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The Legal Subjection of Men Ernest Belfort Bax 9781141084272 Books

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Product details Paperback 94 pages Publisher Nabu Press (December 31, 2009) Language English ISBN-10 1141084279

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The Legal Subjection of Men Ernest Belfort Bax 9781141084272 Books Reviews

If any fundamental tenet of feminism enjoys even more widespread assent than that which asserts that women are oppressed in the contemporary West, it is that which asserts that women were even more oppressed prior to the emergence of modern feminism.

Indeed, even many critics of modern feminism concede that women were oppressed in these earlier times, insisting only that this is no longer the case. Female privilege, to the extent it is acknowledged at all, is dismissed as a minor recent side-effect of feminism itself.

Those who believe this – as well feminists themselves, their apologists and fellow-travellers in the mainstream media, as well as 'Men's rights activists' and any others with an interest in 'sexual politics' – would do well to read 'The Legal Subjection of Men', first published in 1897, and now available in the public domain free via the internet.

Its authorship is usually attributed to Ernest Belfort Bax, a leading early twentieth-century British socialist and anti-feminist. However, Bax himself, writing in a preface to a later edition, reports that the work "is in great part the work of an Irish barrister and LL.D. of Dublin" whom he does not name.

Its publication is usually dated to 1908 – but this appears to be a "new edition". An earlier version, published by Twentieth Century Press, appears to have been published in 1897. The authorship of this earlier edition is, however, attributed simply to "two barristers", who presumably sought anonymity to avoid persecution by feminists.

Page references cited in this review refer to the 1909 edition published by New Age Press.

The book's title is an allusion to John Stuart Mill's famous, 'The Subjection of Women' (1869), to which 'The Legal Subjection of Men' was apparently conceived of as a response. However, it differs in one respect. Bax and his co-author focus specifically on 'The LEGAL Subjection of Men'. Their focus is therefore on discrimination against men in the legal system.

As a result, the style is rather dry and legalistic and also somewhat repetitive. Nevertheless, it is mercifully succinct – a pamphlet rather than a book.

It is not comprehensive. Despite Bax's socialist background, there is no discussion of discriminatory employment protection legislation (e.g. the 1842 Mines And Collieries Act, which, though celebrated as prohibiting child labour, actually sanctioned the employment of boys as young as ten underground in mines, while prohibiting the employment of women of any age).

Its thesis is simple – far from being oppressed, "down to the minutest detail of law and administration, civil and criminal, women are iniquitously privileged at the expense of men" (pvii).

The "muscular inferiority of women," they suggest, "plays a part, half unconsciously, in the apathy of most men on the question of female privilege" (p61). Yet, "it would be just as reasonable to suppose that because the Czar of Russia... were less muscularly developed than the average Russian peasant, that the possibility of the Russian peasant being seriously oppressed by the Czar... was a proposition to be laughed at" (p61-2).

In reality, "the bravest and strongest man is as weak as a child against the overwhelming force of the state" and "any woman can at will summon to her a power no man can resist... the whole power of the courts and the community, backed up by the press and public opinion" (p56-7).

Discrimination and the Law
Discrimination against men in the operation of the law takes two forms. First, "The express letter of the law discriminates in the sharpest possible manner between men and women in the matter of legal right and duty, of civil law advantage and criminal law exemption"(p3). Secondly, "the letter of the law is supplemented by the bias of tribunals and by the bias of the press and of public opinion, of which opinion, after all, the action of the tribunals is but the reflection" (p3).

Unfortunately, the authors are not always clear in distinguishing the one from the other. For example, in their chapter on the matrimonial law, one subsection is entitled "Impunity to Murder Husband" (p29) – almost as if a statutory provision had expressly conferred on wives the right to kill their husbands.

Of course, in reality, "the law on murder and violence are nominally the same for men as for women" (p29-30). The favourable treatment of female offenders manifests itself instead through "the tacit warping of the Criminal Law in favour of women by the bias of judge, jury, and the press" (p33).

In respect of wives who kill their husbands, the usual procedure is to reduce the charges to manslaughter and impose "a shamefully inadequate or possibly a merely nominal sentence" (p30) – a procedure now institutionalized through the invention of 'battered women syndrome' (see The Abuse Excuse).

Thus, a recent US study found that husbands who killed their wives received sentences almost three times as long as those imposed on wives who kill their husbands (Langan & Dawson 1995piii).

Matrimonial Law
It is nowadays widely assumed that, until recent reforms, matrimonial law overwhelmingly favoured husbands at the expense of wives. Yet, even in Bax's day, it was widely acknowledged that the marriage contract favoured wives.

As early as 1851, Schopenhauer, in his essay 'On Women', observed that, "in our part of the world, where monogamy is in force, to marry means to halve one's rights and to double one's duties"; while HL Mencken, writing in 1922, observed, "under the contract of marriage, all the duties lie upon the man and all the privileges appertain to the woman" such that "when a man marries it is no more than a sign that the feminine talent for persuasion and intimidation... has forced him into a more or less abhorrent compromise with his own best interests" (In Defense of Women).

Indeed, the family law of early twentieth-century Britain differed from the situation prevailing today chiefly in the explicitness with which the wife was favoured. Today the pro-female bias of the family courts is concealed before a façade of gender-neutrality. Then, discrimination against husbands was overt.

Maintenance
Feminists sometimes claim that, in the nineteenth century, women 'were denied property rights'. This belief stems from a misunderstanding of the doctrine of coverture, whereby the legal personalities of man and wife were subsumed.

Actually, coverture applied only to married women. Unmarried women always had the same property rights as unmarried men.

Moreover, husbands were under a legal obligation to maintain their wives. As a result, married men's property rights were also strictly delimited as their property could be seized by the courts on their wife's behalf.

As Bax and his co-author observe, "As against her husband, the law confers upon a woman who has married him the unilateral privilege of maintenance" (p6) and "the most violent methods, including imprisonment and sequestration of the property of the husband, are employed to enforce her claim" (p7). Thus, he is reduced to "her earning slave, bound to work for her or go to prison" (Ibid.).

In contrast, "A wife, no matter if rolling in wealth, is not obliged to contribute a penny to her husband's support, even if he be incapacitated from work through disease or accident" (p7) and "by the Married Women's Property Acts [which granted independent property rights to wives] a woman has complete control over all property acquired or inherited by her in any way, free from any claim on the part of her husband" (p8).

"The sole exception which the law makes", they observe, "is that if he be actually in such destitution as to go to the workhouse, then the wealthy wife is obliged to pay, not to her husband, but the local authorities, the cost of his maintenance" (p7).

Even after death, "a woman has complete power of leaving her property away from her husband, by will, even though in his prosperity he gave it to her", whereas "the husband can be prevented from doing so, by the wife's suing him for maintenance, when his property, or as much of it as judges think fit, is settled on her" (p9).

Yet, the authors observe, "the bulk of women's property, in 99 out of every 100 cases, is not earned by them at all" but rather "arises from gift or inheritance from parents, relatives, or even the despised husband" and "wherever there is any earning in the matter, it is notoriously earning by some mere man or other" (p9).

A wife's right to maintenance was not dependent on her performing her own side of the marriage contract – "even a wife who, against her husband's wish, leaves the house after assaulting and insulting him can obtain against him an order for restitution of conjugal rights [i.e. the sequestration of the husband's property]", yet "no disobedience to a like order on her part enables her property to be confiscated or herself... sent to prison" (p8).

Whereas "a woman can have her husband arrested and sent to gaol if he leaves her, even though her own violence and cruelty led to his flight" (p22), under "Lord Chancellor Cairns' Act 1884" wives could no longer be imprisoned for desertion (p23).

No remedy was available to the husband of a deserting, adulterous wife, who neglects her children, household and husband – but he still had to pay for her maintenance. Thus, "The revolutionary theory of equality, is applied only on one side, and it is assumed as an axiom that a wife is kept and has a right to do precisely as she pleases" (p60).

Maintenance, Offspring and Adultery
Wives' right to maintenance were not forfeited even in the event of adultery – "the latest charter of female privilege, the statute of 1895, gives her claims [to her husband's property] regardless even of her adultery" (p8).

Moreover, men were legally obliged to maintain, not only their wives, but also her offspring. Yet "no matter how flagrant her conduct the wildest dream never suggested that the wife's 'earnings'... no matter how exorbitant, should ever be touched for the benefit even of her children" (p12).

Thus, since paternity-tests did not exist, under the 'presumption of legitimacy' husbands were even charged with the maintenance of their wives' illegitimate offspring. Thus, "if a woman commits adultery she may introduce a bastard child to her husband's family, and saddle him with a pecuniary burden" (p21).

Sexual double-standards were therefore defensible. Yet, to the extent they had legal force, sexual double-standards actually favoured women.

Thus, unlike in the case of men, "no civil action lies against any woman of full age for the seduction of a minor" (p53) and "no action, civil or criminal, lies against a woman who induces a married man to have illicit relations with her" – whereas "a man who seduces or is seduced by a wife has the satisfaction of... paying enormous costs and damages–the latter being settled on the delinquent wife" (p54).

Divorce
The authors reports, "Any woman, by the asking for it, can get a summary separation and confiscation of her husband's property, and an order for her maintenance out of his earnings from the nearest police court" and "this process, which costs only a few shillings, the husband has to pay for" (p12).

In contrast, however, "No man can obtain a divorce except... at a minimum charge of forty pounds" (p12) – at that time, equivalent to a year's wages for many working men. Thus, "the man is in a state of legal subjection to his wife" (p13).

The Flipside of Coverture
To the extent that the doctrine of coverture is remembered today, it is associated with the denial of property rights to married women. Meanwhile, the flipside of coverture – whereby a husband was liable for unlawful acts committed by his wife – is largely forgotten.

Yet, whereas by 1900 the Married Women's Property Acts had already conferred upon married women independent property rights that actually went beyond those of their husbands (see above), the flipside of coverture remained in force.

Curiously the authors never use the word 'coverture'. However, they well understand the principle, explaining how "the husband is liable, and his wife is not, for all the civil wrongs (torts) she may commit" (p11) and "wherever a pecuniary fine is imposed, nominally on the wife, the husband is the vicarious sufferer" (p18).

Thus, a married woman could neither be imprisoned for debt nor have her property seized (p52), conferring on married women, in effect, a "licence for her to break any contract at pleasure" (p53).

Men could even be imprisoned for their wives' crimes – on the basis that, "If her husband is present when she is committing a crime, a married woman is presumed... to have acted under his coercion" (p11).

Van Creveld reports that on one occasion “the jury was asked to consider whether a crippled and bedridden husband should be held responsible for a murder his wife committed in his presence” (The Privileged Sex p155).

This presumption was famously ridiculed by Dickens in a passage from Oliver Twist that is much-quoted – but rarely in full. Mr Bumble, the pompous beadle turned strangely-sympathetic henpecked husband, on being told that, although he acquiesced in his wife's offending only under duress, nevertheless "you... indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction", replies
"If the law supposes that... the law is a ass- a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience – by experience!"

Whipping Women
Even in the case of sentencing practice in the criminal courts where the law has traditionally conferred broad discretion on judges, overt discrimination in "the express wording of the law" was not unknown. The law on corporal punishment provides a particularly flagrant example.

"By express enactment," the authors observe, "no one but a male can he sentenced to corporal punishment" (p50). Unfortunately, Bax et al do not name the statute in question (The Whipping of Female Offenders Abolition Act 1820).

Thus, at the time the authors were writing, the whipping of women had been prohibited for over eighty years – yet "Men and boys... are, flogged like dogs for the most trivial disrespect to the governor and other officials" (p150).

Indeed, whipping remained a prescribed penalty even for boys as young as seven and for offences as minor as theft and property damage. The 1911 Encyclopaedia Britannica entry on "corporal punishment" (available free online), reports
"The whipping of women was absolutely prohibited in 1820 by the Whipping of Female Offenders Abolition Act of that year. But there are numerous statutes authorizing the imposition of a sentence of whipping on male offenders" including "males under sixteen" guilty of any of "many statutory offences e.g. larceny... malicious damage", in respect of which the punishment was limited to the following number of lashes "if a boy is over 7 and under 12, not more than 6 strokes, if he is over I 2, but under 14, not more than 12 strokes may be inflicted".

Indeed, the whipping of male offenders was only belatedly abolished by the Criminal Justice Act 1967 (section 65) – almost 150 years after the same penalty had been abolished for women.

Criminal Sentencing
More often discrimination in the administration of criminal law was concealed behind a nominal façade of gender-neutrality. The authors write "The express wording of the law-and, much more, the tacit warping of the Criminal Law in favour of women by the bias of judge, jury, and the press–has created a regular system of conferring privileges on women as against men, or against the community in general" (p33).

Although the law is nominally gender-neutral, prosecutors and police are less likely to bring prosecutions of female defendants, juries are less willing to convict, and judges impose more lenient sentences. Unfortunately, this means that discrimination can generally only be conclusively demonstrated statistically.

However, unable to conduct quantitative research, Bax and his co-author rely instead on anecdote, recounting the lenient treatment accorded various then-recent female offenders.

Often this treatment does not always seem, to modern ears, especially lenient. However, it must be remembered that the relevant comparison is not with contemporary sentencing practices, but rather with the punishments imposed on male offenders of the same time and place – when whipping, hard labour and hanging were commonplace.

Of course, the problem with anecdotal evidence is that one can always protest that the authors are selectively citing only those cases that confirm their thesis. However, in the last century, more rigorous studies have quantitatively confirmed the suspicions of Bax and his co-author – namely, that female offenders are sentenced more leniently than males (Hedderman & Hough 1994; Spohn and Beichner 2000; Mustard 2001; Streib 2001; Streib 2002; Rodriguez et al 2006; Streib 2006; Curry et al 2004; Jeffries et al 2003; Blackwell et al 2008; Embry and Lyons 2012.).

The most recent and rigorous study found that, after controlling for prior criminal history, convicted women are only half as likely to be sentenced to incarceration as men convicted of the same offences, and, if they are, receive, on average, 60% shorter sentences (Starr 2012).

If anything, the bias in favour of females in Bax's day was probably even more pronounced, given prevailing notions of chivalry (e.g. the allocation of places on board the lifeboats of the Titanic).

The authors identify two exceptions where the leniency usually accorded female offenders is forfeited
1) "If the offence has been committed by one woman against another";
2) "If the offence is by a baby farmer [caretaker], committed against other women's babies".

Interestingly, both these exceptions still hold good. With regard to offences against women, studies find that both male and female offenders are punished more severely when their victims are female (Williams & Holcomb 2004; Curry 2010; Curry et al 2004).

Likewise, women convicted of killing other women's children remain hate figures (e.g. Myra Hindley, Mary Bell in the UK).

Yet, in contrast, women who kill their own children are treated leniently, unlike fathers guilty of the same offence (Wilczynski & Morris 1993) – a form of discrimination that has now been codified, with the Infanticide Acts of 1922 and 1938.

Suffrage
The quintessential exemplar of women's supposed subjugation in late-nineteenth and early twentieth century Britain is the denial of the franchise. Bax and his co-author deal with this issue brusquely
"Electoral disqualifications are often attendant on special privilege" – for example, "the Royal Family of this realm, with all their branches, are debarred from the exercise of both the passive and the active franchise. And yet no one pleads that, say, the Prince of Wales, is, in consequence, a cruelly oppressed personage" (p63).

At any rate, no women suffered directly as a result of the denial of the franchise. They only suffered to the extent that male electors voted for laws that themselves discriminated against women. In fact, however, a Parliament both composed of and elected by men alone actually passed legislation explicitly discriminating against men themselves (e.g. the 1820 Whipping of Female Offenders Abolition Act, the 1916 Military Service Act, the Mines and Collieries Act 1842).

It can therefore be argued that the male monopoly on voting rights actually paradoxically benefited women.

[Interestingly, Moxon contends that women were denied the vote in national elections only because men alone paid taxes and were conscripted into the military – and, prior to the expansion of governments' roles, taxation and conscription was the extent of their impact on individuals. In contrast, he observes, at the local level, women have always voted The Woman Racket pp108-27.]

A Golden Age of Equality?
Modern feminists (and no few opponents of feminism) concur that late-nineteenth and early twentieth-century Britain was an era of patriarchy, male privilege and female oppression. A reading of 'The Legal Subjection of Men' dispels this myth.

An obvious question, then, is whether the patriarchy postulated by feminists was ever a reality.

Interestingly, Bax and his co-author themselves suggest that, in the then recent past, a degree of, if not equality, then at least of balance existed in the administration of the law.

Thus, while wives could demand maintenance, "The earlier law made this privilege dependent on her obedience, cohabitation with her husband, and her observance of outwardly decent behaviour" (p7). Similarly, "under the earlier law... ecclesiastical censure restrained the deserting wife" and "under the common-law" a husband "could prevent her by force from leaving his house, and could bring her back if she had escaped" (p22).

However, given that the era of supposed male privilege and patriarchy described by feminists (namely, Bax's own) turns out, on closer inspection, to be anything but, we have reason to be sceptical of similar claims regarding an even earlier era. The belief in a golden era, an Eden before The Fall, seems to be a recurrent human superstition, from the 'primitive communism' envisaged by Marx to the equally mythical 'matriarchal prehistory' postulated by feminists.

The authors themselves acknowledge this, writing "even the disabilities of women in past times have been grossly exaggerated" and were "for the most part the necessary outcome of women's position as non-combatants in a rude fighting age" – concluding "an impartial student of history must admit that, however badly men have treated their fellow-men, they have always treated women with comparative generosity" (p62).

Epilogue – WWI
The tragic epilogue to 'The Legal Subjection of Men' cannot be ignored. Just six years after the publication of the New Age Press edition, what was to be the greatest armed conflict in European history broke out and men across Europe were conscripted and sent to the trenches.

In response, celebrated suffragette Emmeline Pankhurst temporarily suspended her terrorist campaign for the enfranchisement of women to instead make speeches exhorting men to enlist, while her supporters handed white feathers to men in civilian dress.

There was, of course, not a peep from these self-styled champions of gender equality that women ought to be forced to fight alongside men. Indeed, the Pankhursts explicitly rejected this notion.

"It was not necessary for women to go to 'the trenches'" Emmeline is quoted as observing, "since it was women who brought children into the world and thus perpetuated the human race" (Purvis, Emmeline Pankhurst A Biography at p269); while her daughter Christabel observed, "You must remember that if the men fight, the women are the mothers" and concluded, "if women do not actually take part in the fighting... that argues no diminution of their claim to political equality" (Marwick, Women at War 1914-1918 at p30).

Bax himself had already provided the rejoinder to this argument, observing out that, although women give birth, "there is no governmental compulsion that they should do so" and that they "do so in the performance of a natural function, not as a public duty" (Bax 1909). Any analogy with conscription is therefore misplaced.

However, in 'The Legal Subjection of Men' the authors focus on the then situation in the UK. They do not discuss the issue of military service because, at that time, Britain, alone among the Great European Powers, did not rely on conscription.

With the coming of WWI, this soon changed. In 1916, Parliament passed the Military Service Act, introducing conscription for unmarried men.

Interestingly, married men, at first, were exempt. It was one thing for men to lose their lives – quite another for wives to lose their husbands, meal tickets and main source of income.

Soon, however, conscription was extended to married men, and, by the war's end, 700,000 British men had been killed, while across Europe casualties numbered ten million.

Historian Martin Van Creveld observes, "In the Western world since the French Revolution the right to vote was often a direct consequence of, or at any rate went together with, conscription" (Men, Women & War p210).

Yet, within a year of the conclusion of WWI, British women were granted the vote. A year later, the USA followed suit.

Perversely, this reform was hailed as a 'reward' for women's 'contribution to the war effort' – a contribution that consisted of, firstly, doing safe work on the home-front of the sort men had done even before the war and, secondly, handing out white feathers. Meanwhile, men whose contribution to the war effort was comparable (i.e. conscientious objectors) were actually penalized by having their vote withdrawn for a decade (Goodall, A Question of Conscience p70).
__________

In the years since the publication of 'The Legal Subjection of Men', the reality of men's legal subjection has changed greatly in detail but little in extent.

Bax and his co-author began their discussion by observing, "John Stuart Mill is dead! But his eloquent wail of the subjection of women is never let die-it rings in our ears every day" (p1).

Today, Mill's role in the genesis of feminism is downplayed, largely on account of his sex. However, the thesis he championed still positively deafens the ears and is 'never let die' today some 150 years after he penned it and over a hundred since Bax and his co-author penned their equally eloquent yet largely forgotten rejoinder.

Meanwhile, recently rediscovered by a new generation of self-styled 'Men's Rights Activists', Ernest Belfort Bax is enjoying a minor resurgence. Once hailed as a leading British socialist, he is now coming to be recognised as the forgotten forefather of the modern Men's Rights Movement. Meanwhile, his anonymous co-author remains anonymous to this day
__________

References
Bax 1909 Women's Privileges and 'Rights"', Social Democrat, 13(9) September 1909, pp.385-391)
Curry 2010 The conditional effects of victim and offender ethnicity and victim gender on sentences for non-capital cases. Punishment & Society 12(4)438-462
Curry et al (2004) 'Does Victim Gender Increase Sentence Severity? Further Explorations of Gender Dynamics and Sentencing Outcomes', Crime&Delinquency, 50(3)319-343.
Demuth & Steffensmeier (2004) 'Impact of Gender and Race-Ethnicity in the Pretrial Release Process' Social Problems 51(2)222-242
Embry & Lyons (2012) 'Sex-Based Sentencing Sentencing Discrepancies Between Male and Female Sex Offenders'. Feminist Criminology 7(2)146-162
Freiburger & Hilinski (2010) 'The Impact of Race, Gender, and Age on the Pretrial Decision' Criminal Justice Review 35(3)318-334
Hedderman & Hough (1994) 'Does the Criminal Justice System Treat Men and Women Differently' Home Office, UK.
Jeffries et al (2003) Pathways to Sex-Based Differentiation in Criminal Court Sentencing Criminology 41(2)329-354;
Langan & Dawson (1995) 'Spouse Murder Defendants in Large Urban Counties' (U.S. Department of Justice Bureau of Justice Statistics)
Mustard (2001) 'Racial, Ethnic and Gender Disparities in Sentencing Evidence from the US Federal Courts Social Science Research Network' XLIV285-314.
Rodriguez et al (2006) 'Gender Differences in Criminal Sentencing Do Effects Vary Across Violent, Property, and Drug Offenses?' Social Science Quarterly 87(2)318
Spohn & Beichner (2000) 'Is Preferential Treatment of Female Offenders a Thing of the Past? A Multisite Study of Gender, Race, and Imprisonment', Criminal Justice Policy Review, 11(2)149-184
Starr, (2012) Estimating Gender Disparities in Federal Criminal Cases (August 29, 2012). University of Michigan Law and Economics Research Paper, No.12-018
Streib (1997) 'America's aversion to executing women', Ohio Northern University Women's Law Journal, 11-8
Streib (2001) 'Sentencing Women to Death' Criminal Justice Magazine 16(1)
Streib (2002) Gendering the Death Penalty Countering Sex Bias in a Masculine Sanctuary, Ohio State Law Journal 63433
Streib (2006) Rare and Inconsistent The Death Penalty for Women, Fordham Urban Law Journal
Williams & Holcomb (2004) The Interactive Effects of Victim Race and Gender on Death Sentence Disparity Findings Homicide Studies, 8(4)350-376
Wilczynski & Morris Parents Who Kill Their Children' (1993) Criminal Law Review 31-36
Ernest Bax's work counterbalanced the effects of J.S. Mill's feministic worldview. In today's highly emasculated society, men seek retribution from sexism within the cultural scripts laced with latent anti-masculinity. Men owe themselves the duty of seeking truth as part of their liberation from oppressive extremism caused by the left-wing feminists. In a world whose boundaries are blurred, men must un-blur them in order to regain their identities as a collective population. Bax's work provides a framework of case examples for men to make objective arguments based on consistent results of murder cases in which female perpetrators were prevalent. Read it!
Nice little book to read