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rule of thumb




Newsgroups: alt.folklore.urban
From: sfenick@quads.uchicago.edu (sharon fenick)
Subject: Re: Questions for the UL Mavens -
Date: Fri, 9 Feb 1996 08:41:43 GMT

Will Wheeler <WJW2@psuvm.psu.edu> wrote: >[...] bradham@panix.com (Bo Bradham) says:
>>Chris Peek <cpeek@shore.intercom.net> wrote:
>>>
>>>2: Term "rule of thumb" claimed by some to originate from preferred
>>>width of rod used to beat difficult wives. Others say not. What's the
>>>scoop?
>[...]
>>Whether there was ever a law dealing with wife-beating and the
>>permissible stick size seems to be an open question. The closest
>>we have seen to citations in this newsgroup was the two or three
>>court opinions in which a judge used the phrase "rule of thumb"
>>and referred to some "old English law" without giving chapter and
>>verse where that law might be found.
>
>>There are legal scholars who read this newsfroup and I hope one
>>of them will do some research on this.
>
>Sharon "until we get money for you" Fenick has more than once claimed
>to have exhaustively researched this subject. Maybe she could remove
>her nose from them law-type books long enough to type it up for us.

More than once claimed, but never in public. However, here goes: the non-definitive "rule of thumb" posting, as promised, with some loose ends, some editorial commentary, some very-tangential literary references that I like, dammit, and thanks to Angus, Will, Jason, the microfilm guy at the Reg, the University of Chicago Law School and especially one cool professor, and Ted:

--
"The extraordinary jumble of rules of thumb"

The OED2 defines "rule of thumb" thusly: "A method or procedure derived entirely from practice or experience, without any basis in scientific knowledge; a roughly practical method. Also, a particular stated rule that is based on practice or experience." Another part of the definition: "Of persons: Working only by methods derived from practice." Maddy would be happy to see this extension of the phrase: "Hence rule-of-'thumbite, a person who works by rule of thumb."

OED 2 first finds an instance of the phrase"rule of thumb" in 1692.

Some have claimed that this phrase has its origins in a British common law rule which, supposedly, allowed husbands to beat their wives with a stick no thicker than their thumb. The British common law is part of a legal tradition which was a continuously evolving set of rules, set out in decisions on cases brought in English common law courts. It forms a large part of the basis of modern English and American law, as well as influencing the law in other, less important places.

Letting alone the thumb-sticks, it's not clear to me when there was a clear common law tradition allowing men to beat their wives with impugnity and when that disappeared. It certainly was discussed in some cases. Justice Buller (remember the name) in his _An Introduction to the Law Relative to Trials at Nisi Prius_ (my copy dated 1806) writes (p. 21) that "In assault and battery, the defendant gave in evidence his marriage with the plaintiff..." citing the case of _Westbook v. Strutville_ (1 Strange 79). The defendant husband in the case tried to introduce his marriage to the plaintiff into evidence to counter an assault charge. The wife then disclosed a prior marriage and so proved her marriage to the defendant was void, and so she won the case.

But does this prove anything? Would the defendant have prevailed at common law were it not for the previous marriage? In 1608, a Dr. G. apparently gave a speech at Oxford on the proposition "that it was lawfull for husbands to beate their wives" which prompted W.H. to write a response entitled "An Apologie For Women", challenging that assertion. So it is apparent that even then a debate on the subject was viable.

Blackstone, in his enormously influential _Commentaries on the Laws of England_ (~1765), writes that "The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licited et rationabiliter pertinet [other than what is reasonably necessary to the discipline and correction of the wife]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemeanors, flagellis et fustibus acriter verbare uxorem [to wound his wife severely with whips and fists]; for others, only modicam castigationem adhibere [to apply modest corrective punishment]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted, and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege, and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour."

So, where do thumbs come into all this? Was part of the common law a rule that men could beat their wives with a stick no thicker than their thumbs? Probably not.

Three cases have been found in American courts which mention this rule.

A case in Mississippi, _Bradley v. The State_ (1 Miss. (1 Walker) 156 (1824)) includes this sentence: "I believe it was in a case before Mr. Justice Raymond, where the same doctrine was recognized, 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 enforce the salutary restraints of domestic discipline." The judge in Bradley seems to think this acceptable in order to prevent "family broils and dissensions" from being "investigated before the tribunals of the country".

"Mr. Justice Raymond" probably refers to Lord Robert Raymond, who was a judge on the King's Bench (a common law court) in England from 1724-1733. I looked through the reports from this period, but found nothing on the subject. Raymond was best known for a judgement which held that publishing obscene books was a common law offence.

In 1868, _State v. A.B. Rhodes_ (61 N.C. 453) the defendant was charged with assaulting his wife. (At 454:) "Upon the evidence submitted to them, the jury returned the following special verdict: 'We find that the defendant struck Elizabeth Rhodes, his wife, three licks, with a switch about the size of his fingers (but not as large as a man's thumb) without any provocation except some words uttered by her and not recollected by the witness.' His Honor was of the opinion that the defendant had a right to whip his wife with a switch no larger than his thumb [and found the defendant not guilty]."

The judgement was appealed (the appeal is the case here reported) and allowed to stand, though the judge says (at 459) "It is not 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 Honor's charge. [...] The standard is the effect produced, and not the manner of producing it, or the instrument used."

In 1873, _State v. Richard Oliver_ (70 N.C. 60) the judge states that "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."

So what is all this "old doctrine" stuff? Was there really an old doctrine about thumbs and wives in England? Well, there was a rather respected judge named Francis Buller who was said to have held the thumbstick opinion, and who got a lot of ribbing about it. Buller was a judge in England from 1778 to 1800. In 1782 it appears that Buller said something somewhere public about the thumb-stick-wife thing, because it instantly stuck to him, as evidenced by a Nov. 27th caricature by James Gillray entitled "Judge Thumb: or, Patent Sticks for Family Correction: warranted Lawful!" which depicts a judge in robes with bundles of long thin sticks, saying "Who wants a cure for a nasty Wife? Here's your nice Family Amusement for Winter Evenings... Who buys here?" and a wife ("Help! Murder for God sake, Murder!") being beaten by her husband ("Murder, hey? It's Law you Bitch! It's not bigger than my Thumb!").

By 1794 a pamphlet containing "Answer to Cursory Strictures" was printed, with the credit "said to be written by Judge Thumb" (Goldsmiths' microfilm, item 16111). This answer is credited to Buller, apparently the appelation had stuck. Foss, in his _Biographical Dictionary of the Judges of England_ (1870) says that Buller is "equally celebrated among both females and males, but not with equal admiration. While he is considered by the latter as one of the most learned of lawyers, he is stigmatised by the former as one of the most cruel of judges, since him is attributed the obnoxious and ungentlemanly dictum that a husband may beat his wife, so that the stick with which he administers the castigation is not thicker than his thumb. It may perhaps restore him to the ladies' good graces to be told that, though the story was generally believed [...] yet, after a searching investigation by the most able critics and antiquaries, no substantial evidence has been found that he ever expressed so ungallant an opinion."

A contemporaneous biography (1790, _Strictures on the Lives and Characters of the Most Eminent Lawyers of the Present Day: Including, Among Other Celebrated Names, Those of the Lord Chancellor and the Twelve Judges_) confirms that serious biographers at the time believed the story, a footnote on Buller's "inflexibility of sentiment and opinion" refers the reader to "His memorable opinion, of the RIGHT of the husband over the wife, to the exercise of the thumb-stick."

So it was Buller, right? Well, perhaps not. William Townsend, in _The Lives of Twelve Eminent Judges of the Last and of the Present Century_ (1846), writes in his biography of Buller, in discussing the thumb-stick that "A similar ungallant doctrine had been mooted in the preceding century by a Dr. Marmaduke Coghill, judge of the Prerogative Court for Ireland, and with still more detriment to himself. Having been called upon to decide the grounds of a divorce sued for by a wife against her husband, who had given her a good beating, the venerable civilian delivered a solemn opinion that with such a switch as the one he held in his hand, moderate chastisement was within the husband's matrimonial privilege. This legal maxim occasioned so much offense or alarm to a lady to whom the Doctor had been for some time paying his addresses with a fair prospect of success, that she peremptorily dismissed the assertor of so ungallant a doctrine. Doctor Coghill, as may be guessed from his opinions, died unmarried." A footnote refers us to Swift. Looking through Swift, we find in _Journal to Stella_, Letter XXVI (1711) that "Dilly had also a letter from Tom Ashe, full of Irish news; that your Lady Lyndon is dead, and I know not what besides of Dr. Coghill losing his drab, etc."

OED 2 provides an uncomplimentary definition for "drab", and, not surprisingly, that definition is connected to an Irish word, similarly uncomplimentary.

The Irish Prerogative Court's decisions are not recorded in any place accessible to me.

You can visit the Drumcondra Parish Church in Ireland built in memory of poor bachelor Coghill by his sister. Send me a postcard.

Yeah, yeah, I know, you're saying, "yeah, but, you can't find any of these people actually saying these things, and heck, what does all this have to do with the rule of thumb"?

Ok, fine, since you want to know, I looked up the phrase "rule of thumb" in a whole bunch of etymological dictionaries. They gave no definitive answer. Many of the entries pointed to brewing or to carpentry. But, hah! Luckily, I had just read through all of Swift, and so I remembered this passage, which was lots of fun and sent me scurrying off for a length of string:

(From Part 1, Ch VI:) "The seamstresses took my measure as I lay on the ground, one standing at my neck, and another at my mid-leg, with a strong cord extended, that each held by the end, while the third measured the length of the cored with a rule an inch long. Then they measured my right thumb, and desired no more; for by a mathematical computation, that twice round the thumb is once round the writs, and so on to the neck and the waist..."

In any case, none of my old references to the thumb-stick rule refer to it as a "rule of thumb". Christina Hoff Sommers, in her book, _Who Stole Feminism_ (1994, ISBN: 0671-79424-8) traces the earliest use of the two together to a 1976 NOW report by Del Martin whom she quotes as writing: "For instance the common-law doctrine had been modified to allow the husband 'the right to whip his wife, provided that he used a switch no bigger than his thumb' -- a rule of thumb, so to speak." Sommers quotes a number of sources to show that this was probably misinterpreted as implying a connection between the rule and the phrase. How widely it was misinterpreted is a matter for debate. Sommers appears to think it was widely believed, it certainly did turn up in a number of news reports, mostly quoting people working in battered women's shelters. Sommers also makes a number of assertions about what the common law did hold and about Blackstone, some correct and some incorrect or distorted.

The above was researched by me with my own time and blood and guts, and was written up from my various overdue books and photocopies. Interesting stuff, eh? After I finished all this researching and such, I was lucky enough to get access to online law review articles, and I discovered, to my great disappointment, that quite a lot of this road, though not all of it, has been pre-trod by Henry Ansgar Kelly, who wrote an article in the Journal of Legal Education in September of 1994 titled _Rule of Thumb and the Folklaw of the Husbands Stick_ (44 J. Legal Educ. 341).

Though he gets annoying points for stealing my stuff before I ever found it, for using his last paragraph to whine about where the OED has been shelved in the UCLA law library instead of, say, concluding his article, and for not being critical enough of Hoff Sommers even in the instances where she clearly deserves it because of her biases, he gets bonus points for being comprehensible and for a footnote in which he notes that any acronymic etymology for the word "posh" is fake.

So there you have it. Satisfied, Will?

Sharon"
120 HOLOFERNES: Joshua, yourself; myself, Judas Maccabeus; 121 and this gallant gentleman, Hector. This swain, because 122 of his great limb or joint, shall pass Pompey the Great; 123 the page, Hercules.

124 ARMADO: Pardon, sir, error! He is not quantity enough 125 for that Worthy's thumb. He is not so big as the end 126 of his club.




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