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395.: THE LAW OF ASSAULT MORNING CHRONICLE, 31 MAY, 1850, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXV - Newspaper Writings December 1847 - July 1873 Part IV [1847]

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The Collected Works of John Stuart Mill, XXV - Newspaper Writings December 1847 - July 1873 Part IV, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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395.

THE LAW OF ASSAULT

MORNING CHRONICLE, 31 MAY, 1850, P. 4

This article is the thirteenth by Harriet Taylor and Mill on injustice and cruelty (for background, see No. 303). An unheaded third leader, it is described in Mill’s bibliography as “A leading article in the Morning Chronicle of 31st May 1850 (except the second sentence) on the state of the law of assault. Very little of this article was mine.”

(MacMinn, p. 75.)

we have on former occasions pointed out the defective state of the law and of its administration with respect to crimes of personal violence, and we have especially commented on the absence of protection for women and young persons, and for all those who are under the power of others, against domestic brutality. The case on which the Court of Queen’s Bench pronounced judgment yesterday,1 exceptional as it is in some material respects—more particularly as regards the apparent absence of habitual or deliberate cruelty on the part of the defendant—recalls our attention to this very important subject; and we proceed to offer some further remarks on the general question of the social and legal wrongs affecting the most helpless portion of the community.

It is evident to all who take any pains to read the indications of the feelings of the populace, that they are impressed with the belief of their having a right to inflict almost any amount of corporal violence upon their wife or their children. That any one should claim to interfere with this supposed right, causes them unaffected surprise. Is it not their wife or child? Are they not entitled to do as they will with their own?2 These phrases are not, to their apprehension, metaphorical. The shoes on their feet, or the cudgel in their hand—the horse or ass that carries their burdens, and that dies a lingering death under their cruelties—the wife and children—all are “theirs,” and all in the same sense. They have the same right, in their own opinion, over their human as over their inanimate property. Doubtless they are aware that they are not at liberty to inflict death; but when they actually do so, and find that they are to be tried for murder, they seem to receive the information with a kind of stolid astonishment; and it may well appear to them anomalous that a creature is given up to their power to be kicked or beaten, at the peril of life, as often as temper or intoxication may prompt—and yet that, on some one day when they have done no worse than they had done hundreds of times before, they are told that they are liable to be hanged. Not that they ever are hanged for these enormities, even though death ensue. If they are tried at all (which in general they are not), the jury are not convinced that they intended death, and they consequently escape with a verdict of manslaughter. This interpretation of the law had the sanction of Mr. Baron Alderson, in the recent case of Alexander Moir.3 If it be a correct interpretation, the law is, in this matter, grossly inconsistent; for many acts, venial in comparison with Moir’s, are held by law to be murder when death ensues as an unintended consequence. “If one intends,” says Blackstone, “to do another felony, and undesignedly kills a man, this is murder.” If any one kills an officer of justice, or even a private person, who is endeavouring to suppress an affray or to apprehend a felon, it is murder. “It were endless,” continues Blackstone, “to go through all the cases of homicide which have been adjudged either expressly or impliedly malicious,” and which are, therefore, legally regarded as murder.4 According to Mr. Baron Alderson, a wretch like Moir is less criminal in the eye of the law than a person who, intending only to take the property of another, undesignedly causes death. But surely a man who, though he does not intend to kill, perpetrates such ruffian-like maltreatment that death is a natural consequence, commits an offence that is at least equal in depravity to most cases of murder.

Some good would be done, if, even in this extreme case, it were felt that there is no immunity for domestic ruffianism, and that the law has as much severity for the man who kills those whom he is peculiarly bound to protect, as it has for the one whose victim had no claims on him save those inherent in humanity. But, though even this would be some improvement, much more is required. It would be but a feeble restraint on habitual brutality to make the offender responsible for an extreme consequence which may or may not happen, and which may or may not be capable of being traced to its real cause. The arm of the law should be made to reach the tyranny of bodily strength in every instance in which it comes to light. The atrocious cases now summarily disposed of by magistrates with a forty-shilling fine or two months’ imprisonment, should be tried with judicial solemnity in the courts which try other grave offences, and should be visited with a just gradation of penalties, rising to the highest secondary punishment. Whatever additional legislation is required for this purpose should be provided. Legislation is also needed to disabuse the people of false notions of their legal rights. At present it is the universal belief of the labouring class, that the law permits them to beat their wives—and the wives themselves share the general error. We assume that it is an error. We take for granted, that the old saw, which most people have heard—if it ever was law in the savage times of our ancestors—has long been obsolete.5 If there be any doubt of this, there is the more reason why there should, without delay, be an authoritative termination to the doubt. There should be a declaratory Act, distinctly setting forth that it is not lawful for a man to strike his wife, any more than to strike his brother or his father. This would be merely doing what was done by the first settlers of New England. The seventeenth century was not remarkable for the mildness of its manners, nor were the Puritans by any means moderate in their notions of family discipline and authority. Their standard of social morals was taken from the Old Testament and the Patriarchs, not from Christ and the Sermon on the Mount.6 Yet the fundamental regulations of the first Puritan colonists in New England, as we read them in the latest published history of the United States, formally abrogated that provision, or reputed provision, of the common law of England, which permitted men to beat their wives.7 We hope that it is not too much to expect from the English Legislature now, the same amount of justice and humanity which was shown by its cast-out children two hundred years ago. It seems almost inconceivable that the smallest blow from a man to a man should be by law a criminal offence, and yet that it should not be—or should not be known to be—unlawful for a man to strike a woman.

There is yet another feature in the law and in its administration, connected with this subject, which, we would fain hope, need only be pointed out to be irrevocably condemned by public opinion. At present, no amount of brutal violence, nor even of deliberate cruelty, although judicially proved, has the legal effect of depriving the criminal of the power which he has misused. A man is convicted and imprisoned for the horrible maltreatment of his wife—and yet, when his imprisonment expires, the victim is again delivered into his hands, to suffer everything which brutality infuriated by revenge, or malignity made more cautious by detection, may inflict. Any words which might be used to characterize such a state of the law could hardly strengthen the impression which ought to be made by the simple knowledge of it. Apart from all that is revolting in the fact itself, and viewing the question in the coldest manner as one of mere legislative expediency, it is impossible to expect that these domestic atrocities should ever attain judicial publicity except by accident, when such are the consequences which the sufferers have to expect from complaining. Accordingly, these cases are hardly ever made known by the injured parties themselves; and if they happen to be brought before a magistrate or a criminal court by some one who casually becomes cognizant of them, the charge continually breaks down from the impossibility of inducing the trembling victim to speak the truth with sufficient plainness to procure a conviction, or to adhere to it when it has been spoken in the first instance.

It is a dictate of common sense—recognised and acted upon by the laws of almost all countries—that legal rights may be either suspended or forfeited for a certain amount of judicially proved misuse. If this is a reasonable and proper provision with regard to legal rights generally, it is so, above all, with respect to the powers which any one is allowed to exercise over the persons of human beings. The law confers every such power on the presumption (however fallacious) that it will be exerted for the good of those over whom it is given, and it cannot be justified except on that presumption. That there should be a slavery in civilized life, from which the most savage maltreatment, judicially proved, cannot liberate the victim, would be scarcely credible, if it were not notoriously true; and such a state of things cannot, we hope, be much longer tolerated, unless existing laws are deemed more sacred than the primary ends for which all laws profess to exist.

This evil might be removed without interfering with existing institutions on any other point, or raising discussion on any more general question. All that would be requisite is a short Act of Parliament, providing that judicial conviction of gross maltreatment should free the victim from the obligation of living with the oppressor, and from all compulsory subjection to his power—leaving him under the same legal obligation as before of affording the sufferer the means of support, if the circumstances of the case require it. We earnestly recommend this subject to the attention of those philanthropists who desire to signalize themselves by an eminently useful contribution to the work of mitigating the sufferings and raising the moral condition of the poor and the dependent.

[1 ]The case of Edward Kenealy; see No. 396.

[2 ]An ironical reference to the views of Henry Clinton, Duke of Newcastle, adapted from the New Testament, for which see No. 65, n3.

[3 ]See No. 393, n4. The judge was Edward Hall Alderson (1787-1857).

[4 ]Blackstone, Commentaries, Vol. IV, p. 201.

[5 ]Mill may be referring to the commonly held belief that it was legal for a man to beat his wife with a stick no thicker than his thumb.

[6 ]See Matthew, 5-8; and Luke, 6:20-49.

[7 ]Art. 79 of The Body of Liberties of the Massachusetts Colony in New England (1641) forbade such chastisement; the matter is outlined in Richard Hildreth (1807-65), The History of the United States of America from the Discovery of the Continent to the Organization of Government under the Federal Constitution, 1497-1789, 3 vols. (New York: Harper, 1849), Vol. I, p. 276.