“she sins while she remains away”: Marital Consent, “Restitution of Conjugal Rights, and Anthony Trollope’s phineas Novels

Abstract

98 Victorians Journal “she sins while she remains away”: Marital Consent, “Restitution of Conjugal Rights, and ‘(Inthony Trollope’s phineas Novels by Heather Nelson For a Victorian wife, Lady Laura Kennedy, nee Standish, speaks with surprising forthrightness to her husband Robert Kennedy in Anthony Trollope’s second and fourth Palliser novels, Phineas Finn: The Irish Member (1^69) and Phineas Redux (1873).’ The couple’s dialogue indicates Kennedy’s disapproval ofLady Laura’s frankness about gender equality in marriage: “There are moments, Robert, when even a married woman must be herself rather than her husband’s wife. It is so, though you cannot understand it.” “I certainly do not understand it.” “You cannot make a woman subject to you as a dog is so.” (PF 300) Yet, while Lady Laura’s essentially irrevocable wedding-day consent anticipates a lifetime ofmarriage with Kennedy, she attempts to retract that promise through desertion, provoking Kennedy to contemplate filing for restitution of conjugal rights. A successful restitution suit did not compel sexual relations per se but more broadly forced a deserting spouse to return to the home, regardless of extenuating circumstances. Only a handful of historians—Olive Anderson, John M. Biggs, Maeve E. Doggett, and Mary Lyndon Shanley1 2—have studied restitution, but with little attention to the Phineas novels. Trollope regrets that Lady Laura must “re-consent” to her 1 Trollope considers Phineas Finn and Phineas Redux "one novel" (Autobiography 164). 2 Anderson presents a thorough history ofrestitution. Biggs reports most importantly on legal cruelty as a female defense against restitution suits. Doggett looks at restitution in the context of physical marital abuse. Shanley assesses how proto-feminists ended restitution, enabling wives to control their own bodies. Victorians Journal 99 unhappy marriage; in Phineas Redux, she grieves: “it can’t be right that a woman should pretend to love a man whom she loathes. I couldn’t live with him” (PR 139). Through Lady Laura, Trollope shows that rights— specifically conjugal rights—are a primary problem vexing miserable yet “consenting” wives in nineteenth-century England. Restitution of Conjugal Rights Eighteenth-century precedent enabled nineteenth-century restitution suits. In A New Abridgment of the Law (1736), lawyer Matthew Bacon reports'. “The Husband hath by Law Power and Dominion over his Wife, and may keep her by Force within the Bounds of Duty ... he has by Law a Right to the Custody of her, and may, if he think fit, confine her” (285). Professor, lawyer, and judge William Blackstone addresses this power in Commentaries on the Laws ofEngland (1765): “the courts oflaw will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour” (433). In practice, husbands did not necessarily need to wait for or prove wives’ misbehavior before filing for restitution, masculine prerogatives (honor, obedience, ownership) clearly outweighing concerns about female morality. Scores ofBritish spouses filed for restitution throughout the nineteenth century. Wives filed the most restitution suits for financial support, usually after the husband had deserted the home, leaving the family without a viable breadwinner.3 Yet, in the smaller number of cases when husbands filed for restitution, the situation could be tragic in a different way. If a husband abused his wife physically, emotionally, and / or sexually, prompting her to escape the situation, he could turn to the courts to sue for restitution. Although restitution ofconjugal rights did not signify sexual services, it did require a spouse’s permanent presence in the home; and, since an abusive husband owned his wife’s body via coverture, such suits would almost certainly indicate his determination to continue the abuse. Also, in restitution cases throughout most ofthe century, courts did not accept claims of abuse as a defense for desertion. If a restitution suit were granted, an abused wife had two options: obey the decree to return to her husband’s 3 British wives filed about 70% of restitution cases throughout the early- and middlenineteenth century; by the end ofthe Victorian period, the number increased to over 85%. 100 Victorians Journal home or sit in jail indefinitely, a situation termed “attachment.”4 Just as wives “consented” to abuse in the first place—through wedding vows, marital custom, and...