Joanne McEwan delves into legal responses to wife beating in eighteenth-century England, and its resonance with contemporary discourses in the 16 Days of Activism Against Gender Violence series.
Between 1731 and 1735, Thomasin Wheeler appeared before Hackney Justice of the Peace Henry Norris on five different occasions to complain about her husband John’s cruelty, abuse or neglect. On 12 June 1732, for example, an entry in his notebook reads:
Thomasin Wheeler complains agt: her husband John Wheeler for assaulting her & beating her in an unmercifull manner & threatning her life & neglecting to provide for the Support of his wife & fam 2 Children.
In response to this and another complaint by Thomasin, Henry Norris remanded John Wheeler to gaol. This suggests both that he took Thomasin’s grievances seriously and that John Wheeler was unable to produce anyone who would ‘vouch for him’ and act as a surety.
Spousal violence at this time was not recognised as a separate offence under English law, and was prosecuted – if at all – as either a petty dispute or a common assault. This meant that the more usual course of action for a magistrate, as historians such as Drew Gray have suggested, was to mediate between the parties and settle the matter summarily, or else bind the aggressor over to appear at the next Quarter Sessions on a misdemeanor assault charge. In most cases, then, the couple were sent home together – either having agreed to drop the matter or with an order to appear at a later court sitting. And when violent husbands were prosecuted, they often pleaded guilty and paid a 12d. fine – the standard punishment for assault – before returning, again, to the marital household.
Two underlying issues contributed to the problems that magistrates faced in dealing with wife beating. The first was that even when magistrates recognised the danger of sending a couple home together, there was little else they could do. The law did not provide them with an effective way to deal with the situation, because it viewed assault as a one-off altercation rather than an ongoing pattern of violence.
The second was that violent acts committed by husbands upon wives were not altogether illegal. Contemporary models of governance were based on the notion that the husband, as the head of a household, was responsible for the conduct of all the people living within his household. In order to ensure their orderly conduct, he was afforded the right of ‘moderate correction’. This is not to say that wife beating was condoned – the correction doled out by husbands was only ever supposed to be ‘moderate’ – but the dividing line between permissible chastisement and excessive force was problematically ambiguous.
Many of the men charged with excessively beating their wives did not deny inflicting the beating, but argued instead that it fell within the bounds of lawful correction. Because of this ambiguity, there was often a reluctance on the part of neighbours, family members and legal officials to intervene in spousal matters unless it was clear that husbands were overstepping the bounds of their authority and had acting particularly violently. It also placed an expectation on wives to be obedient, and behave in a manner that did not warrant violent correction.
When Henry Norris committed John Wheeler to New Prison in 1732, he did so because John Wheeler could not produce sureties who would take responsibility for making sure he appeared at the following Quarter Sessions. Had he been able to do so, he would have been sent home instead. Norris committed Wheeler to the Clerkenwell Bridewell in May 1735, because Thomasin had again sworn on oath that he had beaten her barbarously and threatened her life, and he again could not produce sureties.
On both of these occasions, Thomasin Wheeler turned up before the Quarter Sessions met and asked that her husband be discharged. She also appeared before the Hackney Petty Sessions in August 1732 because John had deserted her, stating that she had been forced to rely on poor relief. Thomasin’s struggle to support her children in John’s absence likely explains why she kept springing him from gaol – irrespective of how much safer she was with him locked up, she simply could not afford it.
As a married woman Thomasin was in a no-win situation. As The Laws Respecting Women as They Regard Their Natural Rights (1777) explains, wives had few legal rights:
By Marriage the very being or legal existence of a woman is suspended; or at least it is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs every thing.
They could not sue or take out contracts in their own name, and had no rights over property or the custody of their children. Divorce rather than legal separation was not possible for the majority of the population until 1857, so if women left abusive situations they could not remarry, take children against husbands’ wishes or be sure of keeping possession of any income they managed to earn.
Thankfully, the legal position of wives has improved a lot since the eighteenth century. Women can own property and earn a living in their own right, marriages can be severed by divorce, spousal violence is recognised as a specific type of abuse, victims have the right to maintenance and to retain custody of their children and – government attempts to cut funding to female refuges and legal aid services notwithstanding – resources exist to help the victims of violence.
Too often, though, we resort to asking the question ‘why did she/he stay?’ when we hear about abusive relationships. This places the onus of responsibility on the victim in the same way that asking abused wives in the eighteenth century what they did to incite their husband’s violence did.
A better question, which has more potential for furthering our understanding of the emotional, economic and social factors at play and contributing to change, is surely ‘what stops them from leaving?’. Let’s keep working on those things.
The Patricia Giles Centre is a feminist organisation based in Perth that provides services including accommodation, counselling and advocacy to women and children affected by domestic violence. In the lead-up to the holiday season the Centre is fundraising by selling Christmas cards; please consider making a purchase or otherwise donating to this worthy cause.
Joanne McEwan is a Lecturer in History at The University of Western Australia and a Research Assistant with the ARC Centre of Excellence for the History of Emotions. Her research interests focus on crime, gender and family history in Britain, c.1650–1850. Joanne’s publications include Accommodating poverty: The housing and living arrangements of the English poor, c. 1600-1850, which she edited with Pamela Sharpe.
Follow Joanne on Twitter @Jo_McEwan_.