HUSBANDS AND WIVES
“’Tis reason a man that will have a wife should be at the charge
of all her trinkets, and pay all the scores she sets on him. He
that will keep a monkey, ’tis fit he should pay for the glasses she
breaks.”
_The Table Talk of John Selden_, cxlviii. 3.
In the old three-volume novel--the three-decker that Kipling sings
of as “taking tired people to the Islands of the Blest”--the end was
always marriage and the young husbands and wives lived happily ever
afterwards.
But the legal history of husbands and wives does not lead us to suppose
that this was more true of married life in the past than it is to-day.
Certainly the Law cannot lay claim to have made any mighty effort to
help the married Woman to a happy and contented life.
When a man asserts solemnly on the day of his marriage “with all my
worldly goods I thee endow,” he has about as much intention of doing
it as the Woman has when she murmurs the word “obey.” Why should
these pious young people be allowed to enter into the holy state of
matrimony with false promises on their lips?
The man’s phrase has at least this to be said for it, that it is an
echo of old history. In the feudal times the man on the marriage
day being a tenant of land endowed his wife at the church door with
whatsoever of his lands he specially named. At his death she was in
truth endowed and had rights of dower in the land, and the words seem
to have remained in the service in an altered form long after the thing
they stood for passed away.
At common law a married woman had no property. She could not acquire
by gift or earning anything of her own without her husband’s consent.
You remember the trouble in the Mantalini household when Mr. Mantalini
poisons himself for the seventh time and his poor wife insists on being
separated and left to herself.
“It would be well to reflect,” says Mr. Ralph Nickleby warningly to
her. “A married woman has no property.”
“Not a solitary single individual dem, my soul,” said Mr. Mantalini,
suddenly recovering himself.
Mr. Mantalini was a creature of the common law of England, and
doubtless he was only a type. Mrs. Mantalini by her industry and
business ability made the money, but she had no property in it, she had
nothing, “not a solitary single individual dem,” and that was the Law
of England in our own day until 1870 and 1882 when married women were
given rights of property in what they owned and earned, and rights to
sue in their own name and access to our Courts of Justice.
It was a long struggle to get these new principles recognized, and all
sorts of evils in matrimonial relations were prophesied as the obvious
results of such reform.
But what seems to have happened since is merely that good husbands
and wives live on similar give and take principles to those adopted
by their ancestors in old days without any very special reference to
the Law, and bad husbands can no longer steal their wives’ property
and earnings to waste them in riotous living, whereby much scandal and
unhappiness has been put an end to.
We shall indeed generally find that the Law has no great power of
bringing about happiness by its own provisions, but that one of the
chief difficulties of the lawgiver is to so frame his handiwork that
it does not in the result encourage knavery and evil-doing. For in
practice it chances too often that this is the outcome of careless
legislation. The great adventurer who seeks to transform society by
means of Law needs insight and cunning forethought as well as a kind
heart. Mighty and also blessed will be the lawgiver who can devise a
measure to ensure to the unfortunate and down-trodden equal conditions
with those who live in pleasanter surroundings where human beings
are ready to do what is right and just voluntarily and without the
compulsion of judges and police.
Since the passing of the Married Women’s Property Acts a wife has
really no complaint to make about her liberty to use her own property
and earnings in her own way. Her husband is still bound to support her
and the family, and she in turn for the rights given to her is not
allowed to let her husband and children go on the rates as long as she
has separate means to support them. Moreover, when you come to the
committing of torts or wrongs, one is bound to admit that the Married
Woman is in a position of especial privilege under the Law. Ah, my dear
ladies, have you ever considered with sufficient thankfulness what a
delectable legal position is yours in having a husband responsible
in damages for every legal wrong you commit? If you write libellous
postcards to your neighbour, if you trespass on her backyard and
destroy her washing in a fit of temper, if you tell her over the garden
wall deliberately and adjectivally what you think of her, your husband
pays.
The theory of the Law seems to be that the husband, good easy man, has
control over the wife, and even in his absence can prevent such goings
on, but we know, my dear ladies, what element of fact underlies such
strange beliefs about human action. If the Law really believes that the
husband can control his wife in these little social amenities, Bumble
was not far wrong in thinking that the Law is an Ass.
It would seem, therefore, that having freed the wife from the legal
control of her husband in all matters pertaining to the owning of
property and the making of contracts, it would only be fair to the
husband to relieve him from the responsibilities of paying damages for
wrongs the committal of which he can in no way prevent.
The personal dominion of a husband over his wife is a thing of the past
even if it was ever much more than a legal myth.
Where is the man who has the power and skill
To stem the torrent of a woman’s will?
For if she will, she will, you may depend on’t,
And if she won’t, she won’t, and there’s an end on’t.
But given a Petruchio in the olden time he certainly had the Law on his
side. An Anglo-Saxon husband is said to have had the right which he
duly exercised of beating his wife when she displeased him. The civil
law allowed the husband for some misdemeanours _flagellis et fustibus
acriter verberare uxorem_, for others only _modicam castigationem
adhibere_. Blackstone says, “With us in the politer reign of Charles
II, this power of correction began to be doubted and a wife may now
have security of the peace against her husband and in return a husband
against his wife. Yet the lower rank of people who were always fond of
the old common law still claim and exact this ancient privilege.”
In Matthew Bacon’s Abridgment, published at the end of the eighteenth
century and reprinted in 1832 as a legal authority, the Law is stated
to be: “The husband has by law power and dominion over his wife and may
keep her by force within the bounds of duty and may beat her but not in
a violent or cruel manner.”
There seems no doubt then that at common law a husband had a right to
chastise his wife and that in the cases of wife beating that disgraced
the Victorian era, as in the instances of wife-selling already
referred to, the lower classes were exercising what they believed to be
a legal right. Indeed many educated people recognized the legal right
for many generations after the reign of Charles II. Steele, writing in
the _Spectator_ under date September 9, 1712, says: “I cannot deny but
there are perverse jades that fall to men’s lots with whom it requires
more than common proficiency in philosophy to be able to live. When
these are joined to men of warm spirits without temper or learning they
are frequently corrected with stripes: but one of our famous lawyers is
of opinion that this ought to be used sparingly; as I remember these
are his very words.” The lawyer referred to in a note is Bracton, but I
have not found the passage.
Later on in 1782 the world is said to have been startled by a ruling
of Mr. Justice Buller that a man might lawfully beat his wife with a
stick if it were not thicker than his thumb. It is certain that Gillray
caricatured him as Judge Thumb on November 27, 1782, but I know of no
other authority for the suggestion that the learned judge ever gave
such an absurd ruling. Antiquaries tell us that an old Welsh law allows
a husband to give his wife three blows with a broom stick on any part
of the person except the head, and another fixes the size of the stick
at the length of the husband’s arm and the thickness of his middle
finger. Here you probably have the origin of the Buller story which
became so firmly planted in men’s minds that Praed refers to it in a
poem called “The Crabstock” in which he jocularly writes:
Love bestows the useless Rose
But Hymen gives the Crabstock.
and continues in eulogy of Buller--
And let thy thumb’s capacious span
From henceforth fix its measure.
Up to a late period it seemed still doubtful in the minds of lawyers
how far a husband had a right to beat his wife, and that this is so
is shown in a passage in the authoritative book on Criminal Law by
Serjeant Woolrych, published in 1862, in which among “defences to
common assaults” he includes “the parent who chastises his child with
moderation, the gaoler who coerces his prisoner or _even as some say
the husband his wife_.”
But all doubt on this matter was finally swept away by the decision
in the celebrated Jackson case. It will be remembered that Mr. Edmund
Haughton Jackson married his wife Emma Maud Jackson on November 5,
1887, and on November 10 he sailed for New Zealand. During his absence
in 1888 his wife resided with her sisters and brother-in-law; it
was arranged that she should join him in New Zealand, but she wrote
pressing him to return to England. This he did, when she refused to
live with him and he was denied access to her. Thereupon he obtained
an order for restitution of conjugal rights--one of the most amusing
farces known to our law, since no one need obey the order who does not
desire to do so--and as the lady continued to refuse to come to him
he drove up one Sunday morning to the church door as she was coming
out of morning service and carried off his wife by force in good old
Anglo-Saxon style.
You could not possibly have invented a case which brought into more
direct conflict the ancient and modern creeds as to the dominion of a
husband over his wife, and the affair created world-wide excitement.
Curiously the ancient dicta which state that a husband has a right to
imprison his wife also state that he has a right to beat her, and as
the learned counsel for the husband refused to contend that a husband
in 1891 had any right of castigation these authorities were not of much
use to him.
The Court was a very fortunate one for the principle at stake,
including as it did the Lord Chancellor, Lord Halsbury, and the Master
of the Rolls, Lord Esher, two of the greatest lawyers of our time
and two whose judgments constantly bear witness to the truth in Lord
Reading’s pleasant paradox: “The idea that it is the duty of the Law
Courts to dispense law is becoming obsolete. It is recognized that the
true duty of the Courts is to dispense justice.”
The Lord Chancellor referred to the day when it had been contended
that slavery had been part of the Law of England and continued: “In
the same way such quaint and absurd dicta as are to be found in
the books as to the right of a husband over his wife in respect of
personal chastisement are not, I think, now capable of being cited as
authorities in a court of justice in this or any civilized country.”
It would probably have been better to have spoken merely of his own
country. In Russia, for instance, the right and duty of a husband to
chastise his wife seem to have been as well recognized in modern times
as in our own country in past days, and if Gorki and Dostoevsky are to
be trusted continue to this day.
Lord Esher went even further than his Chief: “One proposition,” he
said, “that has been referred to is that a husband has a right to
beat his wife--I do not believe this ever was the law,” and he then
concurs in an elaborate judgment with the principles stated by the
Lord Chancellor, and between them they swept away for ever all legal
personal dominion of the husband over the wife.
It is a fine example of English judge-made law in which an instinct
for justice in the human being overrides the binding force of pedantic
antiquities and obsolete statements of laws which, by the rules of the
game, judges are expected to reverence. But I repeat again, that the
English world in general and Mrs. Jackson in particular were lucky
in the constitution of the Court. Lord Justice Fry, the third judge,
refused to advert to the older authorities cited, “Beyond saying that I
do not regard them with exactly the same feelings as the Master of the
Rolls, nor think that all our predecessors on the judgment seat were
deficient in good sense.”
Indeed he was, as a lawyer, right; and it would have been easy to
have picked a tribunal at that day who would probably have upheld
the ancient letter of the Law against the Woman and left the matter
for Parliament to put right. But that is one of the sane and healthy
attributes of our judicial system. There comes a breaking point where
a great judge recognizes that the precedents in the books are obsolete
and what has to be stated is the justice of the case according to the
now existing standard of human righteousness. Lord Halsbury’s judgment
in the Jackson case decreeing the liberty of English wives, and Lord
Mansfield’s decision in the Somersett case that slavery was “so odious”
that nothing could “be suffered to support it but positive law,” are
to my mind two of the great triumphs of our English legal system which
allows principles of liberty and justice a hearing in the Courts even
when they run counter to the written word of the Law.
The Law having released Woman from the personal dominion and control of
her husband Man, it makes Bumble’s complaint even more reasonable than
it was, and it seems hard that a man should still be responsible for
his wife’s misdoings.
But it is so. The husband’s part is to look on whilst his wife commits
her favourite tort, whether it be trespass, slander, or assault, and
pay up such damages for her naughtiness as the jury shall assess.
It may be, of course, that Bumble and I are wrong about it, and that
for a husband to be responsible for a wife’s wrong-doings is one of
the natural and holy privileges of matrimony. Let us at any rate hope
that this earthly common Law of ours is merely crowner’s quest Law and
ends with this world. For if it be otherwise husbands are indeed in a
parlous state.
The right of a wife to run her husband into debt has always been well
understood. Since the Married Women’s Property Acts, a Woman who has
means of her own can be sued for her own debts, but there are, of
course, many cases where a Woman has no means of her own and she runs
up bills with tradesmen for her husband to pay.
The principle on which such cases have to be decided is simplicity
itself, but the practical application of the principle to each
succeeding case is one of the most difficult legal jobs that any one
can have to tackle.
What the Law calls “Agency” is at the bottom of it all, and a wife has
no very different authority from any other agent in pledging the credit
of her husband, the principal.
Whether a wife is her husband’s agent or not his agent to buy a certain
article is a question of fact.
It is right that a husband should pay for what he has authorized his
wife to buy, but it would be very hard that he should be ruined by
having to pay for what he had not authorized his wife to buy--had
perhaps in fact specifically forbidden his wife to buy. The difficulty
of the unfortunate Judge who has to find out the truth about the matter
is that agency may be implied from the surrounding circumstances of the
case, and husband, wife, and tradesman do not always tell the truth,
the whole truth, and nothing but the truth about the particular case.
Supposing, for instance, Mrs. Binks buys a pair of boots off Mr.
Clout, the cobbler, for her little Tommy to go to school. These being
necessaries, and Mrs. Binks having no separate estate, it seems a
little rash of Binks to dispute the matter and refuse to pay.
But supposing that Binks proves that Mrs. Binks pawned the boots the
same day and bought with the proceeds a bottle of tawny port wine,
Binks’ case looks more hopeful and there is a distinct drop in Clout’s.
Clout, however, calls a neighbour who remembers helping to drink the
port, at which festival Binks was present and took part and port. This
rejoinder puts Clout in rather a strong position.
Binks, however, declares that that was another occasion, on which the
port was purchased out of a wager made on the Grand National, but with
the port the proceeds of Clout’s boots he was neither actor, art nor
part.
It is all very well to write glibly about a wife’s agency in law books,
but that is the kind of thing it turns out to be in real life, and it
is sometimes a bit of a puzzler.
And that brings me to the consideration of the one important reform
that I think the Law ought to undertake in favour of a Married Woman.
Every Married Woman ought to have a separate estate, and then we might
safely modify a husband’s liabilities. That would solve a great many
practical troubles, and do away with a lot of debt and disaster.
If you think of it, the great majority of married women have no actual
money of their own, and never handle any money at all except as
trustee for their husbands. A wife ought as of right to have a certain
allowance of her own, payable to her weekly out of her husband’s wages.
In most sensible middle class households wives and daughters have
specific allowances made for dress and other personal concerns, and
this has very largely done away with those tragedies of debt that we
read of in the eighteenth and early nineteenth centuries. The tendency
of the middle class, especially the professional middle class, has been
to pay cash at stores, to run up no bills for longer than a week, and
to allow the wife and daughters of the house a personal allowance of
their own, about the spending of which no questions are asked.
The sense of this arrangement is that every member of the household has
a personal interest and duty in co-operating with others to prevent
debt. A wife or daughter with a proper allowance cannot pledge the
father’s credit without obtaining money by false pretences, and the
father has a sound answer to any claims against him if they make any
such attempt.
No doubt the right of a wife to wages is not an urgent public
grievance, since husbands and wives are more sensible than the Law, and
manage their affairs equitably without its interference. Nevertheless,
the Law has a duty towards Woman to make her right to wages for work
done as clear as that of Man. If the labourer is worthy of his hire
surely the housewife is of all labourers entitled to her reward.