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North Carolina - Violence women
Jack Straton earned a Bachelor of Fine Arts degree in photography from the University of Oregon in 1977, worked as a professional jazz drummer for three years, and then returned to the U of O in the 1980s to earn a doctorate in quantum theory. Both as a volunteer and professional diversity trainer over the past 18 years, he has presented several hundred workshops on ending sexual assault and racism. Jack founded Men Against Rape groups in Eugene, Oregon, Washington, D.C., and Manhattan, Kansas. He has published extensively in professional journals from his research in Quantum Scattering Theory, Gender Equity, and Diversity Training Methods. He has served as co-chair of the National Organization for Men Against Sexism (NOMAS) and, as coordinator of the NOMAS Task Group on Child Custody Issues, is recognized as one of the leading writers and speakers in the country with expertise on ethical and public policy issues related to the overlap between child custody, child abuse, and woman abuse.
Henry Ansgar Kelly has recently written a comprehensive and convincing rebuttal of the claim that the phrase rule of thumb derives from "British Common Law . . . [which] authorized a husband to chastise his wife with . . . a rod not thicker than his thumb." Christina Hoff Sommers has characterized this claim as an example of advocates for abused women stealing feminism from other women. I wish to provide here another characterization, that reasonable people doing a moderate amount of historical research would find plenty of evidence to support the claim, however false it is upon thorough research.
One of the standard criteria for truth is that based on authority. Many within the movement to mens violence are not legally trained, so it is a reasonable expectation that we should be able to rely on the authority of judges to provide us with the truth of a matter, particularly those more temporally proximate to the question at hand than we are. And there are indeed four judges and other legal authorities spanning a time from 1897 back to 1782 who declare this origin for rule of thumb.
The 1874 case State v. Oliver (North Carolina Reports, Vol. 70, Sec. 60, p. 44) states: "We assume that the old doctrine that a husband had the right to whip his wife, provided that he used a switch no larger than his thumb, is not the law in North Carolina."
In the later case cited by Stedman, State v. Oliver, Oliver had been found guilty of assault and battery and fined $10 for having given five licks to his wife 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 mans little finger, the other not so large." The verdict was upheld on appeal, with Judge Settle declaring:
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.
In 1868 in North Carolina in the case State v. Rhodes Judge Reade says:
It 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 Honors 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.
Reade refers again to this history in 1870 in State v. Mabrey in order to repudiate a lower courts interpretation that State v. Rhodes supports this right. William Draper Lewis nevertheless says in his 1897 edition of Blackstone: "[T]he Supreme Court, of North Carolina, declared in State v. Rhodes . . . that a husband has a right to whip his wife with a stick as large as his finger but not larger than his thumb. This decision was in recognition of a barbarous custom which modern authorities condemn."
Kelly says, "We may take it from these two cases that there was a belief in North Carolina that husbands had a right to use a small switch on their wives. In Alabama, it seems that there was a different standard current in some circles. . . . [W]e can safely assume that there was . . . a belief about the wedding ring . . . being the measure for a rod that could by custom be used against her." Justice Peters, speaking for the state supreme court, says in Fulgham v. State (1871),
Since then, however, learning, with its humanizing influences, has made great progress, and morals and religion have made some progress with it. Therefore, a rod which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjection to the husband. The husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husbands slave. And the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law.
Earlier in the 19th Century is the 1824 case in Mississippi, Bradley v. State. Here Powhattan Ellis, speaking for the supreme court, addressed the question of whether a husband could be convicted of assault and battery upon his wife:
[A]n unlimited licence of this kind cannot be sanctioned, either upon principles of law or humanity. It is true, according to the old law, the husband might give his wife moderate correction, because he is answerable for her misbehaviour; hence it was thought reasonable, to intr[u]st him, with a power, necessary to restrain the indiscretions of one, for whose conduct he was to be made responsible. Strange, 478, 875; 1 H.P.C. 130. Sir William Blackstone says, during the reign of Charles the first, this power was much doubted.Notwithstanding the lower orders of people still claimed and exercised it as an inherent privilege, which could not be abandoned, without entrenching upon their rightful authority, known and acknowledged from the earliest periods of the common law, down to the present day. I believe it was in a case before Mr. Justice Raymond, when the same doctrine was recognised, with proper limitations and restrictions, well suited to the condition and feelings of those, who might think proper to use a whip or rattan, no bigger than my thumb, in order to inforce the salutary restraints of domestic discipline. I think his lordship might have narrowed down the rule in such a manner, as to restrain the exercise of the right, within the compass of great moderation, without producing a destruction of the principle itself. If the defendant now before us, could shew from the record in this case, he confined himself within reasonable bounds, when he thought proper to chastise his wife, we would deliberate long before an affirmance of the judgment.
Finally, we have Sir Francis Buller, a puisne judge of the kings bench is described by his biographer, William Prideaux Courtney thus:
Though his clearness of statement and his quickness in seizing the points of the contending counsel were universally recognized, his conduct on the judicial bench has often formed the subject of severe criticism. He 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 27 November 1782.
This caricature, reproduced in Lawrence Stones history of divorce in England, plate 19, as well as in Kelly It is titled Judge Thumb , and shows a husband beating his wife, who cries, "Help! Murder for God sake, Murder!" The husband says: "Murder, hay? Its Law you Bitch! its not bigger than my Thumb!" A judge is in the foreground, saying "Who wants a cure for a nasty Wife? Heres your nice Family Amusement for Winter Evenings! Who buys here?" He is holding two bundles of sticks that each end in a carved thumb.
An earlier cartoon on the same subject, appeared in The Rambler on February 1, 1782, with the caption Mr. Justice Thumb in the Act of Flagellation. It shows Buller with a stick raised over a woman, who cowers away from him. Buller says, "Tis no bigger than my Thumb," while she says, "Would I had known of this before Marriage!" On the floor, a partly unrolled document reads, "A Husband may Chastize his Wife with a Stick the Size of his thumb. Coke." Kelly notes that this "dictum obviously came not from Coke but from the caricaturists imagination."
Although this is the earliest reference to Rule of Thumb in the context of relations between "husband and wife," the context of "domestic chastisement" with a rod goes back to Roman Emperor Justinian I . In his One Hundred and Seventeenth New Constitution published in 529 C.E., he gave a husband freedom to "beat his wife with a whip or rod" for divorcable offenses: withholding information from him about a plot against the government, adultery, plotting against his life, remaining away from his house without his consent, attending banquets or bathing with strangers against his wishes, or attending circuses, theaters, or other public exhibitions without his knowledge or against his wishes. This law also prohibited a woman from divorcing her abuser if he beat her for other reasons, although it did make the husband pay her restitution in this case:
If a man should beat his wife with a whip or rod, without having been induced to do so for one of the reasons which We have stated to be sufficient, where the woman is at fault, to cause dissolution of the marriage, We do not wish it to be dissolved on this account; but the husband who has been convicted of having, without such a reason, struck his wife with a whip or rod shall give her by way of compensation for an injury of this kind (even during the existence of the marriage) a sum equal in value to the amount of the antenuptial donation to be taken out of his other property."
Given a 1300 year span of references to the right of a husband to administer domestic chastisement with a rod, one could reasonably expect that a meticulous search of the Reports to the Kings Bench in England would yield this theme repeated in legal jargon, and occasionally explicitly stated in lay terms as a rule of thumb. To the extent I have searched, I have found no such explicit earlier reference, nor has Kelly.
As a scientist, I am loathe to accept a proof by exhaustion that there is none, but unless such is found I must likewise conclude that the earlier references to rule of thumb in other contexts acquit it of nefarious origins. The earliest citation comes from Sir William Hopes The Compleat Fencing-Master, second edition, 1692, page 157: "What he doth, he doth by rule of thumb, and not by art" That is not, however, equivalent to saying that those who have proclaimed this phrases nefarious origins have been attempting to mislead other women or the public in general. Activists in the effort to end domestic violence are no less prone to accept authority as a criterion for truth than anyone else in our society, and if we have erred in only going back to 1782 for our authority, we have done better than most advocates on any issue.