could be imitated by the newer jurisdictions, see Shammas, above n 113.
115. Westminster II c. 34 had not been a straightforwardly moralising piece of legislation, and was probably passed to deal with concerns of relatively large-scale landowners that they should not be at risk of their land passing to women who had laid them open to public disgrace and dishonour by deserting them with (or for) a rival, while allowing them to reconcile with erring wives if dynastic circumstances (rather than the Church) dictated that course of action.
116. See eg Doggett, M Marriage, Wife-Beating and the Law in Victorian England (London: Weidenfeld & Nicolson, 1992 Google Scholar); Seabourne, G Imprisoning Medieval Women: The Non-Judicial Confinement and Abduction of Women in England c.1170–1509 (Farnham: Ashgate, 2011 Google Scholar).
117. The apparent lowering of the standard for volition, in particular, may be contrasted with the slight nineteenth-century moves towards a less complainant-unfriendly standard of consent in rape cases: see eg K Smith ‘Criminal law’ in Cornish, above n 94, pp 1–464 , 404, on the (slight) moves in the nineteenth century with regard to the concept of consent to sex in rape cases. Note, in particular, R. v Camplin (1845) 1 Den 89 and R. v Fletcher (1859) Bell 63, in which reference is made to the Westminster II c. 34 ravishment provision. In this case, they were arguably incorrect, confusing the offence of rape with that of raptus: see Seabourne, above n 116, Appendix.
118. Stone, above n 93, p 10 ; Stone, above n 40, p 205 .
119. Custody of Infants Act 1839; Matrimonial Causes Act 1857.
120. Matrimonial Causes Act 1857; Married Women's Property Act 1870; Matrimonial Causes Act 1878; Married Women's Property Act 1882; Married Women's Property Act 1893; Shanley, Ml ‘“One must ride behind”: married women's rights and the Divorce Act of 1857’ (1981–1982) 25 Victorian Stud 364–365 Google Scholar; Holcombe, L Wives and Property (Oxford: Martin Robertson, 1983 Google Scholar); Ulrich, V ‘The reform of married women's property law in England during the nineteenth century’ (1977) 9 VUW L Rev 13–36 Google Scholar.
121. It could also be contrasted with the ‘silent decriminalisation’ of adultery noted by Stone: Stone, above n 40, p 232 , a development that he dates to the early eighteenth century.
122. Morris, Jhc ‘Intestate succession to land in the conflict of laws’ (1969) 85 LQR 339–349 Google Scholar, 348; CH Sherrin and RC Bonehill The Law and Practice of Intestate Succession (London: Sweet & Maxwell, 3rd edn, 2004) p 34.
