I’m guessing it goes way back.
I’m also guessing that originally a wife could not be called upon to implicate her husband but not the reverse.
Any facts?
Spousal privilege is a common law rule that has been around for hundreds of years in various forms. It originally prohibited a person from testifying either against or for his spouse, even with the spouse’s consent, but that restriction has long since disappeared. Here’s a great article about spousal privilege.
With regard to your assertion about privilege originating as a tool for the oppression of women, it wouldn’t surprise me if it has been used that way in the past, but it didn’t originate out of such malicious intent. It really doesn’t matter, though; during the Victorian Era, when the English Common Law was solidifying much of the rules and doctrines surrounding privilege, women had very few other legal rights. They couldn’t enter contracts without a husband’s cosignature, write or change wills without a husband’s consent, or even sue or be sued unless the husband was a party. The fact that they’re testimony was privileged and protected from contradiction by her husband didn’t really matter much, as hubby’s presence in, nay - consent to, just about all of her legal transactions would have been required.
Guy_Incognito, Esq.
Aaargh. Utter homo(nym)phobia. Their…
As Guy has indicated, it’s a principle of the common law and goes back several centuries. I’m not sure how far back it could be traced.
Nope. Neither spouse could testify for or against the other.
The underpinnings of this branch of the law come from the passage in Matthew where Jesus talks about the nature of marriage:
This passage was interpreted as meaning that in law, a married couple was one person, with the husband being in control. Therefore neither one could testify against the other, since that would be self-incrimination, nor in favour of the other, since that went contrary to the principle at common law that a person could not testify in his own behalf.
Blackstone’s Commentaries on the Laws of England summarises it as follows (at p. 431):
- “No-one can testify in his own cause” (Piper’s translation)
** “No-one can be compelled to accuse himself” (Piper’s translation)
In general, at common law married woman were not considered separate persons from their husbands (and vice versa). The conjugal acted as a single person and was legally considered singlular. In and of itself this isn’t necessarily a sexist scheme. The flaw at common law was that the conjugal always spoke through the husband – a conjugal made contracts when he said, a conjugal bought property when he said, a conjugal initiated a lawsuit when he said, etc. – never when she said. (Of course these strictures did not apply to an unmarried woman – a "femme sole – but because of the oinstitutionalized prejudices against women, there were rather few single women who found a success in business.
I’m pretty certain that the spousal privilege grew out of this facet of marriage. Originally, no one was allowed to testify on his own behalf in any circumstance. Although that’s been abolished for a good long time, it was operative during the period where spouses were legally considered a single person. Under that legal fiction, therefore, if a married person tried to testify in a case in which his/her spouse was a party, the testifying spouse would be turned away for attempting to testify in his/her own case.
–Cliffy
Thanks, but for the record, please don’t put words into my mouth. I never said anything about oppression or malice!
The terms I was thinking about were “custom” and “propriety”, which were subscribed to as much by women as men in the old days. I recall when my ex-wife insised I do the voting for both of us because it was my job. And she said it was great that women had an automatic option not to serve on juries. Times change, and you can’t blame your ancestors for not upholding modern banners.
I wasn’t putting words in your mouth. I was applying a cultural bias - that an almost total divestiture of legal rights constitutes oppression - to your statement. Pardon my relativism. :rolleyes:
Almost. The husband being in control is not a relevant issue. The idea is more that they are of one flesh.
Agreed, that’s the theological view. I was speaking of the way the common law intertpreted that passage as a legal principle, and concluded that the husaband was always in control, as Cliffy has explained. Personally, I don’t see that point necessarily flowing from the passage. It could equally be interpreted as implying that all decisions are to be made jointly.