that exemption from imprisonment for poverty, which was enjoyed by their ancestors eight hundred years

ago.

2. Demands arising out of injuries to the person, property or reputation. Although imprisonment partakes of the nature of punishment, it is not inflicted with that view when allowed in aid of civil remedies. The theory is, that the state having, for the sake of the public peace, denied to the citizen the right to redress his own wrongs, should make the remedies which it proffers for private injuries so prompt and effectual as to remove as far as possible all motive to seek satisfaction by unlawful means. Hence it is, that for fraud practiced in making contracts or in attempting to evade their just obligation, imprisonment, as a coercive means to protect or redress the innocent and injured party, continues an approved element of remedial justice. And hence, also, in cases of injuries to the person, property or reputation, where they are instigated by malice or committed willfully, the wrong-doer has no more meritorious plea for exemption from imprisonment than the fraudulent contractor. Accordingly in some of the states this distinction is recognized to some extent, and no good reason is seen why it should not generally prevail. 2 Kent, 511, n; Holcomb's Law of Debtor and Creditor.

SECTION II.

LIMITATIONS ARISING FROM THE RELATION OF HUSBAND AND WIFE.

1. The husband's right of custody.

2. His supposed right of chastisement.
3. His right of confinement.

4. His right of recaption.

1. The husband's right of custody. Of all the domestic relations, that of husband and wife is the first in the order of nature, the most intimate and the most enduring. Marriage, by some described as a "status," is truly a contract, though it differs in some respects from all other agreements. It is the only one that cannot be legally dissolved by the mutual consent of the parties; and the only one by which one human being can lawfully acquire dominion over another for life.

The extent of the power which the husband acquires over the person of his wife is not very distinctly marked. The courts have not been frequently called on to define with strict precision the limits of the power, partly because, in most cases, mutual affection banishes all thought of inequality; and partly because the labors and trials of life, common to both, beget a sense of mutual dependence which does not nourish controversies for personal supremacy.

Endowed with superior physical power, man is properly chargeable with, what he has in all ages and in all countries assumed, the protection of woman. But it is in his character as the responsible head and

governor of the family that he acquires his right of private restraint over the wife.

The law favors industry, economy and a well regulated household. It requires the husband to maintain the wife and to repair whatever injuries she may inflict upon others. It holds domestic habits to be befitting the wife and mother, and it abhors a dishonored bed.

For these reasons it arms the husband with power to regulate his household. If his wife inclines to extravagant living he may protect his estate and prevent her from squandering it. If she forsakes her duties to her family and gads about to scandalize her neighbors or reform the race, he may bring her home and keep her there. If she burns with "free love" he may protect his honor and exclude her from all associations by which it is endangered.

By what means the husband is permitted to enforce this right of restraint, and with what effect, will be seen as we proceed.

2. The husband's supposed right of chastisement. "By the old law," says Blackstone, 1 Com., 444, "the husband might give his wife moderate correction, for, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with the power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children, for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds. The civil law gave the husband the same or a larger authority, over his wife.

But with us in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or in return a husband against the wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege; and the courts of law will still permit a husband to restrain a wife of her liberty in case of any gross misbehavior."

The right to chastise the wife is repudiated in Ireland and Scotland, Bishop on Marriage and Divorce, § 485; and has met with but little favor in the United States.

In Kentucky, in 1822, it was thought that "the law countenanced the husband in the exercise of needful chastisement of the wife or restraint of her liberty." Humphrey Compend., 137. In 1824, in the State of Mississippi the Supreme Court expressed themselves faintly in favor of the right, saying that the husband "should perhaps be permitted to exercise that power moderately in cases of great emergency." Bradley v. The State, Walker Rep., 156.

The Chief Justice of New Jersey discards the rule. In the case of The State v. Barnhard, 2 Wes. Law Jour., 301, the defendant was tried for an assault and battery upon his wife. It appeared in evidence that she interfered with his correction of his children and got slapped in the face, but not very hard.

Green, Ch. J., said: "There was a time in the history of the common law, in which a man was allowed to beat his wife with a rod no larger than his thumb; and a time still earlier than that when he was allowed

to beat his wife at discretion and turn her out of doors; but in this enlightened and christian age and country, no man has a right to strike his wife at all. If she interferes with a proper discipline in his domestic relations he may restrain her; but the law will not justify him in striking a blow."

It was also held by the court in that case that the defendant could not protect himself under the plea that a man might lawfully whip his wife in Germany where they were married. Such a plea would have proved equally unavailing before the Scotch judge who by his question, suggestive of an interesting contrast, in Duntze v. Levett, 3 Eng. Eccl. Rep., 504, doubtless meant to affirm that the English emigrant could not carry with him the laws of England and exercise on Scottish soil a power so barbarous.

"If a man in this country," asks Lord Robertson "were to confine his wife in an iron cage, or to beat her with a rod the thickness of the judge's finger, would it be a justification, in any court, to allege that these were powers which the law of England conferred on a husband, and that he was entitled to exercise them because his marriage had been celebrated in that country?"

In Delaware, the Supreme Court intimated in the case of The State v. Buckley, 2 Harr., 552, that the husband was only indictable for "undue or excessive battery of his wife, either in degree or with improper means."

The Supreme Court of Massachusetts, in Atkins v. Atkins, cited in Bishop on Divorce, § 465, note, quoted with approbation the observation of Chancellor Wal