1.—“_By cant condoned_ ...”
“Much has been said by Guizot on the influence of women in developing
European civilisation. It is at least certain that several of the
fathers did everything they could to diminish that influence. Tertullian
bitterly complains of the insolence of women who venture to teach and to
baptise. He allows that in case of necessity baptism may be administered
by a layman, but never by a woman. Again, among the other crimes of the
heretics he particularly enumerates the insolence of their women, who
ventured to teach, to dispute, &c., &c. In ‘De Cult. Faem,’ lib. I. Cap.
I., he says: ‘Let women remember that they are of the sex of Eve, who
ruined mankind, and let them therefore repair this ignominy by living
rather in dust than in splendour.’”—Buckle (“Common-Place Book,” Note
1870).
_Id._—“... _man fashioned woman’s ‘sphere_.’”
“We deny the right of any portion of the species to decide for another
portion, or any individual for another individual, what is, and what is
not, ‘their proper sphere.’ The proper sphere for all human beings is
the largest and highest which they are able to attain to. What this is,
cannot be ascertained without complete liberty of choice.”—Mrs. Harriet
Mill (“Enfranchisement of Women,” _Westminster Review_, July 1851).
6.—“... _civil law_ ...”
For example of this let us look at the law of our own country in even
recent times. Blackstone says:—“The husband (by the old law) might give
his wife moderate correction.... But this power of correction was
confined within reasonable bounds, and the husband was prohibited from
using any violence to his wife, _aliter quam ad virum ex causa regiminis
et castigationis uxoris suæ licite et rationabiliter pertinet_ (_i.e._,
otherwise than to a man for the ruling and punishment of his wife,
lawfully and reasonably pertains). The civil law gave the husband the
same or a larger authority over his wife, allowing him for some
misdemeanours, _flagellis et fustibus acriter verberare uxorem_ (_i.e._,
to severely beat his wife with whips and cudgels), for others, only
_modicam castigationem adhibere_ (to administer a moderate
chastisement). But with us, in the politer reign of Charles the Second,
this power of correction began to be doubted, and a wife may now
(_circ._ 1750) have security of peace against her husband; or in return,
a husband against his wife. Yet the lower rank of people, who were
always fond of the old common law,” (query, were the women fond of it?)
“still claim and exert their ancient privilege: and the courts of law
will still permit a husband to restrain a wife of her liberty in case of
any gross misbehaviour.” (“Commentaries,” Edward Christian’s Ed., Book
I., Chap. XV.)
Such was undoubtedly the generally accepted and not infrequently acted
upon assumption; and it is certain that the Courts of Law would, in the
event of a wife absenting herself from her husband, order her return to
his custody; and would, and did imprison her in default of her
compliance. And this state of things continued until—as Mrs.
Wolstenholme Elmy records in her history of the celebrated “Clitheroe
case”—
“At length, in the year 1891, and, as in the case of the negro
Somerset, upon the return to a writ of _habeas corpus_, there have
been found judges bold enough and just enough to set aside the ancient
saws and maxims, resting mainly upon _obiter dicta_ and loose phrases
of previous judges used in reference to hypothetical cases never
actually before the Courts, and to declare plainly and straightly that
the personal slavery of the wife is no part of the law of England. The
actual words of the Lord Chancellor in dealing with the return to the
writ are, as reported by the _Times_, March 20th, 1891, as follows:—
“After stating the circumstances of the marriage, the decree, and the
refusal of the wife to cohabit, it states: ‘I therefore took my wife,
and have since detained her in my house, using no more force or
restraint than necessary to take her and keep her.’ That is the return
which seeks to justify an admitted imprisonment of this lady. I do not
know that I am able to express in sufficiently precise language the
difference between ‘confinement’ and ‘imprisonment,’ but if there is
any distinction, I can only say that upon these facts I should find an
imprisonment, and looking at the return it is put as a broad
proposition that the right of the husband, where there has been a
wilful absenting of herself by the wife from her husband’s house—that
it is his right to seize possession of his wife by force, and detain
her in his house until she renders him conjugal rights. That is the
proposition of law involved in the return, and I am not prepared to
assent to it. The Legislature has expressly deprived the Matrimonial
Court of the power of imprisoning the wife for refusal to comply with
a decree for restitution of conjugal rights, and the result of such a
system of law, if the husband had the power, would be that whereas the
Court had no power to hand the wife over into her husband’s hands, but
only to punish her for contempt by imprisonment under the control of
the Court, and without any circumstances of injury or insult, and even
that power was taken away, the husband might himself of his own motion
seize and imprison her until she consented to the restitution of
conjugal rights. That is the proposition I am called upon to establish
by holding this return to be good. _I am of opinion that no such right
or power exists in law. I am of opinion that no such right ever did
exist in our law._ Whatever authorities may be quoted for any such
proposition, it has always been subject to this condition: that where
she has a complaint of, or is apprehensive of, ill-usage, the Court
will never interfere to compel her to return to her husband’s custody.
Now this brings me to the particular circumstances of this
transaction. I am prepared to say that no English subject has a right
to imprison another English subject (who is _sui juris_, and entitled
to a judgment of his or her own) without any lawful authority, but if
there were any qualification of that proposition I should be of
opinion that on the facts of this case it would afford an ample
justification to any Court for refusing to allow the husband in this
case to retain the custody of his wife.
“On these and other grounds the Lord Chancellor declared that the
return of the writ was bad, and ordered that the lady be restored to
her liberty, the other judges concurring.”—(“The Decision in the
Clitheroe Case and its Consequences,” pp. 3, 4.)
Lord Esher was one of the two other Judges, both concurring, who formed
the Court of Appeal which granted the writ, and a few days subsequently
he gave from his place in the House of Lords the following further
statement of his judgment and views:—
“As I was a party to the judgment, which seems to have been more
misunderstood than any judgment I recollect, I, perhaps, may be
excused from making an observation. It was urged before the Court of
Appeal that by the law of England a husband may beat his wife with a
stick if she refuses to obey him, and that if a wife refused her
husband conjugal rights, whatever that phrase may mean, which I have
never been able to make out, he may imprison her until she restores
him conjugal rights, or satisfies him that she will. All that the
Court of Appeal decided was that a husband cannot by the law of
England, if the wife objects, lawfully do either of those things.
Those intelligent people who have declared that the judgment is wrong
must be prepared to maintain the converse—namely, that if a wife
disobeys her husband he may lawfully beat her; and if she refuses him
a restitution of conjugal rights he may imprison her, it was urged, in
the cellar, or in the cupboard, or, if the house is large, in the
house, by locking her in it and blocking the windows. I thought, and
still think, that the law does not allow these things....”—(The
_Times_, 17th April, 1891.)