Rule of Thumb, Hitting Wife with Switch No Thicker Than Thumb, History Says Judge Said OK
By law, the “rule of thumb” almost certainly let a husband hit his wife with a switch no thicker than his thumb. This was likely the law in England in , by . At around that time, in several nations, there were laws that were decidedly worse, if not as memorably named. The rule of thumb was not an anomaly, a law in isolation. It had company. Men, for the most part, liked these laws.
Complicating the research is that general history and not legal history is what reveals the rule’s applicability in court and thence in family life. That two-track history is what may be most noteworthy now.
Linguistically, avoiding the phrase in its more flippant sense is helpful.
- Table of Contents
- > Introduction
- > Fundamentals of Law
- > Why a Dead Rule is Still Important
- > Nature of Evidence: Historical and Legal
- >> Two Approaches Can Merge
- >> Legal Approach
- >> Historical Approach
- > Evidence Supporting the Hypothesis
- >> Rashness, Rigorous Severity, and Club Law
- >> Blurting Without Premeditation
- >> Attitude Not Original
- >> Caricature Based on Fact
- >> Three Caricatures
- >> Incautious Opinion Reported in Letter
- >> U.S. Said Rule From Respectable Authorities But Thumb Size Irrelevant in State
- >> U.S.: Doctrine Affirmed But No Longer in Effect in State
- >> Historian Finds Attempt to Revive Rule
- >> Declaration and Poster
- > Evidence Ambivalent on the Hypothesis
- >> Settled or Alleged
- >> Unfortunate Assertion Planting Belief More Deeply into Prejudiced Caricaturist
- > Evidence Opposing the Hypothesis
- >> No Substantial Evidence and Act Would Get 6 Months in Prison
- >> Probably Apocryphal
- > Interpreting the Evidence
- > Evidence of Other Nations’ Laws Consistent with This Hypothesis
- >> Wales
- >>> Forearm’s Length and a Middle Finger
- >>> Strike Anywhere Except the Head
- >> Scotland
- >> Ireland
- >>> Dr. Coghill’s Opinion
- >>>> Report in
- >>>> Report in
- >>>> Secondary Report in
- >>>> Secondary Report in
- >> France
- >> Jutland
- >> United States
- >>> > North Carolina
- >>> Unknown in Other Than States
- >> Iceland
- >> Albania
- >> Thai Women
- > Popular Perception of Law’s Substance
- >> Evidence of Popular Views
- > Legal Context of this Rule
- >> Other Legal Restraints on Wives
- >> Whether Admonition Allowed Any Beatings
- >> Husbands’ Rights Limited, Superstition of Thumb, and Thumb Being That of Chastiser not of Judge
- >> Feme Covert
- >> Reciprocation
- > Public Discourse
- >> Claiming a Beating is Nonviolent
- >> Wife-Beaters Finding Succor
- >> Two Songs For Henpecked Husbands
- >> Women by Nature Less than Men
- >> Judge Buller’s Own Thumb’s Size
- >> Opinions in Pornography
- >> s United States Looking Back
- >> Naomi Wolf in Ms. in
- >> Critics of Feminism in
- >> Rule’s Support Tepid
- >> Ireland
- >> English Husbands’ vs. Wives’ Views
- >> Lacking Statistics of Occurrence
- >> Etymological Ambiguity Between Origin and Since
- >> Other Modern Analyses Mixed with Views on Prevalence of Violence Against Women
- > Pronouncement as Law, Legal Procedure, and Possibility of Legal Error
- >> Whether it was a Rule
- >> Whether Judge Needed to Clarify Legality
- >> Case Proceedings
- >> Legal Effect of Legal Commentary
- >> Amendment of Rule
- > Death From Thumb-Thick Stick
- > Biography of the Judge
- >> Basics
- >> Additional Opinion
- >> Notorious Trial on Different Issue
- >> Proper Style with Name
- > Open Issues Unlikely Ever to be Resolved
- >> Thumb’s Precise Thickness
- >> Authoritativeness of Old Publications
- > Research that Still Can be Done
- > Linguistics
- > Conclusion
- > Notes
Why a Dead Rule is Still Important
The rule and rules like it reveal governmental permission for violence that keeps females inferior to men. Not only permission, but acquiescence with popular views from men is shown. Acquiescence even by high institutions, because this was not a rule meant for just a few big players’ benefit, like a tax cut for the largest businesses, but meant for the sake of husbands generally, even poor husbands. Husbands were roughly three out of every eight adults.1 That law is thus for the benefit of a massive constituency. The rule stood on a ground of benefiting society at large, by holding men responsible to society for their wives’ crimes, through the principle of feme covert, adding to the law’s popularity among men. This problem of control and subjugation persists and manifests widely and violently now, although at least not as often with governmental permission.
While this law no longer exists in certain nations, gender-motivated violence against women still continues with the legal institutions often unwilling to enforce laws against it. Ramifications are many and intense. One, granted that it’s lesser, is in linguistics. The phrase rule of thumb even when meaning ‘loose measure’ still reminds some of us of this old law, and some of us find it more sensitive to replace the phrase so we don’t needlessly invoke such a dark shadow.
Controversial it was, and well it should have been. Men portrayed women as disagreeing and thus men cannot deny knowing that some women objected. On the other hand, probably some women considered it part of nature and unchangeable; probably some thought it an ancient tradition, and they may have been right about that part; but the controversy and eventual displacement of the rule was also right.
The law came to the United States from, mainly, Great Britain. The English developed common law based on case-by-case opinions. England had colonies that became the U.S. and, even though we became a nation through a war against England, we largely adapted English common law during our colonial status and finally forking it when we ratified our national Constitution in and forking it also when the states adopted their intrastate legal systems in various years. By forking it, subsequent developments in England were no longer relevant to the U.S. but the U.S., at Federal and State levels, could and did amend the body of law as each saw fit without asking England for permission. It appears that law similar to the rule of thumb existed in colonial and early post-colonial U.S. legal history, although I don’t know if it existed in all of the colonies and States, and I don’t know if it existed in Louisiana, which was governed by law developed in France, the civil code, and which joined the U.S. later than the first 13 colonies came together. I also don’t know the content and influence of Spanish law in places like Florida and some Western states.
In the s–s, debates were publicly revived2 in the U.S., often without reference to details of underlying research, and in responses and extensions, including on the Internet. When the debates cited any evidence, those I saw tended to cite only legal evidence. That’s understandable, since the issue is primarily legal, but other evidence got less critical evaluation, and that, if only for legal credence, deserves attention.
The essential debate is not yet settled. It perhaps is kept unsettled, if now quietly given louder concerns, because of more fundamental disagreements on whether feminism is needed at all (because men should be trusted to have women’s best interests at heart freeing women to focus on taking care of men and children so the men can take care of women) or the proper scope of feminist concerns and responses (preferring the mild causing little offense among “real men”) that in turn shapes the debate on history’s contribution to discourse in all feminisms. To that debate, I try to contribute here.
Fundamentals of Law
Law is not limited to a statute enacted by Congress and similar documents. What Congress enacts we often call a law, and so do many authorities, and that’s not wrong, but law is much more. Law is, more generally, that set of requirements that are enforceable by third parties such a court. Rights are included, because one person’s right is another person’s obligation to allow the right even if the other person and various additional people don’t like it.
In this instance, we’re talking about common law, a system that was developed in England as a follow-on to the customary law from the Roman government of a couple of millennia ago. The common law developed in part because kings decided many cases personally but kings got too busy and asked (or ordered) certain other people to handle cases on behalf of the king, and when there were many people acting as judges they needed some way to maintain consistency across judgments, so the public would have a consistent understanding of what was expected of them and what their entitlements were. One way was to encourage widespread knowledge of decisions and opinions rendered in prior cases. This was done by publishing them and making them available to lawyers who advised clients. Thus, case law grew as a system of law, alongside documentary law issued over time by kings, probably queens, and probably regional and local leaders, and eventually the Parliament. Case law has never gone away as a vital part of law; indeed, it has grown. Case law is not legislation; judges are not legislating from the bench, but are discovering law already in the sources but which had not been appreciated in the form in which judges ultimately find it. While codifications, such as the U.S. Code, typically are to be interpreted and applied literally, i.e., in accordance with their plain words, that only applies where the plain words are readily understood in light of the set of facts being litigated, and that is not always possible, in which case the intent of the Framers, legislative intent, reports of committees sending a considered bill to the floor of a legislature that eventually passes it, a floor debate in the legislature just prior to a vote that results in passage by a house, the purpose of the law stated in the statute, or some other source deeper than the plain words will typically be considered by a court informed by arguments by the parties to a case. Important law can be found in case law without being anywhere else. That may have happened with the rule of thumb, too. This article discusses this possibility in the context of common law.
Nature of Evidence: Historical and Legal
Two Approaches Can Merge
Determining whether the legal point was uttered requires methods from both legal tools and historiography. These conflict at the surface but the conflict can be resolved into a single set of facts.
The lawyers’ question is usually reduced to whether lawyers can find a record of the statement that would be adequate for use before judges in subsequent litigation.
Litigation is largely binarily adversarial. A case with many parties is handled as if two opposing sides represent all the parties. Unless the two sides reach some other compromise, the model is that, for each claim, one side is right and the opponent is wrong. While this might seem to favor each side uncovering only evidence with which one agrees, each side still has to prepare to meet an opposing attorney who may have been more thorough in research. Thus, in one’s own research, unfavorable opinions have to be found, the better to prepare for them. But if, despite high legal diligence, an advocate on one side of an issue doesn’t find such an opinion, probably their opponent won’t either.
Litigation is characterized by a societal demand that in each case a final decision be made, with only limited recourse to later change. That leads to courts imposing time limits that force research for a client to be relatively quick. The research also has to be replicable by an opponent trained in general legal research without being a specialist in one subtopic.
Litigation, including preliminaries, is characterized by communications between opponents usually trying to resolve a case before it goes into jury deliberations that are hard to predict or is decided by a judge, also hard to predict. So, precedents and other laws have to be cited using sources available to both sides and to judges using electronic tools and physical libraries they already possess. While a biologist who reports making a remarkable discovery can advise a doubtful competitor to buy a better microscope, advising a judge to subscribe to another set of volumes may lead to losing the case. Attorneys and judges will generally have the codifications and case law for relevant jurisdictions and citations limited to those will generally be accepted as sufficient.
If the statement being sought was in a case, a judicial precedent is usually needed, and, for that, proceedings transcripts are usually inadequate (perhaps because older ones likely lack support for speedy searches within content), while judges’ findings of fact and conclusions of law are preferred. Those are judicial opinions, which are written, far briefer than transcripts, to the point, carefully grammatical (thus quotable with more certainty of meaning), widely disseminated, and agreed upon as being citable authority. However, not all case law is ever published. Today, many opinions designated as unpublished are still published in the sense encompassed by U.S. copyright law (putting aside that law is not copyrightable), because being unpublished in one sense means merely published with less prominence and encumbered with a procedure imposed by courts on a party wanting to rely on a so-called unpublished opinion. Probably, in older days, less case law was being published, numerically and also in proportion to the number of cases decided. It was more expensive to publish back then than it is now, and back then there were fewer customers who could share the high expense. Thus, in the eighteenth century, not only were fewer opinions being published, they represented a smaller share of case law opinions, printed and verbal.
While a lawyer today would rarely rely on unwritten case law except perhaps in front of the same judge, a holding would have existed regardless of whether it had been written and fewer would have been written, so reliance on memories of verbalisms would have been more acceptable, so, back then, reliance on unwritten law would have been much more common. Today, in theory, one could convince a U.S. court of a centuries-old English common-law legal holding that wasn’t published in official reports or in a treatise, but the odds of doing so would be extremely tiny. Knowledge of much verbal case law, perhaps most case law, back then would have been passed along and down among lawyers and acquired through experience, and much more so than today.
The modern methodology also includes searching treatises, journals, and casebooks and any other secondary and tertiary sources meant to be judged and read by contemporary lawyers and generally authored by widely-recognized authorities such as law professors and judges writing outside of court. But those sources were likely fewer or nonexistent two to three centuries ago. Since they’re usually supported by law references, the expectation in the profession is that such a secondary or tertiary source need not itself be cited to an opponent because the reader can and should extract the relevant law and cite the law instead.
Thus, not finding a case precisely on point is not proof of an absence of a ruling, especially among verbal rulings, especially long ago.
Possibly, the judge under discussion here uttered a “rule of thumb” statement during a particular trial in which it did not have to be included in a conclusion of law or even in support of a finding of fact, for example, by including it in a question directed at a witness who then did not allege anything requiring further use of the statement. The uttering of legal views that do not affect the current case still happens, as when a U.S. judge, or several judges together, issues a concurring or dissenting opinion; it has no bearing on a party’s rights and obligations, which is what law regulates. Its bearing is on possible future litigation, where it might be used to persuade more judges to form a majority around a new view of the law, but not on the case at bar.
And, while a much later source says it was “at a trial”,3 it is possible that it was uttered where an attorney heard it during a lunch break or while waiting for a stagecoach. That could have revealed the judge’s private thought on the matter, even if not necessary to any case underway at the moment.
The research could then include asking colleagues who often practiced before a given judge about the latter’s private leanings, but that’s out of the question when the judge and all his contemporaries are long deceased. Past records of those views, such as in attorney-to-attorney correspondence, are probably scarce, because judges tend to get offended by claims of judges’ having private views (attorneys are expected to be advocates and may hold unique perspectives but judges are expected to be neutral and arrive at decisions with which most other judges would agree). A lawyer’s economic imperative, reflected in a career interest and a tendency to compete against most other lawyers, thence preferring that most other lawyers have less knowledge, makes revealing knowledge unlikely, at least until retirement or if, for some, becoming a judge, a professor, or an author. Thus, when the knowledgeable people die, most of that knowledge evaporates.
Legal research likely has been tried in the last few decades indirectly by writers and directly by lawyers and many law students, including women, and yet has apparently failed to uncover a legal report of this rule. I didn’t see much point in duplicating their efforts. This doesn’t preclude finding it later, but research into the existence of a rule that has not been controlling in, perhaps, a century or more would usually be useless even as context. So, legal research has probably concluded that, while the general rule of “moderate correction” has been found, the specific “rule of thumb” has never been found in law.
Historians, however, are less restricted by law in determining whether an event, even a legal event, is a fact of history, since historians’ findings ordinarily do not directly determine anyone’s rights and obligations under law. Historians’ methodology, without rejecting law, nonetheless includes searching any documentation, law and not law, that might have, with contextually reasonable reliability, recorded or reflected statements, sentiments, and perceptions of significant portions of the general public, anyone in leadership, and anyone tending to observe and record events at the time.
When evidence is uncovered, historians often seek multiple sources, especially independent sources, for consistency in deducing or checking a conclusion. Lawyers are less in need of extralegal corroboration of a legal point, since they use other indicia of authority for a point of law, such as whether a statement is a statute or merely an office manual or a majority opinion or merely a concurrence. Historiography depends more on agreement across independent items of evidence.
Among many kinds of extralegal sources historians generally accept are publications, artwork, and correspondence. Publications asserted that the event occurred. One described the utterance as an obiter dictum, in which case it was not binding but was stated and could be influential in the judiciary. It could be more influential since the judge sat in a significant court. A modern historian described the judge as having attempted to revive the doctrine, meaning, in that historian’s opinion, it may have been almost nonexistent before and he may not even have revived it, and that would be consistent with it being an obiter dictum if and when this judge uttered it.
Three caricatures issued in revealed a perception that such a ruling had issued. Political cartoons today are published on the editorial pages or their facing pages in many U.S. newspapers. Today’s are often outrageously unrealistic and false in their messages, but they usually use recently established facts as starting points from which they veer in outrageous directions. Perhaps they were less outrageous centuries ago because they did what photojournalism does now for accuracy but didn’t in Judge Buller’s lifetime. Established cartoonists of any political persuasion, given their repeated publication, are more likely to be safer guides to underlying facts if corroborated.
This does not preclude misunderstanding; it’s easily possible that what the judge uttered was not quite what people thought had been uttered. However, based on common experience with other distortions of events, it probably wasn’t totally unconnected. Sometimes misunderstandings are opposite; but if that had happened someone, maybe an ally of Judge Buller’s, would likely have put forth what Judge Buller had said that was opposite of the claims, and there seems to be no such counterclaim by anyone. So, the caricatures, while we need to allow room for some error due to artists’ oversimplifications, likely present a rather reasonable approximation of Judge Buller’s view.
Correspondence to the judge has been reported as having occurred. However, I have not seen a copy of it. Whether it or a reply has been preserved is yet to be ascertained. Reportedly, husbands and wives wrote to the judge asking for the dimensions of the thumb used as a standard (the original phrasing as alleged is unclear as to whether the judge meant a husband’s thumb or the judge’s own thumb). While it appears that contemporary spouses believed the ruling existed, this doesn’t preclude that they, too, misunderstood the law.
A conclusion, to be valid, must be supported by at least one good item of evidence (whether legal or extralegal) and may not be significantly contradicted by any other evidence. On this issue, there is contradiction, but not enough to invalidate the conclusion that Judge Buller said it.
Evidence Supporting the Hypothesis
This is the evidence I think favors finding that Judge Buller stated the rule. I have sequenced it starting with what I think is the most compelling, not necessarily chronologically.
Rashness, Rigorous Severity, and Club Law
From : “The circumstances of this trial tended to confirm the general impression of Buller’s rigorous severity, which two rash sayings of his had previously created. . . . The other unguarded saying, which escaped from him unpremeditatedly, excited general animadversion, namely, that a husband had a right to chastise his wife with a stick no thicker than his thumb. The subject offered too fair an opportunity to the caricaturists not to be eagerly grasped at. His portrait as Judge Thumb speedily adorned the print shops, and the women enjoyed a hearty laugh at the expense of this ungallant champion of club law. ‘The civil law,’ says the more courtly Backstone‡, allowed the husband, for some misdemeanors, [‘]flagellis et fustibus acriter verberare uxorem, with whips and clubs sharply to strike a wife; but with us, in the politer reign of Charles the Second, this power of correction began to be doubted,’ and may be now positively denied. The sly remark of the commentator is still too true, that the lower rank of people, who were always fond of the old common law, claim and exert their ancient privilege.”4 The phrase flagellis et fustibus acriter verberare uxorem appears to have been translated by Blackstone as ‘with whips and clubs sharply to strike a wife’; Google Translate translates it as ‘pressed hard to beat a wife, and to be beaten with whips,’.5 The phrase “club law” may be a pun, the other meaning being law applicable to clubs which people might join, and therefore I do not interpret it as corrobatively meaning that there is in the author’s mind a body of law about clubbing people.
Blurting Without Premeditation
“[Judge] Buller ‘unpremeditatedly’ blurted out the phrase”.6
Attitude Not Original
“[Judge] Buller did not originate the phrase but . . . it reflected his attitude.”7
Caricature Based on Fact
A caricature contemporaneously may have had this as a caption: “JUDGE THUMB; or, Patent Sticks for Family Correction: warranted Lawful!”8 It was by Gillray, was in a political series, and is dated . In , it was described as “[a]lluding to an opinion publicly expressed by Judge Buller, that a man might lawfully beat his wife with a stick, if it were not thicker than his thumb.”9 The description gives Judge Buller’s statement as fact, not conjecture.
The three best-remembered contemporary caricatures on the issue were described by the British Museum, all three descriptions and two of the caricatures personally naming the Judge:
“6122 JUDGE THUMB, OR—STICKS OF A LAWFUL SIZE FOR FAMILY DISCIPLINE.
“Pub. by I. Cooke, Temple Bar . [? Hixon]
“Engraving. Judge Buller in judge’s wig and gown, walking, r. to l., carrying in both hands a bundle of rods resting on his l. shoulder. He is saying, Here’s amusement for married gentlemen or, a Specific for a Scolding Wife; who buys of me.
“In the background (l.) a man has seized his wife by the arm, and raises a stick to beat her; she says: Oh Murder! Murder! Oh cruel Barbarian. He answers, Cruel, ha! tis according to Law, you Jazabel. Both are dressed in the fashion of the day; she wears a cap, a wide petticoat, and frilled apron.
“This would appear to have suggested Gillray’s well-known satire, No. 6123, which it closely resembles in design; see also No. 6124. Reproduced, Paston, Pl. ccix.
“. . . .
“6123 JUDGE THUMB, OR—PATENT STICKS FOR FAMILY CORRECTION: WARRANTED LAWFUL!
“Pubd , by E. D’AcheryE. D’Achery, S t James’s Street.1
“Engraving (coloured and uncoloured impressions). Judge Buller, walking l. to r., in judge’s wig and gown. He carries a bundle of rods on his l. shoulder, another bundle under his r. arm. He is saying, Who wants a cure for a rusty Wife? Here’s your nice Family Amusement for Winter Evenings! Who buys here. His head is very fully characterized, and is, according to a contemporary note on one impression, ‘a very striking likeness’.
“In the distance, on the r., a screaming woman runs away from her husband, who raises his stick above his head with both hands. She cries Help! Murder for God’s sake, Murder! He says, Murder, hay? its Law you Bitch! its not bigger than my Thumb! They are dressed like working people. The background is a high stone wall, freely sketched, with clouds above it.
“Buller (–) was reported to have said that a husband could thrash his wife with impunity provided that the stick was no bigger than his thumb. See Nos. 6122, 6124. Grego, Gillray, pp. 43–4; Wright and Evans, No. 13.
“. . . .
“A reduced copy (coloured) is in ‘Caricatures’, v, p. 6. B.M.L. Tab. 524. a. Another reduced copy was published in The Caricatures of Gillray . B.M.L. 745. a. 6.
“. . . .
“6124 MR. JUSTICE THUMB IN THE ACT OF FLAGELLATION.
“Engraving From The Rambler’s Magazine. Judge Buller (r.), in judge’s wig and robes, is raising a stick above the shoulders of a woman, who cowers away from him, holding up her hands. He says Tis no bigger than my Thumb. She says, Would I had known of this before Marriage. She is dressed in a cap, a petticoat, and an under-bodice; her stays lie on a chair (l.) against which a cat is rubbing itself. A dog (r.) barks. Leaning against the wall is a large bundle of rods like those in Nos. 6122, 6123. A partly-rolled document lies on the floor inscribed A Husband may Chastize his Wife with a Stick the Size of his thumb. Coke.
“. . . .
“1 On one impression W. Humphry 227 Strand has been substituted for E. D’Achery.”
(Bibliographic information is given below.)10
While the first was by Gillray, nearly ten months later Gillray revisited the theme with essentially the same viewpoint and another artist, perhaps named Hixon, did so, too. Those revisits suggest that Gillray’s first caricature was popularly remembered or sold well.
Incautious Opinion Reported in Letter
“[Judge Buller] obtained the nickname of Judge Thumb, from having incautiously given an opinion that a husband might lawfully beat his wife, provided the stick used were no thicker than his thumb.”11
U.S. Said Rule From Respectable Authorities But Thumb Size Irrelevant in State
In , a North Carolina, U.S., appellate court, in a dictum, while rejecting the rule of thumb, acknowledged that it had been asserted by others deserving of some respect: “It [**10] is not true that boys have a right to fight; nor is it true that a husband has a right to whip his wife. And if he had, it is not easily seen how the thumb is the standard of size for the instrument which he may use, as some of the old authorities have said; and in deference to which was his Honor’s [the trial court judge’s] charge. . . . Because our opinion is not in unison . . . with the philosophy of some very respectable law writers, and could not be in unison with all, because of their contrariety--a decent respect for the opinions of others has induced us to be very full in stating the reasons for our conclusion. . . .”12
U.S.: Doctrine Affirmed But No Longer in Effect in State
In , also in North Carolina, an appellate court decided that there definitely was such a “doctrine”, although it was not in effect in the state in and the court’s ruling applied even though the switches were smaller than a thumb:
“. . . . We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances.
“. . . . .
“If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties [**3] to forget and forgive.
“No general rule can be applied, but each case must depend upon the circumstances surrounding it.
“Without adverting in detail to the facts established by the special verdict in this case [including that “[the husband] then struck her [his wife] five licks with . . . two switches, which were about four feet long, with the branches on them, about half way, and some leaves. One of the switches was about half as large as a man’s little finger, the other not so large.”], we think that they show both malice and cruelty.
“In fact, it is difficult to conceive how a man, who has promised, upon the altar to love, comfort, honor, and keep a woman, can lay rude and violent hands upon her, without having malice and cruelty in his heart.”13
Historian Finds Attempt to Revive Rule
In , in the U.S., a professor of history asserted that in a judge “tried to revive” the rule and some descriptions of Gillray’s caricatures were provided:
“. . . .
“This shift in moral theology did not affect the theoretical position in common law that a husband may administer ‘moderate correction’, a doctrine reasserted in court by the Solicitor-General as late as the s. But in practice and by general consent this had fallen into disfavour, and it is hardly surprising that there was a great outcry in , when a pedantic judge tried to revive the ancient doctrine that it was lawful for a husband to beat a wife, provided that the stick were no thicker than his thumb (plate 19).1”14
“Who wants a cane for a nasty Wife ? – — — – Here’s your nice Family Amusement for Winter Evenings . Who buys here ? — –”15
“Halp!...Murdur for God sake,Murder !”16
“Murder, nay ! its Law you Bitch ! it’s not bigger than my Thumb!”17
“19. Wife-beating (‘Judge Thumb’). By J. Gillray, .”18
The following is just additional information, probably for legal and attributional compliance only, for some of the foregoing:
“Between pp 384 and 385
“. . . . .
“19. Wife-beating (‘Judge Thumb’). By J. Gillray, .
“(By permission of the Trustees of the British Museum)”
(Bibliographic information for the additional information is given below.)19
Declaration and Poster
In , an academic lecturer in history asserted that the judge declared the rule and an academic staff tutor presented a poster asserting that the permission existed in , but what source claimed the permission in is unknown:
“Another aspect of crime that appears frequently in current social debate, domestic violence, was also widely commented on in the Victorian period . . . . Certainly legal theory, at least until the eighteenth century, held that a husband’s rights over his wife included that of moderate physical chastisement. This practice was upheld in when Judge Buller summed up the legal position by declaring that a man was entitled to beat his wife with a stick, so long as it was no thicker than his thumb.”20
“IN , A MAN COULD
“BEAT HIS WIFE WITH A
“STICK - IF IT WAS NO
“THICKER THAN HIS THUMB”21
Evidence Ambivalent on the Hypothesis
Some evidence is evidence, but I’m not sure which way, because it seems to both support and oppose the hypothesis.
Settled or Alleged
One author in appears entirely ambivalent on whether Judge Buller said such a thing, referring to it as “settled” by “contemporary repute” and as having an “intended standard” for the thumb but also as “alleged” and rejecting caricatural evidence, which would have been a major part of the evidence known at the time:
“A much disputed point in judicial biography must be regarded as settled, so far at least as contemporary repute can settle it, by Judge Thumb, or Patent Sticks for Family Correction: warranted lawful. This is based on the alleged obiter dictum of Mr. Justice Buller, that a man might lawfully beat his wife with a stick no thicker than his thumb. The learned judge appears in his robes carrying two bundles of sticks with the ends shaped like thumbs, crying: ‘Who wants a cure for a rusty wife? Who buys here?’ In the distance is a man beating a woman, who screams ‘Murder!’ while he retorts: ‘Murder, hay! ’tis law, you b—; ‘tis not bigger than my thumb.’ It was a moot point whether the intended standard was the thumb of the husband or that of the judge; and his lordship is said to have received numerous applications for the exact measurement of his thumb from married people of both sexes.”22
“This fierce diatribe has fortunately little or no application to the caricaturists of our day; but if they wish to exert a beneficial influence or enjoy an honest reputation, to check misgovernment or to amuse and instruct society, they should no more imitate Gillray than a modern satirist should adopt the license of Aristophanes, but take for their model the refined, good-natured, kindly, laughter-moving HB—
“‘Whose humour, as gay as the firefly’s light,
“Played round every subject, and shone as it played,
“And whose wit in the combat, as gentle as bright,
“Never carried a heart-stain away on its blade.’”23
Unfortunate Assertion Planting Belief More Deeply into Prejudiced Caricaturist
A 20th-century author is hard to interpret as being pro or con: “He [caricaturist Gillray] was considered hasty and prejudiced, and his unfortunate assertion that a husband could thrash his wife with impunity provided that the stick was no bigger than his thumb, tempted Gillray into planting the belief more deeply in popular opinion by a caricature of Buller as Judge Thumb, which he published on .”24
Evidence Opposing the Hypothesis
Some evidence, but not much, opposes the hypothesis.
No Substantial Evidence and Act Would Get 6 Months in Prison
“It may perhaps restore him [“Sir Francis Buller”] to the ladies’ good graces to be told that, though the story [“the obnoxious and ungentlemanly dictum that a husband may beat his wife, so that the stick with which he administers the castigation is not thicker than his thumb”] was generally believed, and even made the subject of caricature, after a searching investigation by the most able critics and antiquaries, no substantial evidence has been found that he ever expressed so ungallant an opinion. Had he committed himself so rashly, he would have lost the reputation he enjoyed in Westminster Hall; for neither the Common Law nor the Statute Law of England warrants such brutality; and any husband who, upon the faith of the judge’s reputed doctrine, should venture to resort to such a mode of punishment, would infallibly be sentenced to six months’ imprisonment.”25
Over two centuries later, the claim is said to be apocryphal, perhaps meaning ‘imagined and not true’: “Buller, Sir Francis, Judge . . . . The dictum was attributed to him that a husband may beat his wife so long as the stick he uses is no thicker than his thumb . . . . The remark is probably apocryphal . . . .”26
Interpreting the Evidence
Contemporary caricatures are part of the evidence. Back then, caricatures likely served an editorial commentary purpose not unlike today’s newspaper editorial cartoons and thus had to be based, at a fundamental level, on shared perceptions of events, before diverging from the views of some readers.
The caricatures attack the ruling (if it was a ruling), but at least the latest of the three caricatures and the caption of the earliest caricatures (I don’t recall seeing the two earlier caricatures) attack it on substantive grounds, family violence then being widely debated and rejected by many and endorsed by many others, not on whether the ruling occurred. Book authors, at least some of some repute, and the reported existence of the correspondence to the judge are also consistent, if not separately rock-solid.
Evidence of Other Nations’ Laws Consistent with This Hypothesis
While law does not develop identically everywhere or even just in similar or related nations, it does tend to be influenced by legal developments elsewhere, as promulgators observe each other’s changes and their apparent effects and select and adapt some of them for their own nations.
Wales borders on England, so there would have been a lot of contact.
Forearm’s Length and a Middle Finger
In the nineteenth century, a stick could be as thick as a middle finger. That’s a bit thinner than a thumb, and this law limits the length of the rod (English Judge Buller’s view did not state a length limit) and the number of hittings (Judge Buller did not mention an upper limit on the whack quantity), but hitting was allowed for disrespect, not just legal violations against society. “To our own day, this right of reasonable chastisement still finds a place among popular legal superstitions, coupled with a plain practical rule, that the bounds of reasonableness are not transgressed unless the instrument of punishment exceed the thickness of the chastising husband’s thumb. In this there is a curious resemblance to an old Welsh law,* which prescribed to the husband who beat a disrespectful wife, a maximum of ‘three strokes with a rod of the length of his forearm and the thickness of his middle finger.’”27
Strike Anywhere Except the Head
In the 10th century, Howel Dda or Hywel Dda allowed a husband to strike his wife anywhere except the head with a stick of unstated thickness but about a foot and a half long, three times, for saying a harsh or disgraceful word to him:
“5. If a wife utter a harsh, or disgraceful word to her husband; let her pay to the husband three kine as camlwrw, for he is her lord; or, let him strike her three blows, with a rod of his cubit length, on any part he may will, excepting her head.
“6. If a man beat his wife without cause, let him pay her saraad to her, according to her privilege.”28
Scotland, which is near England and on the same large island and thus likely to experience much contact between the societies, is discussed by comparison to French law: “† The old French law . . . allowed him to beat her ‘sans mort et sans mehaing,’ and otherwise ‘resnablement castier’ her. Moreover it stimulated him to an assiduous correction of her conduct, by making him civilly responsible for her torts. So, too, did Scottish law, but it released from this responsibility if he showed that he had done his best to discipline her, and ‘sæpius eam castigabat, in quantum poterit.’”29
While Ireland is an island separate from the British isle, it’s near and there was likely much sailing back and forth.
Dr. Coghill’s Opinion
In ca. , Ireland was independent although strongly influenced by Great Britain, arguably an English colony in effect.30 Irish law that was similar and worse than that in 10th-century Wales likely existed at some point. The Roman Catholic Church approved, at least by implication, for Ireland.
This is a lead, from , to a possibility of how Judge Buller in England arrived at his view. Perhaps Judge Buller was indirectly influenced by a judge in Ireland who ruled that a switch may be used by a husband to hit a wife for moderate correction: “A similar ungallant doctrine [similar to Judge Buller’s on “a stick no thicker than his thumb”] had been mooted in the preceding century by a Dr. Marmaduke Coghill, judge of the Prerogative Court for Ireland, and with still more detriment to himself. Having been called upon to decide the grounds of a divorce sued for by a wife against her husband, who had given her a good beating, the venerable civilian delivered a solemn opinion that with such a switch as the one he held in his hand, moderate chastisement was within the husband’s matrimonial privilege. This legal maxim occasioned so much offence or alarm to a lady to whom the Doctor had been for some time paying his addresses with a fair prospect of success, that she peremptorily dismissed the assertor of so ungallant a doctrine. Dr. Coghill, as may be guessed from his opinions, died unmarried.†”31
A slightly different version, of , is this: “A similar doctrine had already been laid down by Dr. Marmaduke Coghill, judge of the Prerogative Court in Ireland, who in a suit by a wife for a divorce on the ground that her husband had given her a sound beating, delivered a well-considered opinion that, with such a switch as the one he held in his hand, moderate chastisement was within the matrimonial privileges of the husband.*” “* ‘Swift’s Works,’ Scott’s edition, vol. ii. p. 293, note. Scott states that a lady to whom Coghill was engaged flung him over at once. There is a passage in Fielding, expatiating, half in earnest, on the virtues of the switch. It is where BullerBlack George is called a villain by his wife. ‘He had long experienced that when the storm grew very high, arguments were but wind, which served rather to increase than to abate it. He was therefore seldom unprovided with a small switch, a remedy of wonderful force, as he had often essayed, and which the word villain served as a hint for his applying. No sooner, therefore, had this symptom appeared than he had immediate recourse to the said remedy, which though, as is usual in all very efficacious remedies, it first seemed to heighten and inflame the disease, soon produced a total calm, and restored the patient to perfect ease and tranquility.’”32
Secondary Report in
This source, of , is secondary. The author, while engaged in scholarship, is so in another area. In this area, his scholarship is weaker, as his relevant statement is inadequately sourced. “Dr. Marmaduke Coghill, Judge of the Prerogative Court in Ireland, ruled, c. , that a husband might give his wife moderate correction with a little cane or switch. Swift alludes to his being jilted in consequence.—Letters to Stella, .”33 The citation to Letters to Stella supports Swift’s allusion, but hardly the judge’s ruling, since, while Swift refers to the judge’s statement or sentiment, Swift does not cite a source for it nor claim first-hand knowledge of it.
Secondary Report in
Another slightly different version, also a secondary report, of , is this: “Dr. Marmaduke Coghill, judge of the Prerogative Court for Ireland . . . . judicially decided that a husband might give to his wife ‘moderate chastisement,’ with such a switch as that he held in his hand. This judgment from the bench brought about a rupture between the lady to whom he was engaged to be married, whom Swift calls ‘his drab.’“34
France was just across a channel from England and the water had likely been sailed, rowed, or paddled across for many centuries by many people from both nations. A law lecturer wrote: “† The old French law similarly allowed him to beat her ‘sans mort et sans mehaing,’ and otherwise ‘resnablement castier’ her. Moreover it stimulated him to an assiduous correction of her conduct, by making him civilly responsible for her torts.”35
Definitions of these rights are harder to nail down. The phrase sans mort et sans mehaing means ‘without death and without . . .’, according to Google Translate,36 but I don’t know the meaning of mehaing. Possible definitions of mehaing include ‘annihilation’, ‘destruction’, ‘loss of limb’, ‘mutilation’, ‘injury’, ‘harm’, ‘damage’, and ‘mayhem’,37 but these come from Wiktionary, which should not be treated as reliable.
The phrase resnablement castier means ‘resistantly . . .’, according to Google Translate,38 but I don’t know the meaning of castier. A speculative definition of castier might be derivable from it being, according to Wiktionary, an etymon for châtier, a verb meaning to ‘chastise, punish, or castigate’,39 but defining a word just from one etymon with an unknown elapsing of time is unreliable.
Jutland, perhaps the part in Germany or the part in Denmark, I’m not sure which, had a law by which “a man was permitted to strike wife and child provided he did it only with a rod. Corporal chastisement, even of adult members, was very common. The wife did not dare to lift a hand against her husband.”40
The United States was initially governed by English law through colonization. English common law remains the principal common law across this nation, at both State and Federal levels.
In North Carolina, on appeal in , a lower court’s judgment was upheld but on another ground (“that we will not interfere with family government in trifling cases”). Relevant here is that the appellate court appears, in a dictum, to reject as law the trial court’s ruling that the husband “had a right to whip his wife with a switch no larger than his thumb” when the appellate court says “[w]e will no more interfere where the husband whips the wife than where the wife whips the husband; and yet we would hardly be supposed to hold that a wife has a right to whip her husband” and “[i]t is not true that boys [“under fourteen years of age”] have a right to fight [“upon the playground”]; nor is it true that a husband has a right to whip his wife” (adding, as also a dictum, that, if he had that right, the thickness of the switch or even what “instrument” was “used” or what “manner” produced a given physical effect is irrelevant, relevance attaching to the physical “effect produced”, e.g., “death” or “no injury”):
“. . . .
“The defendant was indicted for an assault and battery upon his wife . . . .
“‘We [“the jury”] find that the defendant struck . . . his wife . . . three licks, with a switch about the size of one of his fingers (but not as large as a man’s thumb) . . . .’
“His Honor [the lower court’s judge] was of opinion that the defendant had a right to whip his wife with a switch no larger than his thumb . . . .
“. . . . .
“. . . READE, J. The violence complained of would without question have constituted a battery if the subject of it had not been the defendant’s wife. The question is how far that fact affects the case.
“. . . . [p. 455:] . . . .
“. . . . .
“. . . .
“It will be observed that the ground upon which we have put this decision is not that the husband has the right to whip his wife much or little; but that we will not interfere with family government in trifling cases. We will no more interfere where the husband whips the wife than where the wife whips the husband; and yet we would hardly be supposed to hold that a wife has a right to whip her husband. We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence. Two boys under fourteen years of age fight upon the playground, and yet the courts will take no notice of it, not for the reason that boys have the right to fight, but because the interests of society require that they should be left to the more appropriate discipline of the school room and of home. It [**10] is not true that boys have a right to fight; nor is it true that a husband has a right to whip his wife. And if he had, it is not easily seen how the thumb is the standard of size for the instrument which he may use, as some of the old authorities have said; and in deference to which was his Honor’s charge. A light blow, or many light blows, with a stick larger than the thumb, might produce no injury; but a switch half the size might be so used as to produce death. The standard is the effect produced, and not the manner of producing it, or the instrument used.”41
Unknown in Other Than States
In the U.S. generally, whether wife-beating with a switch or otherwise was part of American Federal law other than interstitially is unknown. Whether Federal interstitial law at the time even existed is unknown to me. The law as it was in U.S. territories is unknown to me.
In Iceland, “[i]n case of adultery or conspiracy, the husband could kill his wife, but only openly, and he had to announce his act to his neighbors.”42
Albania is in Europe, but far enough from England to make much direct communication unlikey. This is from the 15th–20th centuries:
“Part of being a ‘sack, made to endure’ includes the provision that if a man ‘beats his wife bloody,’ he has only to explain his reasons to her family, and the incident passes without punishment.1 A wife’s duties to her husband are numerous, including to ‘submit to his domination’ and ‘to fulfill her conjugal duties,’ whereas a husband’s only duties to his wife are to ‘provide clothing and shoes’ and to preserve her honor.2 If a man wishes to divorce his wife, then ‘having cut off her hair and stripped her nude, the husband expels her from the house in the presence of relatives and drives her with a whip through the entire village.’3
“These are some of the prescriptions for marital relations that can be found in the Kanun I Lekë Dukagjinit, the Code of Lekë Dukagjini, a series of thirteen books that have functioned as the common-law bible of rural Albania since they were set down on paper by Lekë Dukagjini, a feudal lord, in the fifteenth century. Though the Kanun lost influence during five decades of communist rule, after the fall of communism in and subsequent socioeconomic strife that engulfed the country, many rural Albanians returned to the Kanun as a trusted guide to their daily lives. The Kanun’s aggressive subordination of women and strict laws of personal honor and blood feuds are two of the top contributors to Albania’s slave-trading crisis.
“Being female under Kanun tradition can be so oppressive that there are actually prescriptions that allow a woman to liberate herself by becoming a man. An Albanian virgjinesha (‘sworn virgin’) transforms into a man . . . .4 . . . .5 . . . .”43
Thai women (presumably but perhaps not necessarily in Thailand, whatever the nation may have been named at the time), 15th century and perhaps later: “. . . . The history of Thai women being held as male property dates back to the fifteenth century. As codified in law, men were allowed to beat wives without sanction (as under the Kanun) and they could sell wives as slaves if they grew tired of them. . . .”44
Popular Perception of Law’s Substance
Law is to be obeyed and law grants rights that other parties are duty-bound to recognize. Ignorance of the law is no excuse, it is said, including in England. Presumably, law serves useful policy goals. Therefore, it is in the interest of those who benefit from the law, such as rulers, to reveal, disseminate, and teach the law to people under it and to encourage people to share that knowledge. These they do.
This creates a popular understanding of law’s content. However, difficulties attach.
It’s harder, and doubtless was back then, for the general public to determine the law reliably if one is not a lawyer, if adult basic illiteracy is the norm, if among adults with basic literacy legal illiteracy is the norm, if courts published a smaller portion of case law (especially important under common law), and if the physical books of what was published were less available to nonlawyers (such as if there were no courthouse or public libraries and if lawyers’ and bar associations’ libraries were closed to nonlawyers).
But, since the public needed and demanded to know the law, the gap in legal knowledge would be filled somehow. The filler would be largely lower-quality legal information, including erroneous information, resulting from popular perception and misperception of the law. This generated folklaw, which is the popular understanding of law although it differs from actual law. Within folklaw, internal consistency could still arise, tempered by the intercession of lawyers, police officers, and dispute adjudicators in light of the choice, frequency, and notoriety of cases in which they intercede. That internal consistency helps give folklaw its credibility among the general public, increasing the public’s reliance on it.
Part of what influences folklaw is common sense, a shared understanding of what most people in a community consider obvious and acceptable in all of living. Common sense is not always right, including the part of common sense that purports to describe law. However, it is commonly agreed upon and enforced to a weaker degree but on a wider scale, that is, without as much power as the state is authorized to wield but much more popularly and frequently. The trust that is given to common sense extends to anything that is obviously built on common sense, and insofar as folklaw appears to be based on common sense it is even more trusted as law.
Despite internal consistency and commonsensical trust, folklaw is usually imperfect, partly because people are each unique. Mostly, they’re similar, but personal differences mark everyone. Languages differ; we have idiolects. Just as an idiolect is one individual’s unique understanding of the language they must use, such as in shadings of meanings, one individual’s unique understanding of the law they must live by, such as in shadings of obligations, contributes to folklaw. An imperfection in folklaw that is trivial for most people can be critical for one person, especially in centuries when death penalties were more readily ordered and carried out.
Borders, national and local, could be crossed by folklaw where they could not by proper promulgation. Visitation, commerce, migration, border patrol, and war by warriors up close were, and are, vehicles for interaction with and education of members of other communities that one community’s popular belief that some principle is a law would be good for other communities.
Men were more likely than women to lead in cross-border activities, and that’s especially likely in war and often the case in commerce and migration. Given that a right of husbands to beat wives was often seen by men as being in men’s interest, that particular type of principle was likelier to be adopted across borders into folklaw.
However folklaw is developed, it, in turn, appears to have influenced juries and thus the application of formally promulgated law. Because many husbands believed they had rights to beat their wives, then, insofar as juries had a role in judging cases, a role that could lean generally toward nullification, husbands on trial for beating their wives may have been less likely to be convicted by juries that included husbands, meaning most juries, especially if wives were exempt from jury service. That lowering of consequences from what properly promulgated law contemporaneously provided on point is generally due to how folklaw differs.
Evidence of Popular Views
Said in : “The sly remark of the commentator [“Blackstone”] is still too true, that the lower rank of people, who were always fond of the old common law, claim and exert their ancient privilege [that of allowing a husband, “for some misdemeanors, flagellis et fustibus acriter verberare uxorem, with whips and clubs sharply to strike a wife”].”45
Said a little later, in : “Sir Francis Buller is equally celebrated among both females and males, but not with equal admiration. While he is considered by the latter as one of the most learned of lawyers, he is stigmatised by the former as one of the most cruel of judges; since to him is attributed the obnoxious and ungentlemanly dictum that a husband may beat his wife, so that the stick with which he administers the castigation is not thicker than his thumb.”46
In : “[A]s a good example of how statements supposedly made by legal authorities could be adopted and adapted to suit popular needs, the idea of the rule of thumb stuck. Three cartoons depicting [“Sir Francis [(“‘Judge Thumb’”)]”] Buller, one by James Gillray, appeared in print during , and popular ballads repeated the thumb rule.”47
Legal Context of this Rule
General legal context governed how spouses should relate to each other.
Other Legal Restraints on Wives
Regarding a husband hitting with a switch, physical injury could lead to criminal prosecution of him, with her as a witness testifying against him even though she couldn’t testify against him on many other criminal matters, but an act that would be assault without physical injury was not an unlawful assault when it was against the wife. Although I do not have handy a reliable Latin-to-English legal dictionary, it appears that debitum carnis within a marriage was a duty of a wife to provide her husband with sexual intercourse with her when he wished and therefore that he could overcome all the resistance she might have put up. These were not all. “[P]lacing a check upon her movements” was allowed to her husband if it was “to restrain her from acts of unwarranted disobedience” and this was considered a less objectionable law than some other laws. These, however, besides granting rights to husbands, sometimes doubled as limits on the husband’s rights. This was as of , “but our older law allowed him not merely to confine, but even to chastise her.” How much older is not specified by the passage’s author.
Whether Admonition Allowed Any Beatings
On the other hand, in England or Great Britain sometime in –, some judges thought that unreasonable correction might give a wife a remedy against her husband and sometime in – “chastisement” became legally less acceptable, one judge and author in the mid-to-late s saying that what likely was reprimand was limited to admonition and house confinement and did not allow him to beat her, some authorities agreeing with him but some disagreeing, allowing beatings if not outrageous, even in the s.
Husbands’ Rights Limited, Superstition of Thumb, and Thumb Being That of Chastiser not of Judge
In , the rule of thumb remained as a “popular legal superstition”, using the husband’s thumb (not Judge Buller’s) as a basis of measurement. In the author’s words:
“Our view of the peculiarities of a wife’s position before the criminal law would not be complete without an allusion to the disabilities which that law imposes, as well as to those exemptions which it confers, upon her. It does not carry the doctrine of conjugal unity to the extent of ignoring all physical injuries that a husband may inflict upon his wife. For such acts he may be criminally liable; and the law even aids her in prosecuting him for them, by suspending the rule which usually renders her incompetent to appear as a witness against him in criminal proceedings. But acts which would amount to an assault if committed against a stranger, may be legally innocent when committed by a husband against a wife. A doctrine, whose inhumanity has often provoked hostile criticism from law reformers, and whose legal validity has lately been challenged by Sir James Stephen,* renders it lawful for a husband to exact the debitum carnis [perhaps meaning ‘debt of flesh’48] by force, in spite of his wife’s utmost resistance. Another, and less exceptionable, rule recognises his right to restrain her from acts of unwarranted disobedience, by placing a check upon her movements. Beyond this, modern English jurisprudence does not permit him to go; but our older law allowed him not merely to confine, but even to chastise her.† However, in James I.’s reign, in the case of Sir Thomas Seymor, who was in the habit of beating Lady Seymor, the judges expressed an opinion that a wife might have a remedy against her husband ‘for unreasonable correction.’‡ But even this limited right of chastisement began to fall into discredit in the days of Charles II., rich though they must have been in occasions for its salutary exercise. Sir Matthew Hale held that the moderate ‘castigatio,’ [meaning ‘correction,’49] which the old authorities had declared to be permissible, was not to be understood ‘of beating, but only of admonition, and confinement to the house in case of her extravagance;’ and his colleagues agreed with him.§ Yet there continued to be jurists, even in the following century, who still maintained a husband’s right to beat his wife, so long as he did not do it ‘outrageously.’‖ Blackstone, however, treats that doctrine as antiquated; though admitting that the lower classes of society, ‘who were always fond of the old common law,’ still clung, both in theory and practice, to their ancient privilege. To our own day, this right of reasonable chastisement still finds a place among popular legal superstitions, coupled with a plain practical rule, that the bounds of reasonableness are not transgressed unless the instrument of punishment exceed the thickness of the chastising husband’s thumb.
“. . . .
“The husband is thus liable to criminal proceedings for any injuries that he inflicts upon his wife; and even for an ordinary assault she may now obtain articles of the peace against him. . . .”50
A wife was not responsible directly to society for her behavior. This was the principle of feme covert. Under it, she could not be prosecuted for any of a range of crimes. Instead, her husband was held responsible to society for his wife’s behavior. Since, at about that time, divorce was largely illegal unless authorized by legislation for one couple and although annulments may have been available to some couples, he generally could not try to control her behavior by threatening to divorce her. What he was allowed to do was to apply so-called “moderate correction” to his wife. Arguably, the husband’s “moderate correction” had to be sufficient to protect society from her misdeed. What the law provided if the maximum of “moderate correction” failed to prevent future misdeeds is unknown to me. How much correction was “moderate” may not have been well defined in law. If “moderate correction” only authorized corrective speech, and if speech within a family was already generally authorized, and I suspect it was (criticizing one’s superiors could be forbidden while allowing most other kinds of speech), it hardly seems necessary to authorize corrective speech by law. Thus, it appears that “moderate correction” included something akin to the rule of thumb. An upper bound of moderateness likely forbade killing despite the purpose being the same and breaking knee caps or causing other long-lasting injury precluding economically-useful work. The upper limit may or may not have been worse than the switch as thick as a thumb, but at least that was somewhere within what was deemed “moderate”.
Wives did not have reciprocal permission to hit their husbands (or anyone else’s husbands) under this rule or, probably, any rule. This is touched on in a North Carolina case discussed herein, as to North Carolinian law.
Claiming a Beating is Nonviolent
Beatings as nonviolent is a contradiction, but maybe they didn’t think so in : “‘[T]he husband hath by law the power and dominion over the wife, and may beat her, but not in a violent or cruel manner.’”51
Wife-Beaters Finding Succor
Wife-beaters found succor in the rule of thumb, but shouldn’t have: “. . . . Many wife-beaters seemed to feel they had a right to abuse their wives, and indeed until legal authorities equivocated as to whether wife-beating constituted legitimate correction or criminal assault.67 The alleged ruling of Francis Buller, ‘Judge Thumb,’ that a man could beat his wife with a stick no bigger than his thumb was never a legal precedent, but it entered folklore. For instance, the pornographic Rambler’s Magazine cited it as a charter for wife-beaters. . . . .”52
Two Songs For Henpecked Husbands
A song supported using a stick thicker than a thumb, albeit “not much thicker”, and another song celebrated kicking her.53
“[T]he ‘humorous’ intention of popular literature allowed songs to both mock and condone wife-beating. By its title, the ambiguous ‘A Fool’s Advice to Henpeck’d Husbands,’ one song ridiculed men who could not control their wives. But it also advised them,
“When your wife for scolding finds pretences, oh
“Take the handle of a broom,
“Not much thicker than your thumb,
“And thwack her till you bring her to her senses, oh.”54
“Robert Burns’s ‘On the Henpecked Husband’:
“Were such the wife had fallen to my part,
“I’d break her spirit or I’d break her heart;
“I’d charm her with the magic of a switch,
“I’d kiss her maids and kick the perverse bitch.”55
Women by Nature Less than Men
A view on nature:
“The blood of a woman is not equal to the blood of a man.
“A woman is known as a sack, made to endure.”56
Judge Buller’s Own Thumb’s Size
The dimension of Judge Buller’s thumb was contemporaneously a subject of inquiry.
“A witty Countess is said to have sent the next day to require the measurement of his [“Judge Buller”’s] thumb, that she might know the precise extent of her husband’s right [to “lawfully beat his wife with a stick, if it were not thicker than his thumb”].”57
“. . . . It was a moot point whether the intended standard ws the thumb of the husband or that of the judge; and his lordship [Judge Buller] is said to have received numerous applications for the exact measurement of his thumb from married people of both sexes.”58
Whether he ever gave his thumb’s measurement or allowed anyone to measure it is unknown. I doubt it. He probably would have considered doing so as beneath his personal dignity and judicial station and likely would not legally have had to.
Opinions in Pornography
Rambler’s Magazine, which was pornographic, in , published some popular views.59
s United States Looking Back
This was likely a typical example of ca. s U.S. perception of law (probably as in England in the early 19th century): “Wife-beating was legal, so long as the stick was no thicker than the man’s thumb.”60
Naomi Wolf in Ms. in
And, in , by a feminist writer, there’s Radical Heterosexuality ... Or How to Love a Man and Save Your Feminist Soul, by Naomi Wolf, in Ms.: “The phrase ‘rule of thumb’ descends from English common law that said a man could legally beat his wife with a switch ‘no thicker than his thumb.’”61
Critics of Feminism in
Contra, a critic of feminism wrote of it in in Who Stole Feminism?: How Women Have Betrayed Women, by Christina Hoff Sommers.62
See also Rule of Thumb and the Folklaw of the Husband’s Stick, by Henry Ansgar Kelly.63
I don’t remember their specific positions. I read them long ago.
Rule’s Support Tepid
At the time of the rule being enunciated, public English support for the law was probably fading, if not yet to the point of legal change:
“1 the rise of the companionate marriage
“I. Theoretical Advice
“The many legal, political and educational changes that took place in the late seventeenth and eighteenth centuries were largely consequences of changes in ideas about the nature of marital relations. The increasing stress laid by the early seventeenth-century preachers on the need for companionship in marriage in the long run tended to undercut their own arguments in favour of the maintenance of strict wifely subjection and obedience. Once it was doubted that affection could and would naturally develop after marriage, decision-making power had to be transferred to the future spouses themselves, and more and more of them in the eighteenth century began to put the prospects of emotional satisfaction before the ambition for increased income or status. This in turn also had its effect in equalizing relationships between husband and wife. Thomas Gouge, in the edition of his popular marriage manual, stated bluntly that a husband may not beat his wife, and Perkins and Baxter agreed with him. It is perhaps significant that in an episode of violent marital discord in the early seventeenth century, Viscount Fenton’s wife Marjory was accused of tearing from the Bible a chapter which treated of the duties of women to their husbands.
“This shift in moral theology did not affect the theoretical position in common law that a husband may administer ‘moderate correction’, a doctrine reasserted in court by the Solicitor-General as late as the s. But in practice and by general consent this had fallen into disfavour, and it is hardly surprising that there was a great outcry in , when a pedantic judge tried to revive the ancient doctrine that it was lawful for a husband to beat a wife, provided that the stick were no thicker than his thumb (plate 19).1”64
A hint of views in Ireland is the possibility, weakly sourced, that a judge in Ireland ruled ca. for allowing a husband to use a small cane or switch to hit his wife and that the judge’s female partner “jilted” him in response, suggesting that she would likely have had community or family support for leaving a judge.65 Several similar versions of the story have been published.66
English Husbands’ vs. Wives’ Views
Reputedly, many husbands in England believed they possessed the right even if wives objected or legal writers disputed the law. We may assume that wives were less likely to agree to a folklaw belief against the wives having power while husbands were more likely to agree to the same folklaw belief favoring the husbands having power. Community influences and pressures voiced through neighborly women, including other wives and religious leaders, likely would lead to some wives justifying their being beaten as justified by the husbands’ responsibility to the community and believing that wives might have exceeded some community-defined husband-enforceable boundary even if the husbands had exceeded an authorization in the degree or form of chastisement. It’s unlikely that wives were uniformly against the folklaw even if husbands were not uniformly in favor of it.
Lacking Statistics of Occurrence
Given modern evidence that despite wife-battering being illegal it still goes on and that no date of inception of the lawfulness is recorded, we may assume when it was within the law it was going on.
Etymological Ambiguity Between Origin and Since
The label “rule of thumb” did not originate with such a case, as far as is known, but came from an unrelated context. While the point of etymological origin may be settled, and as a result people who seek to police how other people communicate in English (sometimes called the grammar police and generally being, linguistically, especially traditionalist) tend to believe that the phrase may be used without concern for this particular association, that does not follow.
Definitional associations developed after origins can alter common meanings. The similar argument that African Americans and immigrant Blacks in the U.S. may be referred to and addressed by the N-word by whites because its etymological origins are clean, a disputable but published point,67 fails for essentially the same reason: while the N-word may be a pronunciational simplification of a word, negro, that once, perhaps, denoted no negativity,68 the N-word was spread as a poisonous insult and the insult has become part of its baggage, except in the rare case where a particular context explains its use otherwise, such as a person saying why they’re saying it.
Other Modern Analyses Mixed with Views on Prevalence of Violence Against Women
In articles that I’ve read about whether this rule exists, authors who report that it is not validly part of the law also tend to suggest that violence against wives is exaggerated, while those who see the problem of violence as large-scale also tend to attribute the phrase to legal history, which I did not find directly on point. However, most of those articles are from recent decades and I don’t know how beliefs would sort out today.
Pronouncement as Law, Legal Procedure, and Possibility of Legal Error
Whether it was a Rule
Calling this a rule may have come about later than Judge Buller’s statement, as, at least in the U.S., expressions in the form of the rule of (x) are common in modern U.S. case law, along with the (x) test. Perhaps both forms are traceable to 18th-century or earlier English common case law and treatises. I have not investigated that. If rule of was prevalent in legal discussions then, it is plausible that he might have said “a man may hit his wife with a switch no thicker than his thumb” and that listeners relayed that as his “rule of thumb” without his ever using the word rule in that context.
Whether Judge Needed to Clarify Legality
Perhaps the judge wasn’t very good at or interested in correcting the record, perhaps because the judge thought the record clear enough, e.g., if it wasn’t law then perhaps the judge thought the record clear that it wasn’t law if only by its absence from formal reports and thus no correction would be warranted. The judge could have been right as to law and still wrong as to history. If, for example, to make the rule of thumb into binding precedent beyond one case required publication of it in a judicial opinion appearing in a law book and he had never published anything of the sort, and had only said it during a trial (one source more than a two centuries later reports it as having been said “at a trial”69) as an analogy of interest in clarifying a different point (e.g., such as what violence masters can use against servants or kings can use against subjects) or in an informal conference where he was heard by someone who did not treat it as minor or confidential, then it would not be precedent for a lawyer or a client but could be a fact for a historian informing the same public the lawyer counsels, a fact important for public knowledge of law.
Denying that any correction was needed or that it exceeded lawful moderateness, as fact, might be especially difficult for a female to prove or even to present. “[F]emale testimony was more likely to be omitted from the Proceedings [of the Old Bailey, Central Criminal Court, of London, –.]”70 The “Proceedings”, in this context, refer specifically to the publication series and not just to to generic proceedings in the courtroom/s. In other words, testimony delivered was more likely to be lost to history if the testimony was a female’s. While the testimony might influence the bench in a case where delivered, not publishing it would have had the effect of reducing its influence for subsequent cases and for public policy development.
Legal Effect of Legal Commentary
Even if leading commentators were in error, absent contemporary contrary evidence the error doesn’t matter, because they were still authority, thus the law was likely defined and enforced more or less consistently with the leading commentators’ teachings. Consider Blackstone. He was probably the most-often cited legal writer of the time and place. Suppose he had gotten it wrong about husbands’ right to correct their wives. I don’t think so, but, if he had, likely so would have many judges, attorneys, and families, because his authority would rarely have been checked (except by students on limited questions). That he had the view in at least two editions makes it less likely he thought it wrong as a matter of law (whether he thought it wise is unknown and irrelevant). The Commentaries’ prominence as a treatise of the time suggests high reliance on its content by attorneys, judges, and, indirectly, the public. Even if he only meant “moderate correction” in nonviolent senses, he doesn’t say so, and widespread evidence of use of violent means, both against wives and in relationships he treated as analogous such as against servants and students, suggests that the phrase was widely understood as including “moderate” violence, including subinjurious, marking but not preventing the wife from working, or not murderous. That Blackstone didn’t change his text in relevant part for some editions suggests that he didn’t hear about a disagreement from sourcing he considered authoritative.
Amendment of Rule
Statutes against assault probably had the legal effect of implicitly repealing the common-law rule of thumb, even if not explicity doing so.
Death From Thumb-Thick Stick
That hitting with a stick the thickness of a thumb could result in death is reported in several 19th-century London criminal cases that were not about husbands hitting wives as moderate correction, but about other people, presumably with other reasons or none.
Biography of the Judge
“Sir Francis [Buller] was b. [born] , d. [died Tuesday71] , having fixed upon the Friday subsequent to his death, as the day on which he should resign his seat on the Bench; m. [married] , at the early age of 17, Susannah, dau. [daughter] and sole heir of Francis Yarde, Esq., of Ottery St. Mary. Appointed a Welsh Judge, , and a Puisne Judge of the King’s Bench, May 6, , which in he exchanged for the Common Pleas. Created a Baronet .”72 His date of death is a day or two later according to another but less contemporary source, infra. The King’s Bench was the Court of King’s Bench; he began his service in that court in and served there until he died. His move from being Puisne Judge to the Common Pleas was probably either a promotion or a lateral move and not a demotion.
“[Judge Buller] had been called to the bar in , and in had become, at the age of thirty-two, the youngest judge in England.”73
“Judge [Buller] (–/). . . . He was not a popular judge. To many of his contemporaries he appeared impatient, arrogant and inflexible in his opinions and sentiments. In criminal cases he was sometimes considered prejudiced, severe and even cruel. The dictum was attributed to him that a husband may beat his wife so long as the stick he uses is no thicker than his thumb . . . . The remark is probably apocryphal, but the fact that it was attributed to him may reflect contemporary views about him. . . .”74 His date of death is a day or two day earlier in another and more contemporary source, supra.
“[Judge Buller’s] unfortunate assertion, at a trial in , that any husband could thrash his wife with impunity provided that the stick was no thicker than his thumb, had caused some ridicule and inspired James Gillray’s amusing caricature Judge Thumb. Judge Buller had also been accused of helping members of his family line their pockets from public funds; this scandal had prevented him from being appointed chief justice, but as a solace he had been made a baronet on .”75
“[Judge] Buller, though he has been disappointed in his application to be Chief Justice, will accept of nothing else, and he is to remain in that Court; he has done almost all the business for many months. . . .”76
Notorious Trial on Different Issue
“[Judge] Buller. . . . presided at the first Monster trial, at the Old Bailey.”77
Proper Style with Name
Whether to refer to Francis Buller as Judge Buller or Justice Buller is not entirely clear to me, especially if it depends on the current stage of his career as a presiding officer in court, but the prevailing style among sources of most authority seems to favor styling him as Judge, so I am, too.
Open Issues Unlikely Ever to be Resolved
Thumb’s Precise Thickness
Whether the thumb in question was that of any husband or particularly Judge Buller’s is unclear, especially in the earliest sources most likely to be based on reports from living contemporaries of Judge Buller’s. The thickness of either of Judge Buller’s thumbs seems unrecorded and adjudication occurred in too many places, too far, and too often to rely on parties finding Judge Buller so they could measure his thumbs, so the relevant thumb likelier was one of whichever husband was in any given marriage.
The thickness of the thumb has to be a biological approximation. Whether the left or right thumb, the choice of axis of measurement perpendicular to the length, the point distant from the tip for the measurement, and whether and how to accommodate pathologies of the thumb were not addressed and these present to us degrees of precision not elemental to the existence of the rule.
Authoritativeness of Old Publications
Determining the degree of authority of writings disseminated centuries ago, whether by a prominent legal commentator or another author, is somewhat challenging. While the top texts can probably be identified, others may have been little cited and are now lost to history. That loss means we have less knowledge of what lawyers discussed back then.
Research that Still Can be Done
Further research is welcome. Based on what I know so far and is stated above, the conclusion is sound, but doubters can perhaps find enough to contradict it.
An article with additional sourcing is Rule of Thumb, by Sharon Fenick ( or later).78
Two other Web pages, under British Women’s Emancipation since the Renaissance, are A Husband’s Right to Beat his Wife With a Stick no Thicker than his Thumb and Wife Beating: Cuttings, referencing old books and newspapers.79
Legal dictionaries for translating from Latin and old French should be found. If there were not legal dictionaries, general dictionaries may help.
English-language dictionaries of the time and earlier, for the U.K. and the U.S., and other linguistic evidence should be searched for chastise, moderate physical chastisement, moderate chastisement, reasonable chastisement, and related terminology, to see to what extent chastising could be physical even when chastise is syntactically unmodified and how violently it could be physical.
A book of possible value, albeit with a long title, is The Laws Respecting Women: As They Regard Their Natural Rights Or Their Connections and Conduct in which Their Interests and Duties as Daughters, Wards, Heiresses, Spinsters, Sisters, Wives, Widows, Mothers, Legatees, Executrixes, &c. are Obligations of Parent and Child and the Condition of Minors. The Whole Laid Down According to the Principles of the Common and Statute Law...and the Substance of the Trial of Elizabeth, Duchess Dowager of Kingston on an Indictment for Bigamy Before the House of Peers (J. Johnson, ).80
William L. Prosser may have written on this in one of his books. He was a leading authority on the U.S. law of torts.
Among documents to try to find is P.R.O. Star Chamber 8/158/18. The citation is erroneous, but which part of the citation is erroneous is unknown. It’s cited herein and in a ca. book.81 The book author’s files were discarded, according to a member of his family, Elizabeth C. Stone Zimansky, herself an antiquities professor in the Anthropology department at Stony Brook University when I contacted her (“I am afraid that my father had a grand clearout of his files shortly before he died, so I have only a few papers which might be of use if anyone wanted to write a biographical piece about him. [¶] I wish I could be of more help.”).82
Research should also include unpublished contemporary correspondence, primarily in the United Kingdom, including Judge Buller’s. Any surviving letters are likely to be in recipients’ files, not in his, because copying for one’s own records probably had not become routine yet. Perhaps he replied to reported inquiries about the thickness of his own thumb. Likely recipients of his replies would have been people whom he especially trusted, as he wouldn’t want to worry about being misinterpreted by someone who had criticised him without understanding his point of view, i.e., without understanding the law of England as he understood it, since a misunderstanding could weaken his authority as a judge for cases in general.
Judge Buller’s records were given to a library at Lincoln’s Inn (http://www.lincolnsinnlibrary.org.uk/).83 They were provided by John Lucius Dampier, Esq., a judge’s son, as part of a larger collection of several judges’ papers. A description, under Dampier Manuscripts at Lincoln’s Inn, by Edmund Heward, is at <https://www.tandfonline.com/doi/abs/10.1080/01440368808530944?journalCode=flgh20>, as accessed .
Old unreported legal judgments in the U.K. could reveal yet more, one way or another. Perhaps they were written and are in files, just never published. Perhaps some were by Judge Buller.
At <http://www.oldbaileyonline.org/>, some cases on point might be found. Altogether, nearly 200,000 cases spanning 240 years are collected and searchable. A search just for the word “thumb” yielded 932 cases; just for “switch”, 67 cases; for “moderate correction” (not necessarily a phrase), 17.84
Whether a rule is part of English common law may also be a function of how the courts of England were organized. Was there a court of equal authority which had contrarily ruled? Was its authority lateral to that of Judge Buller’s court such that he could have so ruled without being in legal contradiction, because only a superior court could have ruled Judge Buller wrong and none had yet? I don’t know what jurisdiction each court, or his court, exercised at the time.
Procedural issues are likely relevant, formal and informal, pro or con, and should be considered for the period.
There’s a slim chance of finding relevant material in the London Metropolitan Archives, formerly the Greater London Records Office.
Also slim is the chance of finding material in the U.K. repository (http://www.nationalarchives.gov.uk/catalogue/).
Questions similar to those here on English law apply to Scottish, Welsh, and Irish law. On Scottish law, look for A Treatise on the Law of Scotland: As Applicable to the Personal and Domestic Relations: Comprising Husband and Wife, Parent and Child, Guardian and Ward, Master and Servant [, and Master and Apprentice: With an Appendix of Forms], by Patrick Fraser, – (Edinburgh: T. & T. Clark, ) (2 vols., with appx. of forms) (bracketed insertion in subtitle may be part of original subtitle or may not); A Treatise on Various Branches of the Criminal Law of Scotland, by John Burnett (Edinburgh: George Ramsay and Co., ); Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, to the Present, by Lindsay Farmer (Cambridge: Cambridge Univ. Press, ); Law and Opinion in Scotland During the Seventeenth Century, by J.D. Ford (Oxford: Hart, ); New Perspectives in Scottish Legal History, eds. Albert Kiralfy & Hector L. MacQueen (London: Frank Cass, ); Common Law and Feudal Society in Medieval Scotland, by Hector L. MacQueen (Edinburgh: Edinburgh Univ. Press); and Violence, Custom and Law: The Anglo-Scottish Border Lands in the Later Middle Ages, by Cynthia J. Neville (Edinburgh: Edinburgh Univ. Press, ).
For Wales, check The Welsh Law of Women, eds., Dafydd Jenkins and Morfydd E. Owen, (n.p.: U. of Wales Press, ); and Ancient Laws and Institutes of Wales, ed. Aneurin Owen (London, or ante & probably ) (need v. II & any after). For the 10th century, one of three statutes applied depending on location, before Roman or English rule. All three were established by the Welsh king with local advice and drafting and the Pope’s approval before the Roman invasion and subsequent English rule. The Roman Catholic Church approved the Welsh laws explicitly.85
For Ireland, before and after division, similar sources may exist.
Whether other nations, especially those that were formerly colonies of the U.K., had the same or similar laws is unknown, except as discussed herein. Examples to examine may be Canada and Caribbean nations and the U.K.’s territories of the time.
For the U.S., electronic research tools will make searching texts of old (and new) case law and other sources faster. While a search for “thumb” will produce many false positives, it may produce many true positives. Then-current editions of widely-relied-upon treatises may be helpful.
I had a note that in wife-beating was approved in the U.S. by the North Carolina Superior Court, but I don’t have a source or details, and that claim should be checked.
One writer mentions a case from Mississippi (URL as accessed ). Perhaps it can be found.
Popular critiques, especially in England circa , or afterwards may have been published in periodicals, including obscure ones that haven’t been searched for this topic. Anywhere in the world where a similar ruling was issued may have had popular discourse, as well.
Physical anthropology for centuries ago should be checked. The distinction in thickness between a finger and a thumb, when my thumbs are hardly thicker than my fingers, leads me to wonder whether 2–3 centuries ago thumbs were thicker, perhaps due to manual labor among men being more common and, on average, more arduous, thus allowing sticks for hitting to be even thicker than we would assume today.
I should treat this as a work in progress, but I’m unlikely to have the time to finish even the easier parts of the remaining research. I look forward to someone else developing this further, not only for its linguistic value but to refresh us on our legal history.
The phrase had uses other than in law before the judge spoke. Prior use in other contexts and delay in use in this context do not contradict that this legal meaning has attached to the phrase. Etymologists usually cannot be certain of the first meaning of a word, only the earliest known of, and that’s subject to a new discovery of an earlier meaning. Reliance on earliest meanings ignores that a word can acquire through use a patina well after its origin and that people may reasonably be influenced by it, even that they may reasonably be influenced more by a word’s later development than by its origin. That’s because a society grows and develops in many nonlinguistic ways, and language serves society. Many of today’s major insults began existence as not at all insulting, but that doesn’t make them any less fighting words today, since understanding them with their modern meanings is linguistically and socially appropriate and normal. That kind of linguistic influence has occurred often in popular English. On that basis, objecting to rule of thumb in its lightweight or gratuitous sense is valid.
The law was, as far as we know, not called “rule of thumb” until nearly two centuries later (or a few decades later if we count a precursor to the phrase). Retroactive application of a name to a concept is linguistically valid, thus so is retroactive application of a phrase to a meaning, and retroactivity does not change that the meaning given herein is now a meaning for rule of thumb.
The British and Irish nations and former English colonies might have been the only ones calling any law permitting wife-beating a rule of thumb, but I don’t think wives felt any better about who had that corner.
The linguistic implication, that the existence of the rule justifies shunning the expression as a lightweight synonym for ‘yardstick’ or ‘approximate measure’ because it treats antiwoman violence too flippantly, is valid. Because it is widely used in the lightweight sense without reference to a personal meaning, it may be too much to assume that such users generally are being misogynist, but raising consciousness is not a bad thing. The best counterargument is that misogyny and sexism have been so much and so long part of human culture that virtually all of natural language is damaged by them, so that it is impossible to write all but the shortest fragments without chauvinism. Excludng it would prevent us from using natural language enough to meet our needs for most of living, and therefore taking offense is unaffordable, and in the face of a constant stream of newer knowledge eventually the underpinning of offense will be forgotten by most people and thus older forms of chauvinism, however invidious, become harder to detect and less jarring. This sort of conflict arises with many issues, linguistic and other, and the best solution is a balancing act: what is most offensive and soluble is objected to and steps are taken in amelioration and to educate, both on the offense and on why it would be offensive, in this case by reduction of casual use of the phrase, even if the legal point was never uttered, and redressing that battery of wives is still common.
Historiography seems to support a finding that Sir Francis Buller, a Judge of the Court of King’s Bench, in , did suggest a rule of thumb in support of a right of husbands to beat their wives. His personal opinion may not have had any legal effect when uttered, but it would likely have been persuasive as an indicator of how he could have been expected to rule if relevant facts were presented to him for judgment. Given the antiviolence debate of the times among people whose words were reflected in contemporary literature, this sort of rule, if enunciated, would have encouraged those men not against domestic violence to bring more violence against wives.
Even if Judge Buller said nothing of the sort, violence by husbands against their wives was clearly approved by various courts in at least two nations and over many centuries. Investigators who deny a rule of thumb in this context generally don’t address judicial sanctioning of general intramarital violence, the courts usually ruling in husbands’ favor, reducing the thumb-size issue to not much more than a quibble. The modern denials of a rule of thumb are pursued apparently in order to attack feminism.
Today’s problem of husbands’ violence against women is huge. It was huge then and long before. It’s not adequately redressed and has not been most of the time in question in either nation. In modern times in the U.S., the law forbids the practice; it just isn’t enforced enough. That the law would ever have explicitly authorized the practice is shocking.
The judge may have been right about the law, and may not have been characterizing the law as good; and the British were not alone in having that kind of law. However, any society with such a law was wrong to have it. Women objected back then and should have been agreed with back then. By delaying listening, we lost time. We’re still making up the time.