THE LEGAL UNITY OF HUSBAND AND WIFE
| Published date | 01 January 1947 |
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00034.x |
| Author | Glanville L. Williams |
| Date | 01 January 1947 |
THE LEGAL UNITY
OF
HUSBAND
AND
WIFE
ON
December
5,
1945, some surprise was caused by the
report of
a
decision of the Tonbridge Bench. According to
the newspapers the decision was that
a
man committed no
offence in using the return half of his wife’s non-transferable
railway ticket, because husband and wife are one person
in
law. One recalled the words
of
Lush
J.
in his work
on
Husband and Wife
that the latter rule
‘
at
the present day
lifts
its
head hydra-like and is on occasion applied with
surprising results
’.
However, the Chairman of the Bench of
magistrates afterwards wrote to
The Times
(December
8,
1945, p.
5)
denying the correctness of the report, and
asserting that the decision had actually proceeded on the
prosaic ground that the husband had no intent to defraud
the company.’a This explanation robs the decision of the
dramatic interest that it would otherwise have had, but
the occasion may be taken to comment upon the scope of the
venerable maxim thus brought to the public notice. The
question to be answered is whether the maxim represents
a
living principle of law, from which new deductions may
legitimately be drawn.
The notion of conjugal unity has
a
biblical origin.
Genesis, ii,
24,
is explicit that husband and wife
‘
shall be
one flesh’, and this is repeated in the New Testament
(Matthew,
xix,
5-6;
Mark,
x,
8).
There can be no doubt
that it was this theological metaphor that produced the legal
maxim.
It
is found in the earliest English law book, the
Dialogus de Scaccario
(‘
Satis audisti quod
“
qui
adheret
”
mulieri
“
unum
corpus eficitur
”,
sic tamen
ut
caput eius
sit
’-11,
c. 18)’ and even more clearly in Bracton
(‘
Vir et
uxor sunt quasi unica persona, quia car0 una et sanguis
unus
’-f.
429b; cp.
f.
32).
Thence it passes to Littleton and
Coke
(Co.
Lit. 112a, 350b), and becomes part of the stock-in-
1
la
4th ed.
58.
The
decision was reversed on appeal by a Divisional Court on the ground that
the offence charged had been proved, notwithstanding an absence
of
intent to
defraud
(The
Times
newspaper, May
9,
1946).
No
reference appears
to
have
been made
to
the doctrine
of
conjugal unity.
16
JAN.
1947
LEGAL
UNITY
OF
HUSBAND AND
WIFE
17
trade of the common lawyers.’ Since the idea is as much
biblical as legal, we cannot say that the use made
of
it by
Shakespeare is evidence of any special legal attainments.
Hamlet.
Farewell, dear mother.
King.
Thy loving father, Hamlet.
Hamlet.
My mother: father and mother is man and wife, man and
wife is one flesh, and
so,
my mother.
Hamlet,
IV,
3,
53-5.
Portia.
I
charm you, by my once-commended beauty,
By all your vows of love, and that great vow
Which did incorporate and make
us
one,
That you unfold
to
me, your self, your half,
Why you
are
heavy.
Julius
Ccesar,
11,
1,
271-5.
In any case it was not Shakespeare but Byron who gave
to the notion its wittiest expression-and
no
one has accused
Byron of legal leanings.
Why
don’t
they knead two virtuous
souls
for life
Into that moral centaur, man
and
wife? Dan
Jucrn,
canto
5,
clviii.
When the judges come to state its legal aspects they do
so
with some caution. ‘In the eye
of
the law, no doubt,
man and wife are for many purposes one; but that is a
strong figurative expression, and cannot be
so
dealt with as
that all the consequences must follow which would result
from its being literally true
’:
per
Maule
J.
in
Wenman
v.
Ash.(1853).3
‘It
is a well-established maxim of the law that
husband and wife are one person. For many purposes, no
doubt, this is
a
mere figure
of
speech, but for other purposes
it must be understood in its literal sense
’:
per
Lush
J.
in
Phillips
v.
Barnett
(l876).‘
In truth the maxim is
a
misleading one, even as applied
to the unreformed common law. For one thing, if left with-
out explanation it may suggest that the spouses participate
equally in the personality that is thus created out of them;
whereas it would be closer
to
the rules of the common law
to
say, in the words of the wag, that ‘man and wife are one-
but the man is the one
,.
Blackstone expressed the equation
more soberly when he said
:
‘
By marriage, the husband and
A
Year-Book reference
is
in
Y.B.
(1443/4)
H.,
23
H.
6, %a,
pl.
6.
See
also Fortescue,
De Laudibus,
ch. xlii. Later discussions
mlll
be
found
in
Noy,
Maxims,
No.
29,
and
Com.Dig.
Baron
&
Peme
(D).
3
13
C.B.
836
at
844.
4
1
Q.B.D.
440.
VOL.
10
2
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