‘Like a great many other of the British workmen, when drunk, he came home and threw his wife down and beat her’: Domestic violence and the Matrimonial Causes Act 1878

Caroline Norton (1808-1877) was an author and social campaigner. Having left her husband in 1836, she would have been able to support herself with her earnings as an author, except for the fact that her earnings legally belonged to him. Her earnings were confiscated and her husband left her with nothing. In response, Caroline decided to run up a series of debts which would, of course, be the responsibility of her husband since she herself was, essentially, a legal nonentity. 

Caroline Norton, c. 1850-60

Caroline's husband took the children; Caroline was not allowed to see them and she had no legal recourse to demand access. In 1855, when Parliament debated issues around divorce reform, Caroline submitted her own story to MPs, writing that "those dear children, the loss of whose pattering steps and sweet occasional voices made the silence of [my] new home intolerable as the anguish of death... What I suffered respecting those children, God knows... Under the evil law which suffered any man, for vengeance or for interest, to take baby children from their mother".

Caroline campaigned hard and it was partly thanks to her work that Parliament went on to pass the Custody of Infants Act 1839, the Matrimonial Causes Act 1857, and the Married Women's Property Act 1870. Throughout the remainder of the century, other legislation would pass which would further strengthen women's position in relation to their earnings, right to property, and right to custody of their children.

There was, however, a marked disparity between who could and could not access the protection of the law. Divorce remained expensive. The arrival of the Matrimonial Causes Act 1878 allowed for what was essentially a judicial separation, in which a woman could be granted both custody of her children and an allowance from her husband. Specifically aimed at assisting women whose lives were made hell by the extreme violence of their spouses, the law caused a great deal of anxiety within the legal profession, as well as in the pages of the newspapers. 

The backdrop to this legal development was an increasing conflict between judges and juries in cases of domestic violence, particularly in cases which had proven fatal. Essentially, in English law, any case of killing involves a sort of shifting of the burden of proof, so that all killing is automatically considered to be murder unless it can be shown (by the defence) to have been otherwise. Many jurymen (and of course, they always were jury-men) were under the mistaken belief that a murder charge required premeditation. On the contrary, murder charges merely required intent, with premeditation being a fairly good indicator of that intent but being by no means a prerequisite. Justice Willes, summing up in an 1859 trial, put it simply: "it did not matter whether the impulse to kill her came into his mind on a sudden, or whether the intention was deliberately formed, for if the man gave way to the impulse he was guilty of murder". Another good indicator of intent was the use of a deadly weapon, and outcomes in trials concerning open-palm slaps/ hits were far more likely to result in acquittal, while the infliction of a knife wound almost guaranteed a defendant's path to the gallows. In the 1870s and 1880s, a guilty verdict in a murder trial meant a mandatory death sentence and there is evidence to suggest that juries often did their utmost to find a verdict of manslaughter on even the flimsiest of grounds. 

There were, then, four possible outcomes for a wife killer charged with murder. At the Old Bailey, in the period 1872-1882, slightly more than half of wife killers were originally charged with murder rather than manslaughter. Of those, a further 39% would have their charge reduced to manslaughter at trial. 13% would be found Not Guilty, and 39% would be found to be insane. 35% were sentenced to death. For this period, that amounts to a total of 8 men, 6 of whom would hang, and 2 of whom would have their sentence commuted by the Home Secretary.

In cases that were either originally charged as, or were reduced to, manslaughter, another 45% would be found Not Guilty and would walk free. For the rest, sentences could vary wildly. 45% would receive a sentence of less than five years, 20% a sentence of between five and ten years, and the remaining 35% a sentence of ten years or more. 

One case heard at the Old Bailey concerned Mr and Mrs Hunt, who had lived happily together until one day in 1881 when they had a row. In a rage, Mr Hunt chased Mrs Hunt and, when she slipped, he kicked her once in the head. Mrs Hunt died and her husband stood trial for her murder. The jury reduced this to manslaughter and the judge sentenced him to just six weeks in prison. Nine years earlier, Mr Pettingell, whose marriage to his wife was in every way the opposite of the apparent domestic bliss experienced by the Hunts, was sentenced to just 3 months in prison for pushing his wife under a dray. The shortest sentence handed down for such a crime was in 1873, when Mr Appleby was imprisoned for a single day after he drunkenly pushed his post-partum wife, causing her death. Despite a history of domestic violence, the victim's mother gave her son-in-law a good character reference and told the court that he had been a good husband. 

Sentencing could not only be influenced by the testimony of the victim's family, but also by a jury's recommendation to mercy, usually on the basis of apparent provocation. When Mrs Norman swore at her husband and insulted his mother one day in 1879, he kicked her in the genitals with his hobnailed boots on. The resulting lacerations to her vagina led to Mrs Norman's death. The jury felt greatly sympathetic to the provocation that Mr Norman had endured, and recommended mercy. The judge, seemingly in agreement, sentenced Mr Norman to 3 months imprisonment. 

Judges did not, however, always respect the jury's wishes. In 1873, Mr Davis was tried for the manslaughter of his bride, to whom he had been wedded a mere 12 months. Mr Davis' mother-in-law testified before the court that her late daughter had endured many previous incidences of violence at the hands (and no doubt boots) of the defendant. He, meanwhile, insisted that his wife had taken a lover, and that it was in fact the lover who had caused the fatal injury. While the jury were not convinced by Davis' version of events, they did bring in their guilty verdict with a recommendation to mercy. The judge ignored this, and sentenced Davis to ten years penal servitude. 

Increasingly, judges handed down harsher sentences to men who either directly or indeed indirectly caused their wives death. One such case at the Old Bailey in 1881 concerned Mr Harrington, who had drunkenly beaten his wife over a period of time. When Harrington refused to allow his wife to seek medical attention, despite her wounds becoming infected, the poor woman died, and Harrington was sentenced to 20 years penal servitude. 

Whether or not the accused was drunk or provoked, whether his wife was a drinker herself or behaved improperly, the courts increasingly had little patience with men who could not control themselves. The ideal masculinity was, by the later 19th century, far less to do with brute strength and the like, and was far more concerned with what Martin J Wiener calls 'the gospel of self-management'. In an England that saw itself as a civilising force in the Empire, male behaviour was required to be anything but 'savage'. In addition, the decent Englishman would be expected to extend care and protection to the weaker sex. Thus, 'the war on violence began to assume a more explicitly gendered cast, as the evocative figure of the female victim advanced to centre stage' (Wiener). 

Justice Willes, 1872

The notion that men could hit their wives at all was coming under increasing scrutiny, with Justice Willes stating in 1872 he he would never "permit the idea to prevail that men had a right to maltreat their wives as they liked". In an 1873 case, Mr Tyrrell stood trial for the manslaughter of his wife. He had regularly beaten her prior to her death, including with metal objects, and he was known to have locked her out of their home at night during the winter. The local police were aware of this treatment, with one officer testifying in court that "I told him he was no man to beat his wife in that way". Despite Mrs Tyrrell's death being greatly accelerated by her other health complaints, her husband was sentenced to five years penal servitude. 

Illustrated Police News, 1871

While attitudes to wife murders was beginning to change, especially within the judiciary, the Matrimonial Causes Act still caused disquiet. The granting of separation orders, either with or without maintenance payments, seems to have been rather hit or miss. In 1879, the Islington Gazette reported a case in which a man poured boiling water over his wife, even taking the time to refill the receptacle and pour even more boiling water over her. When the police arrived, the man had calmed down and so his wife allowed them to leave. The man went out, returned four hours later, and punched his wife four times in the face, blacking her eyes. Despite the man's regrets, his wife was granted a separation order as well as 10s a week. Not all successful separation orders were as generous. That same year, a woman appeared before the court whose husband was at that very moment serving a sentence in prison for assaulting her. He had said that when he was released he would get her and the woman believed him. She was granted the order, as well as a measly 5s a week for herself and her children, and within a few years she and they are scraping a living as hawkers, existing in dire poverty. 

Similarly, in Nuneaton in 1878, a woman came before the court due to her husband's treatment of both herself and their children. The couple's son had broken a penny bottle of ink and was being beaten by his father with a leather strap. The child's mother attempted to intervene and was also struck with the strap. In court, the woman was asking for 15s to support herself and four children. The defence, meanwhile, argued that the woman was "raising a spirit of insubordination in his children" and that "it was most inexpedient that the Bench should get into the habit of granting separation orders [...] The complainant in this case having taken the defendant "for better or for worse" should bear and forbear, instead of provoking him. The Act was not intended to be applied to a case like the present, in which, in a moment of irritation, a husband had struck his wife, who now sought to make his home desolate". The Nuneaton Observer reports that at this point applause could be heard, though from whence is unclear. The wife was not granted her request and her husband was cautioned to treat his wife better going forward. Three years later, the wife was no longer living with her husband, but was scraping a living as a laundress. 

In one final case from 1878, reported in the Lancaster Gazette, a woman appeared before the court to ask for a separation order. Despite feeling that her husband was a wonderful man when sober, his drunken violence had become unbearable and while she had forgiven him before she could not any longer. The magistrate exercised caution, telling the woman that "I have the power to separate people now, but I don't know whether this is a case in which I ought to exercise it. Orders for separation are not to be lightly made. I am afraid if I separate people just because the husband has given his wife two black eyes and has committed no other offence, separations will become very common in this court". He ordered the court to adjourn and for the woman to return in  few days if she was still sure. 

The 1870s and 1880s were a period in which ideas around gender, and masculinity in particular, were in a state of flux. The cult of the home was hugely powerful, and the powers that be were reluctant to interfere in the domestic sphere. Nonetheless, male violence was increasingly unacceptable, especially when the object of that violence was female. While juries may have been rather more stuck in the past with their attitudes towards domestic violence, judges were increasingly passing harsh sentences, and the odds of having a death sentence commuted in a case of wife murder were slim. Women still found themselves trapped in unhappy and violent marriages; some of them would die at their husbands' hands. But the legislation was beginning to pass and change, however slow, was starting to happen.  

Illustrated Police News, 1870