Unce Sam’s Harem III by Thomas Fleming • September 24, 2008 • Printer-friendly

I began this discussion with a promise to elucidate the question of Ms. Palin’s candidacy.  In general, I have been pointing out that by nature, tradition, and revelation, the sexes have been assigned quite different functions.  It has been alleged, without much foundation, that the Catholic Church has abandoned this tradition to champion the “right” of a woman to a career, but whatever “rights” women may hold in this respect are fulfilled, in Catholic thought, by a religious vocation.   I do want to make it clear that I am writing about the natural family and the Christian tradition, not about everyday reality today that may well make it inconvenient or undesirable for women not to pursue a profession or go to work.  God help a poor woman who has to depend on the fidelity, diligence, and maturity of an American male under the age of 75!   In some cases, a woman who has no profession has made herself helpless and deprived herself of the second-best social life that is often the only one available.  As I explained earlier, I do not like automobiles, computers, telephones, television, and air travel, but to live without these things I could not be a writer or editor and could never escape from Rockford, either in thought or in deed.

Nonetheless, women are not forced to choose politics as a profession–if it can be called that–nor are we forced by circumstances to vote for them.  But, even if we were so inclined, we might make a distinction between unmarried women without children and wives and mothers whose first responsibility is to their children.  I have had women friends who, when they had children, cut down their hours as teachers, physicians, lawyers, in order to spend the proper amount of time with the children, and, as their children grew up and left the house, slowly resumed their careers.  By the way, these adjustments naturally cost women a good deal in seniority, and more than all of the disparity between the salaries of men and those of women is accounted for by the interruptions caused by children and changes in a husband’s job.  I say “more than all” because Affirmative Action laws see to it that women are overcompensated.  But, the schedule of a mayor, governor, or President is inflexible, requiring more than a full 40 hours.  Our local mayor was widely condemned when he took a good deal of time off to deal with the birth of a child with serious disabilities. One other consideration is the fact that a Christian wife is supposed to obey her husband.  In the past, there have been problems when sons, bound to obey their fathers, were elected to office, but how much more serious is the case of a wife.

Let us then look at the traditional and natural structure of husband-wife relations.

The Patriarchy

Feminists, looking back at the traditional sex roles of 19th and 20th century Europe and the Americas, have often written sneeringly of “the patriarchy,” and anti-feminists  have responded by explicitly defending patriarchy or by discussing male dominance in terms of the rigid hierarchy of baboons.   But human social life has little in common with that of the boorish baboon, and “patriarchy,” as the word suggests,  refers properly not to the virtually universal tendency toward male dominance but to societies in which the fathers and senior males rule over the family and tribal structure with sovereign authority.

Our image of patriarchy inevitably comes from Old Testament patriarchs like Abraham and Jacob, but in every known society, men occupy most of the highest niches of power and prestige.  Masculine authority depends in part on the superior strength of the male sex but also on masculine hormones that predispose men to take part in competitive and violent behavior.  But, given the creativity of the human race, the type and extent of that power varies greatly, from the easily familiarity of pygmy husbands and wives to the rigidity of Chinese men who bound their wives feet to make them more dependent.  Nothing could be more foolish—or more dangerous–than an attempt to reestablish the family practices of nomadic shepherds or to create a theonomy based on Old Testament law.

It is dangerous to speak to broadly, but, in general, sexual distinctions are more marked in developed civilizations than in primitive societies.  At the same time, the civilizations of ancient Egypt, Greece, and Rome–and of Medieval Europe—developed traditions and rules that required respect for mothers and wives, sisters and daughters.  Men controlled the government, and, while they may have ruled (theoretically) their children as absolute monarchs, their authority over wives was, as Aristotle says, political rather than monarchical in the sense that it was limited by law, custom, and respect.

In the Anglo-American tradition of Common Law, the status of wives was defined by the principle of coverture, which meant that the wife’s legal identity was merged with that of her husband.    When Hamlet is taken to task for addressing his stepfather as “mother,” he replies: “Father and mother is man and wife, man and wife is one flesh, and so, my mother.” (IV.3. 54-55)  As Blackstone observes: “By marriage, the husband and wife are one person in law…the very legal being or legal existence of the woman is suspended during marriage, or at least is incorporated or consolidated.”    Justice Hugo Black’s oft-quoted statement that “the old common-law fiction that the husband and wife are one…has worked out in reality to mean…the one is the husband” is a smart-aleckism –typical of modern jurists who refuse to look at an issue in any light but that provided by current fashion, and it rests upon the assumption–the most degrading imaginable–that women have allowed themselves to be enslaved, throughout human history, by men.  Patriarchal institutions are a two-way street, and if men less experienced than Bumble supposed they had the power to control the lives of their womenfolk, they were, in so thinking, obliged to support and protect them.  One is free to dislike the terms of this division of labor but not to misrepresent it as one-sided tyranny.

Even in the old Common Law tradition, man and wife were not so merged that women had no legal identity.  The wife’s position was not that of a possession but of her husband’s ward.  She could, for example, maintain property rights, though they were limited by her husband’s authority.   The implications of coverture and related notions, however, were broad, extending to questions of property, inheritance, divorce, and even criminal prosecutions.  Husbands and wives were not permitted to give evidence in court for or against one another.  Since a criminal conspiracy requires two parties, a married couple could not be convicted of conspiring together.   As one person, in the eyes of the law and of the church, husband and wife could not sue each other in tort.  This principle was invoked as late as 1953 in an English case where a master was held accountable for his servant’s negligence that resulted in injury to the servant’s wife.   Within a decade legal reformers were eliminating this last vestige of coverture in British law.

The husband, at least in law, was the presumed master of the house and, consequently, could be held liable for his wife’s torts, including those to which she had been liable before marriage, and for misdemeanors and certain felonies that were performed in his presence and could thus be presumed to be done under his orders.  In cases like that of Mr. Bumble, the husband’s complicity did not have to be proved, and he, rather than the wife, was subject to punishment.   Until about 1890 an American wife injured in a vehicular accident could not recover damages from a third party if her husband’s driving contributed to the accident.  In some rulings, coverture was cited, but in others, when the principle of coverture had been more or less abandoned, it was argued that in marriage a wife had put herself under her husband’s protection.   One way of looking at this is to say that some part of the older Christian understanding of marriage as a merger of identities survived the decay of coverture.

Coverture was concerned primarily with property rights.  Under English law a single woman could make contracts, sue in her own name, and manage her own property; however, once she married, such rights were merged into her husband’s legal identity.  The wife’s dowry was put under the control of her husband who, although he could not alienate the property, did not have to account for the rents or income.  On the other hand, “the husband is bound to provide his wife with necessaries by law, as much as himself; and if he contracts debts for them, he is obliged to pay them…..If the wife be indebted before marriage, the husband is bound afterwards to pay the debt.”

A wife was entitled to inherit a third of her husband’s property, and this guarantee restricted the husband’s  right to alienate this property, unless the wife was willing to sign away her dower rights.  (In South Carolina my own wife had to go through this puzzling ceremony on the two occasions we sold property.)   These are, of course, broad generalizations, since Anglo-American law not only changed over time but also adapted itself to the folkways and attitudes of the different colonies in the New World.

In a successful marriage between responsible persons, such an arrangement, so far from being burdensome, had many advantages, not the least of which was that it discouraged the couple from quarreling about financial decisions.  In a traditional society, even a reckless husband could be checked either by the resentment of his wife’s male relatives or by community disapproval, and a woman’s dowry was a concrete manifestation of the honor paid her by her family.  This attitude is not restricted to Christian nations.  In ancient Athens, for example, male authority was balanced by a sense of family honor that included the dignity of a married daughter. In Menander’s play (4th century B.C.) Epitrepontes (the arbitrators), the point of the comedy is a father’s resentment of the way hs son-in-law is squandering money, and he tells his daughter that the husband of a rich wife should consider himself her slave.

Coverture is e a dead letter in American law–as dead as the Christian understanding of marriage–but those of us who claim to be “conservative” and “Christian” must treat with skepticism any argument that would justify women in seeking and exercising political power.  There are extraordinary circumstances, inevitably.  Imagine a frontier town in which no man is willing to preach the Gospel or keep the town’s records.  We do not live in such a society, and there is no point in pretending that we do.  There is no lack of male incompents and scoundrels from which to choose the rogues who will oppress and exploit us.  The least we can do is to monopolize the shame of politics.

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