Origins of the Rule of Thumb
Historically, the physical punishment of wives has been encouraged by most cultures. The legal and social mandates for appropriate punishment are attributed to the patriarchal basis of most civilizations. In patriarchal societies, males were the designated leaders of society and the home. Wives and children were relegated to inferior social and legal positions and in earlier times were regarded in many cultures as chattel or the personal property of the husband. The subjugation of wives to their husbands is evidenced throughout history and across civilizations. In order to maintain the patriarchal basis of socialization, husbands in most cultures were duty bound to mete out appropriate punishment for wives and children who committed transgressions. In many cultures, the failure of husbands to properly control their wives and children resulted in severe social and legal stigma or sanction.
According to O’Faolain and Martines (1973), in the first formal law of marriage, Romulus, the founder of Rome, required married women to ‘‘conform themselves entirely to the temper of their husbands and the husbands to rule their wives as necessary and inseparable possessions.’’ A frequently cited example of the duty of husbands to discipline their wives is that of a Christian scholar, who, in the late fifteenth century, authored a treatise titled the Rules of Marriage. One rule required husbands with errant wives to ‘‘scold her sharply, bully and terrify her. And if this doesn’t work, . . . take up a stick and beat her soundly, for it is better to punish the body and correct the soul than to damage the soul and spare the body’’ (Davidson 1977). Under the provisions of the Napoleonic Code, women were regarded as minors and thus possessed none of the legal or social privileges which males enjoyed (Pagelow 1984). The Napoleonic Code also authorized husbands to beat their wives for acts of disobedience.
British Common Law
Married women fared no better under British common law. In his Commentaries on the Laws of England, Sir William Blackstone (1865) offered a testament to the legal status of married woman. There, Blackstone stated that ‘‘[b]y marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything.’’ As such, British common law provided no independent legal status for married women. Rather, at the time of the marriage, wives forfeited their independent legal existence. Thus, what did not exist could not be protected. Forfeiture under the convenient ‘‘single legal entity’’ theory justified other practices, such as the marital rape exemption.
The single legal entity theory provided the justification for the right of chastisement or the right of husbands to discipline their wives. Essentially, because the husband was to answer for the deeds and misdeeds of his wife, he also possessed the right to correct and chastise her with the use of corporal punishment. In Commentaries, Blackstone explains that a husband ‘‘could give his wife moderate correction.’’ However, Blackstone emphasized that correction or chastisement must be moderate. In his attempt to define the proper and reasonable bounds of the privilege, Blackstone utilized the now-familiar rule of thumb. In his codification of the common law, Blackstone suggested that husbands could beat their wives with sticks which were no thicker than the husband’s thumb.
However, while Blackstone is credited with the rule of thumb, his writings reveal serious doubts regarding its propriety, and he suggested that at least for members of the upper classes, wives ‘‘should have security of the peace against her husband.’’ Blackstone noted, however, that the ‘‘lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege.’’ Moreover, there appears to have been general agreement that husbands could not inflict permanent injury upon their wives. In extreme cases, wives could seek legal protection by petitioning a court for a writ of supplicavit. This writ bears a striking similarity to the modern-day order of protection or restraining order. If issued, the writ of supplicavit required a husband to post a bond or otherwise guarantee that he would not harm his wife in excess of that allowed by the right of chastisement.
The Rule of Thumb and American Law
The discovery and colonization of America by western Europeans brought about new opportunities to develop law. However, the most significant influences upon the development of American jurisprudence were Christianity and British common law—both of which strictly adhered to the view that husbands should serve as master of the household. As such, in many colonies the common law privilege of chastisement and rule of thumb were enacted into law and again institutionalized. Yet, despite the existence of the privilege, doubts soon began to emerge among legal scholars and jurists regarding the authority of a husband to discipline his wife. For example, Francis Wharton (1868) acknowledged the existence of the privilege at common law, yet stated that the ‘‘tendency of criminal courts in the present day is to regard the marital relation as no defence to battery’’ (§ 830).
Wharton also discussed, with some degree of trepidation, the now-infamous court opinion of Bradley v. State, 1 Miss. (1 Walker) 156 (1824). Bradley is often cited as the first published appellate court opinion in America in which the privilege of chastisement and the rule of thumb were officially endorsed by an American court. Bradley is the first in a trilogy of Mississippi Supreme Court opinions which address the right of chastisement in that state and is often cited for its tacit approval of the right of chastisement. The trilogy is particularly illustrative of the nineteenth-century debate regarding the ancient privilege of chastisement in American jurisprudence.
Moreover, there is a significant amount of misconception about the actual holding of the state high court in the Bradley decision, which should finally be clarified. Following a jury trial, Curtis Bradley was convicted of assault and battery against his wife. On appeal, Bradley challenged his conviction on the grounds that the trial judge erroneously denied a jury instruction which would have informed the jury that Bradley should be acquitted if the victim of the assault was his wife. The trial court refused to instruct the jury as requested and instead instructed the jury that a husband could legally commit an assault and battery upon the body of his wife. Thus, the sole issue before the state supreme court was whether a husband could, for purposes of the criminal law, commit an assault and battery upon his wife. Following review of Blackstone’s Commentaries and guidelines for moderate chastisement, the supreme court affirmed the conviction. Apparently, the injuries in the Bradley case were sufficiently severe to overcome any argument that the same were inflicted for purposes of moderate chastisement.
However, while the court affirmed the conviction, it failed to abrogate the common law right of chastisement. Rather, it held that a husband could raise a defense based upon this right to demonstrate that injuries to his wife were the result of moderate chastisement. The court specifically acknowledged the judicial abhorrence of the common law rule, yet concluded that ‘‘every principle of public policy and expediency’’ required the rule to ‘‘prevent the deplorable spectacle of the exhibition of similar cases in our courts of justice.’’ Thus, at the end of the day the Mississippi high court retained the privilege of chastisement to avoid the investigation of ‘‘family broils and dissentions before the tribunals of this country.’’ The rule, as retained by the court, was as follows: ‘‘To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned.’’
Over a half a century later, the Mississippi Supreme Court was again faced with the privilege of chastisement in Harris v. State, 71 Miss. 462 (1893). Although the court reversed the conviction of the husband on the grounds of insufficient evidence, the Harris court, unlike the Bradley court, expressly abrogated the common law rule. In Harris, the court held that the ‘‘blind adherence shown in that case [Bradley] to revolting precedent has long been utterly repudiated in the administration of criminal law in state courts.’’ The final installment in the chastisement trilogy occurred in Gross v. State, 135 Miss. 624 (1924). There, the Mississippi Supreme Court finally put to rest any doubts that remained following the Harris decision. In upholding the conviction of a husband for the assault and battery of his wife, the court concluded that there was no privilege in favor of the husband as against the wife in the common law offense of assault and battery.
While the Mississippi cases are illustrative, they are not isolated in their treatment of the right of chastisement in American jurisprudence. Rather, early court opinions throughout the southeastern and mid-Atlantic states endorsed the rule of thumb and the right of chastisement. A review of these early opinions reveals strong sentiment regarding the preservation of the sanctity and privacy of the home, coupled with patriarchal notions of discipline. Later opinions, however, repudiated the rule and eliminated any official endorsement of the common law. In fact, by the late 1870s most appellate courts had officially eliminated any remnants of the common law privilege. Shortly thereafter, the elimination of the common law privilege was followed by the widespread amendment of divorce laws to include cruelty as a ground for divorce. As a result, wives now enjoyed greater legal protection in criminal and civil courts for violent acts by their husbands.
While the nineteenth century brought promising changes, the end of violence within the bonds of matrimony has yet to occur. Official efforts which produce meaningful results have been gradual and are attributable mainly to the tireless efforts of advocates who continue to demand that attention be paid to this enduring issue. Yet, despite the tremendous progress which has been made, statistics continue to demonstrate alarming rates of violence among intimate partners. According to the Bureau of Justice Statistics (BJS), in 2002 there were 494,570 rapes and physical and sexual assaults against women by intimate partners. Moreover, BJS found that violence among intimate partners was primarily a crime against women, with those between the ages of sixteen and twenty-four experiencing the highest per capita rates. Homicide rates consistently indicate that women are most likely to be murdered by an intimate partner. More unsettling, however, is the realization that official statistics do not reveal the full extent of violence within the home.
Thus, while laws have undergone significant modification to reflect a more enlightened view of the role and status of women in the context of marriage, the reaction of the legal system to violence within the marriage has been slow and in many situations continues to exhibit a tolerance for violence among intimate partners. In many cases, the system itself seems to cling to the philosophy that violence within the home is a ‘‘family matter’’ rather than an act which demands official intervention. As a result of his research for The Violent Home, Gelles (1974) concluded that ‘‘we are still convinced that in most cases a marriage license also functions as a hitting license.’’ Such an assertion is confirmed by modern research which examines the perspective of abusers. Research continues to identify a sense of ownership and authority as justification for the infliction of physical pain and suffering upon intimate partners. According to Dobash and Dobash (1978/2005), ‘‘Male authority is still, regardless of the so-called liberation of women, revered and protected by social institutions and reinforced and perpetuated through the socialization of children.’’ The socialized belief that males have a property interest in their partners and therefore may use physical injury as a means to maintain their domestic authority has yet to meet its unofficial end.
- Blackstone, Sir William. Commentaries on the Laws of England, 1865.
- Bureau of Justice Statistics. http://www.bjs.gov/
- Davidson, Terry. ‘‘Wife Beating: A Recurring Phenomenon throughout History.’’ In Battered Women: A Psychosociological Study of Domestic Violence, edited by Maria Roy. New York: Van Nostrand Reinhold, 1977.
- Dobash, Rebecca Emerson, and Russell P. Dobash. ‘‘Wives: The Appropriate Victims of Marital Violence.’’ In Violence against Women: Classic Papers, edited by Raquel Kennedy Bergen, Jeffrey L. Edleson, and Claire M. Renzetti. New York: Pearson, 1978/2005.
- Gelles, Richard J. The Violent Home: A Study of Physical Aggressions between Husbands and Wives. Beverly Hills, CA: Sage, 1974.
- O’Faolain, Julia, and Lauco Martines. Not in God’s Image. Glasgow: Collins, 1974.
- Pagelow, Mildred D. Family Violence. New York: Praeger, 1984.
- Schelong, Katherine. ‘‘Domestic Violence and the State: Responses to and Rationales for Spousal Battering, Marital Rape and Stalking.’’ Marquette Law Review 78 (1994): 79.
- Schick, Lori. ‘‘Breaking the Rule of Thumb and Opening the Curtains—Can the Violence against Women Act Survive Constitutional Scrutiny?’’ University of Toledo Law Review 28 (1997): 887.
- Siegel, Reva B. ‘‘‘The Rule of Love’: Wife Beating as Prerogative.’’ Yale Law Journal 105 (1996): 2117.
- Wharton, Francis. A Treatise on the Criminal Law of the United States. Philadelphia: Kay and Brother, 1868.
- Bradley v. State, 1 Miss. (1 Walker) 156 (1824)
- Gross v. State, 135 Miss. 624 (1924).
- Harris v. State, 71 Miss. 462 (1893).