[Re-blogged from November 30, 2013]
Early this morning, something I haven’t thought about in years floated up out of the vasty deeps within and refused to go away. Don’t ask me why, or why now, because I haven’t a clue.
It was the case of “I. de S. and Wife.”
This was the very first tort case ever reported in Anglo-American case law, and the first case I read when I went to law school at the ripe age of 51. I think “I.” stood for “Isaac.” I’m not sure where “S.” was. Surrey? Suffolk? Salisbury? Maybe a friend across the pond can help us out here?
[ Glossary of terms. Consult as needed.]
- “Anglo-American law.” American law derives from English law. No big surprise. We were English colonies before we went off on our own. English law was all there was. Moreover, the law is thrifty; it keeps everything that gets decided, and builds on it. Even after a revolution. “Stare decisis” (it stands decided) — if you want to use fancy words.
- “Case law.” Also known as bench-made law. Or common law. (In contrast to law enacted by legislatures.) What judges decide after all the factual evidence is in, and after they’ve considered all the relevant case law that came before.
- “Tort.” Not a misspelled Austrian pastry. A branch of civil law having to do with various kinds of intentional or negligent harm people inflict on each other (excluding breach of contract, which is part of contract law ) — for which there may be financial compensation.
- “Civil law.” Not criminal law. No jail time. No executions. Can get expensive, though.
Ouch. Yes, I know it hurts. But how can I tell you about I. and his wife, who both lived in S. at the very beginning of the 13th century, without the vocabulary? Anyhow, that ‘s all out of the way now. Onward!
As I recall — and it’s been a long time, so some of the details may be fuzzy — I. was a tavern keeper. After he had shut up shop for the night, there was loud and horrid caterwauling in the street below the window. The wife of I. — nameless for eternity — looked out, and became afeared. (Tr., She was frightened.) I. went to court. He brought suit. He prevailed.
The judges decided there had been an assault. Even though the guy in the street hadn’t actually touched anyone. It was the first actionable tort! Assault: any intentional act or conduct which creates in another person a reasonable apprehension of imminent bodily harm. Stare decisis.
Significant words that will be on the test: (1) intentional; (2) reasonable; (3) imminent; (4) bodily. But never mind that.
What was really significant — to me and all the other women in the class, which was 50% of us — was I.’s wife. Because she was so in-significant. She had no name. She had no right to bring her own complaint. (I. had to do it instead.) In the eyes of the law she was not a person, and therefore had no injury. She was his appendage, his property, his chattel. Frightening her — by inflicting reasonable apprehension of imminent bodily harm — was an injury to him.
Sounds nuts, doesn’t it? Thank goodness we’re not living then!
Not so fast. As recently as the mid-twentieth century (when I was in college), a wife in some states still couldn’t sue her husband — except, under certain limited circumstances, for divorce. If the brakes on his parked car failed, and the car rolled down the driveway and hit her as she was coming in from the street with the groceries — she couldn’t make a claim against his insurance company.
Why not? Because of the time-honored legal doctrine of marital harmony, with which the courts – and the insurance company — chose not to interfere. Man and wife were one flesh, went the reasoning. So how could a man (through his insurer) pay himself for hurting his own flesh?
Flash forward to a few days ago when, blog-browsing, I came across a really adorable young man. He’s twenty-five, and still unmarried, but he’s writing posts about what he’ll tell his future daughter(s), and what he’ll tell his future son(s) — most of both of which I really like. So I clicked “like.”
But he also wrote a sweet and loving post to his future wife, whom he hasn’t met yet, in which he promises to go out in the world to work for her, and take care of her, and always consider her in all his decision-making for the two of them. I know he means well, but I couldn’t click “like.” Why can’t she — the future wife — also go out in the world, and sometimes take care of him, and always consider him in all their decision-making for the two of them?
My ambivalence about traditional “wife”-dom is perhaps surprising in someone for whom being married has been such a central preoccupation over the years. I used to say I couldn’t leave a husband till I had a shrink, and I couldn’t leave a shrink till I had a husband. And that was the story of my life, until Bill. Bill has broken that pattern for me by being both a shrink (now nearly retired) and someone who’s stuck around, unmarried, for almost thirteen years while agreeing that if it ain’t broke don’t fix it.
I guess he’s my common-law husband. And I’m his common-law wife. [See glossary, above.] Not quite a wife, but almost. Works for him, works for us, works for me.
Oh, wait. Does New Jersey recognize common-law marriage?
I’d better go find out right away.