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I don’t deny I beat my husband;

And for that part where you aver

That Satan did my spirit stir —

‘Tis true; for I was moved by him.

The dying sinner’s wildest groans

Are music to his gentlest tones;

And for his blows! alas, my bones!

Well, let it pass; perhaps ‘t was wrong;

But I had borne his curses long,

And I am weak, and he is strong;

Let that, too, pass. I’ve done my best;

My counsel there must say the rest. [1]


Day’s counsel might have invoked for her a claim to self-defense or a claim to be a battered spouse. Such legal strategies in actual domestic violence cases work almost exclusively for men defendants. With sound legal judgment of likely outcomes, Day’s counsel turned instead to a ludicrous defense based on the common-law concept of coverture.


Coverture was the idea that wife and husband are one under law. More specifically, coverture assigned to the wife responsibility and punishment under law for her husband’s criminal acts. Coverture also protected men from mass imprisonment for debt in early modern England. In this case, Day’s counsel claimed that, according to coverture, a wife had an equal right to beat her husband as she did to beat herself. The prosecutor countered that if a wife killed her husband, she would be charged with murder, not suicide. The presiding judge summarized the law of coverture to the sitting jury.


If any ill the husband hath done,

The woman is fined; for they are one:

If any crime the woman doth do,

Still she is fined; for they are two.

The rule is hard, it is confessed:

It can’t be helped, lex ita est. [2]


Coverture was among a range of institutions and ideas that generated highly disproportionate imprisonment of women. Legal history conventionally interprets coverture as a legal concept oppressing men. [3] Coverture oppressed men in the same way that women-only Selective Service registration oppresses men today.


Coverture has been badly misunderstood in legal history. Coverture assigned to wives responsibility for their husbands’ criminal acts and their husbands’ debts. Coverture increased the criminalization of women. Coverture didn’t give wives the legal right to beat their husbands. Women have long been punished for committing domestic violence, as well as punished for having domestic violence committed against them. Legal historians have stressed husband-beating and largely ignored wives getting attacked by their husbands. [4] Law and policy similarly treats domestic violence with anti-women bias today. Anti-women bias in invoking coverture is a general rhetorical pattern built upon deep structures of gynocentrism.


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Notes:


[1] Robert M. Charlton, “The State vs. Henry Day,” in Charlton & Charlton (1839) pp. 92-104. The quotes above are from id. pp. 96, 97. In 1834, Charlton became Judge of the Supreme Court of the Eastern District of Georgia. From 1853-53, she served as a U.S. Senator for Georgia. See Robert Milledge Charlton biography. The poem is dated 1837. Charlton & Charlton (1839) p. 99. A long, final footnote added:


Note to the Note.


As the prose note to this poetical report has gone the rounds of the papers, headed “The way they do things in Georgia,” perhaps it would be as well for the author to acknowledge that it is a highly exaggerated statement of the existing state of affairs in Georgia, and ought not to be received as evidence against the firmness and wisdom of the bench and bar of this State. The author was a member of the judiciary of Georgia at the time “the State vs. Henry Day” was composed, and therefore very little inclined to attack that branch of the government.


Id. pp. 103-4. “The State vs. Henry Day” appeared with the author’s initials “R.M.C.” in The American Jurist, vol. 20 (Oct. 1838) pp. 237-43. The poem there is dated May, 1837. Id. p. 237.


[2] Lex ita est is Latin for “thus is the law.” After citing the verses in which the judge declared women’s double criminal responsibility, Hartog (2000) p. 104 observed:


The poem was a plausible fiction, coherent with the contemporary law.


As if unequal justice under law for women doesn’t matter, Hartog moved from the poetic declaration of women’s double criminal responsibility to the conventional one-sided, false understanding of the incidence of domestic violence. Coverture was a legal fiction rarely determinative of legal results. Id. p. 106. The legal fiction of coverture, however, supported general gynocentric bias towarddisproportionate punishment of women.


[3] Wikipedia, which has struggled with the problem of masculist bias, features considerable anti-women bias in its entry on coverture.


[4] E.g. Hartog (2000) pp. 104-110, with includes poorly informed discussion of the “rule of thumb.” The myth that a wife could legally beat her husband with a stick no thicker than her thumb (the mythic “rule of thumb”) is prevalent in scholarly family history. For a thorough review of formal law, Kelly (1994). Commenting on a court’s declaration that it wouldn’t interfere in minor incidents of violence at home or in the schoolyard, Kelly mythologizes law in action and endorses conventional gender stereotyping of domestic violence:


the court would have made the same judgment {not all minor violence belongs in criminal court} if the husband had done the beating. One cannot conclude, therefore, that wives were allowed a special latitude in chastising their husbands, except, of course, in the sense that wives were much more prone to such misconduct than husbands and would more readily benefit from the court’s conclusion.


Id. p. 346, n. 25. Especially if domestic violence is defined to encompass minor violence, e.g. slapping, men almost surely would be found to be more prone to domestic violence than are women. Almost all minor violence isn’t in fact taken into criminal court and could not feasibly be policed in a non-totalitarian state. Charlton & Charlton (1839), p. 104, writing from judicial experience, frankly points to the legal difficulty of fairly judging domestic violence. Judges today would hardly dare to make that common-sense observation. More generally, Kelly (1994) falls to recognize the gynocentric structures supporting the “rule of thumb” myth and their implications for the criminalization of women.


[image] Prince.  Thanks to Clipartcottage for making the image available under a Creative Commons Attribution license.


References:


Charlton, Robert M., and Thomas Jackson Charlton. 1839. Poems. Boston: C.C. Little and J. Brown. (2nd ed., 1842)


Hartog, Hendrik. 2000. Woman and husband in America: a history. Cambridge, Mass: Harvard University Press.


Kelly, Henry Ansgar. 1994. “‘Rule of Thumb’ and the Folklaw of the Wife’s Stick.” Journal of Legal Education. 44 (3): 341-65.


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