A Revolutionary Without the Means: Justice Henry McCardie and the Position of Wives under British Law

By Rebecca Bradley

It is not surprising that the position of married women within the law in the early 1900’s, was unequal to that of men. Although, at the conclusion of the First World War, the law seemed to be improving women’s lives by ‘allowing’ them the right to vote and the right to hold employment in fields that were never open to them before, patriarchal laws regulating marriage were still used to enforce stereotypes and preserve a form of control over women. Justice Henry McCardie, a white and wealthy male who grew up in Birmingham, was not an obvious voice for gender equality.

Yet, it is clear from the numerous cases over which McCardie presided that he sought change in the legal system. For instance, in Cohen v Sellar, he held that a fiancé who ends an engagement is not entitled to demand the return of the engagement ring. Through judgements like this, in particular on promises to marry and the tort of enticement, McCardie made sure that he acknowledged the equal status women held within marriage, whilst sounding his disapproval on the general legal view which framed wives as property of their husbands. It is argued that Justice Henry McCardie made a controversial and unique attempt towards asking reform of the discriminatory laws against women. However, his position as a Judge bound him to decide only within those laws. Hence, it is fit that he be named a ‘revolutionary without the means’.

The Story of Henry McCardie:

Author John Pollock described McCardie as a ‘real son of Birmingham’. Born in Edgbaston in July 1869, Henry was one of seven siblings fathered an Irish merchant and his wife. However, his father died when Henry was still a young child, leaving his widow a single mother. It is possible that this is where Henry started to appreciate the strength of women and their ability to hold a family together without a husband.

Henry was educated at King Edwards School in Birmingham; nevertheless, he did not go on to get a degree – the route one would usually take in order to enter into the legal profession. Once within the judiciary however, Henry was the recipient of the honorary degree of Doctor of Laws from the University of Birmingham. Before this, Henry became an auctioneer at the offices of Thomas and Betteridge in Birmingham. It has been suggested that he developed a great understanding of the commercial world from his work there. Seeking a change in career, Henry became a barrister and slowly became a force to be reckoned with. He was a sought after lawyer and was known to many as ‘the lighthouse’, because of his candle burning into the night, due to his heavy case load. By 1916, Henry had advanced up the legal hierarchy and was appointed a judge of the King’s Bench Division.

The Position of Women Within the Legal and Political Spheres in the Early 20^th Century:

The law of the time was starting to improve for women. After World War One, women had established their abilities in the work place and had challenged the typical gender roles promoted throughout society. Although not fully equal to men, women over thirty (and holding property) received the right to vote, and women were also able to enter into professions they would have previously never be considered for. Significant developments for wives came with the Married Women’s Property Acts of 1882, 1926 and 1935 in which it was made absolutely clear that within the law, wives have the right to own, buy and sell their own property, separate from their husbands. This was a significant departure from the notion of coverture, which sought to frame a wife as existing within the same entity as her husband, under his protection and authority. Under this concept, she could not own property herself. Neither could she refuse her body to her husband for his pleasure, because consent to sex was regarded as an irrevocable condition of the agreement to marry.

While the Property Acts seem to have broken away from this notion, the law intervening in the private sphere of marriage had not. The 1920s and 30s were considered to be a period of sexual liberation for women and men. However, the law reflected a substantial difference in treatment of a wife’s sexuality by comparison with a husband’s, propagating damaging societal double-standards. For instance, the law allowed a husband to claim damages for his wife’s adultery or for the enticement, seduction and harbouring of his wife. Justice McCardie sat on a wealth of cases of these sorts, in which he voiced his disapproval at the ways the law treated women as property of their husbands, and looked to parliament in order to ask for its change. This led to many judicial differences of opinion with his peers, and it is suggested it stopped him from advancing within his profession Nevertheless, McCardie took the side of women time and time again.

Place v Searle

Place v Searle (1932) concerned the law of enticement. This was most famously established in the case of Winsmore v Greenbank (1745) where it was held that a wife owed a duty to her husband to reside with him, so he could enjoy her company, and he was allowed to claim damages from anyone who persuaded her to violate that duty, by leaving him or the matrimonial home without his approval. The action was based upon an analogy between husband and wife and master and servant or parent and child. In Searle, Mr Place, a grocer’s assistant, claimed damages in tort against Mr Searle, a doctor who had been a lodger at his house for several years, for enticing his wife away from him. The men had engaged in a physical fight. The alleged enticement was said to be Mr Searle stating, after he had beaten Mr Place, “Come on, Gwen. We will go.” Mr Searle held throughout the case that she left wholly of her own initiative. During the proceedings, Mr Place admitted to saying to Mrs Place that he felt as though he could “run a knife through her.” There was also evidence proving he kept a revolver under the marital bed and would inform his wife it was fully loaded, he often physically abused her, and refused her a sufficient allowance. Yet, Mr Place was the one claiming damages.

Justice McCardie’s judgment was remarkable. First of all, he noted the absurdity that this law could produce, remarking that when wives would get persuaded by relatives to spend the weekend with them, knowing their husband would object, the relatives would be liable to him. Similarly, a woman might not be able to accept employment against her husband’s will. McCardie was not at ease with seeing a marriage as something that legally enforced absolute obligations. He saw it as nonsensical to allow for marriage to be viewed as acceptance and performance, and he made a point of critiquing this law. He recognised women’s independence and autonomy, stating: “It seems clear that a married woman is free to depart when she wishes from her husband’s house.” There could be no enticement where, as in this case, the wife had chosen to leave of her own accord. Women were not the passive subjects of men’s actions.

Here, McCardie is disapproving of the idea that the wife would only ever exist within the familial home and the private sphere, as property of her husband. If men could leave the house and their wives freely, (this did not change until Best v. Samuel Fox in 1952) it made no sense to McCardie that women, and especially those in situations similar to Mrs Place, could not do the same. Third, McCardie challenged those making the laws and suggested a change was due. In his judgment, he said: “I do not know how the old law is to be reconciled with the independence which the modern law has given to married women.” He stated that the position between husbands and wives “calls for reconsideration”. The law was highly inconsistent in recognising women’s rights and freedoms – they had the right to vote, but were still essentially considered property of their husbands. His conclusion was that wives needed to be considered as independent legal beings, and as autonomous and capable as their husbands. It seemed clear to McCardie J that Mrs Place was a woman of ‘resolute will, of independent decision, and of strong mind and physique’.

It wasn’t until the 1970 Law Reform (Miscellaneous Provisions) Act that the law made a provision which abolished actions for enticement, seduction and harbouring of spouses or children. Unfortunately, by this time Justice Henry McCardie was found to have committed suicide in his London flat. As a judge, McCardie’s weakness would always be that he could not change these laws himself, he could only ask for parliament to reconsider them: this is why much of his critiques went unheard. In fact, when this case was appealed to the Court of Appeal, McCardie’s judgement was rebuked by Scrutton LJ and his decision overturned. The emancipation of women had no effect on the rights of husbands. Scrutton LJ argued that an unmarried judge, like McCardie, (though he cohabited with two women in long-term relationships) was not entitled to pronounce on the rights of married men. Thus, McCardie was a single judge and outsider, whose impact was limited by patriarchal forces.

Further Reading:

Mitchell, Paul, A History of Tort Law 1900-1950 (Cambridge University Press, 2015)

Pollock, George, Mr Justice Henry McCardie, a Biography (John Lane and the Bodley Head Limited 1934)

Bates, Denise, Breach of Promise to Marry: A History of How Jilted Brides Settled Scores (Pen & Sword Books, 2014)

Brooke, Stephen, ‘ ”A New World for Women”? Abortion Law Reform in Britain during the 1930s’ (2001) 106 2 The American Historical Review 431

Holmes, Ann Summer, ‘The Double Standard in the English Divorce Laws, 1857 – 1923’ (1995) 20 2 Law & Social Inquiry 601

J, R. M. ‘Abolition of Actions for Breach of Promise, Enticement, Criminal Conversation, and Seduction’ (1953) 22 2 Virginia Law Review 205

S, M.H. ‘The Hon. Sir Henry Alfred McCardie’ (1933) 79 The British Journal of Psychiatry 434