Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform — John Shaqi
Marriage, As It Was, As It Is, and As It Should Be: A Plea for ReformBesant, Annie
Philosophy
Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform
Besant, Annie
Marriage -- Great Britain; Marriage law -- Great Britain
Married women rank among the "persons in subjection to the power of
others;" they thus come among those who in many cases are not criminally
liable; "infants under the age of discretion," persons who are _non
compotes mentis_ (not of sound mind), and persons acting under coercion,
are not criminally liable for their misdeeds. A married woman is
presumed to act under her husband's coercion, unless the contrary
be proved, and she may thus escape punishment for her wrongdoings:
"Constraint of a superior is sometimes allowed as an excuse for criminal
misconduct, by reason of the matrimonial subjection of the wife to her
husband; but neither a son, nor a servant is excused for the commission
of any crime by the command or coercion of the parent or master. Thus,
if a woman commit theft, or burglary, by the coercion of her husband, or
even in his company, which the law _primâ facie_ construes a coercion,
she is dispunishable, being considered to have acted by compulsion, and
not of her own will" ("Comm, on the Laws of England," Broom and Hadley,
vol. iv., p. 27). "A _feme covert_ is so much favoured in respect of
that power and authority which her husband has over her, that she
shall not suffer any punishment for committing a bare theft, or even a
burglary, by the coercion of her husband, or in his company, which the
law construes a coercion" (Russell "On Crimes," vol. i., p. 139). "Where
the wife is to be considered merely as the servant of the husband,
she will not be answerable for the consequences of his breach of duty,
however fatal, though she may be privy to his conduct. C. Squire and his
wife were indicted for the murder of a boy;" he had been cruelly
treated by both, and died "from debility and want of proper food and
nourishment;" "Lawrence, J., directed the jury, that as the wife was the
servant of the husband, it was not her duty to provide the apprentice
with sufficient food and nourishment, and that she was not guilty of
any breach of duty in neglecting to do so; though, if the husband had
allowed her sufficient food for the apprentice, and she had wilfully
withholden it from him, then she would have been guilty. But that here
the fact was otherwise; and therefore, though _in foro conscientiæ_ the
wife was equally guilty with the husband, yet in point of law she could
not be said to be guilty of not providing the apprentice with sufficient
food and nourishment" (Ibid., pp. 144, 145). It is hard to see what
advantage society gains by this curious fashion of reckoning married
women as children or lunatics. Some advantages, however, flow to a
criminal husband: a wife is not punishable for concealing her husband
from justice, knowing that he has committed felony; a husband may not
conceal his wife under analogous circumstances: "So strict is the law
where a felony is actually complete, in order to do effectual justice,
that the nearest relations are not suffered to aid or receive one
another.
Public-domain text, read in full here on John Shaqi.
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