And aside from debauchery or enticement, the husband's action lies for the alienation with bad motives of his wife's affections.1

§ 42. Husband's Duty to render Support. This subject will be considered later in treating of the wife's necessaries, when it will also appear that our married women's acts tend to certain changes, not so much of principle as application, by extending the liability for family supplies to property such as wives now hold to their separate use. The general rule of law is that the husband, the spouse who holds and fills the purse, is bound to provide the family support and means of living. The style of support requisite of lodging, food, clothing, medical attendance, and the like-is such as befits his means and condition of life. A wife is not usually justified in leaving her husband and the common home so long as the husband treats her kindly, and provides to the extent of his ability, even though retrenchment in the style of living may be needful from one cause or another. And it is his habitual conduct in this respect, rather than some isolated instance, which should be chiefly regarded in a divorce for his neglect. Pecuniary inability to support, especially when proceeding from no unkindness or indifference on his own part, is held no ground for a wife's divorce. Nor is his saving and frugal disposition, where he could afford to be liberal. But reducing the wife's comforts needlessly, and from sinister motives, she may justly complain of, and criminal prosecution with recognizance is found to aid the common law of the wife's power to pledge credit in compelling a competent husband to support his family.

The wife's obliga

§ 43. Wife's Duty to render Services. tion to render family services is at least co-extensive with that of the husband to support her in the family, these services and the comfort of her society being in the fact the legal equivalent of

1 Rinehart v. Bills, 82 Mo. 534.

2 Post, $$ 61-72.

3 See Skean v. Skean, 33 N. J. Eq. 148; James v. James, 58 N. H. 266; 76 Iowa, 638.

✦ Jenness v. Jenness, 60 N. H. 231.

5 Bruner v. Bruner, 70 Md. 105; Jewett v. Jewett, 61 Vt. 370.

6 Runkle v. Runkle, 96 Mich. 493.

Boyce v. Boyce, 23 N. J. Eq. 337. And see Necessaries, c. 3; also People v. Pettit, 74 N. Y. 320; Schouler, Hus. & Wife, § 67.

such support. Hence, as it is held, the wife of an insane man cannot claim special compensation out of his estate for taking care of him, even though such were the express contract between herself and the guardian.2 Nor can a wife found a suit for wages promised by her husband, upon the marital legislation giving her a right to her general earnings. Doubtless it would be bad policy to permit marital services on either side, however meritorious, to become a matter for money recompense, and to strike a just balance is impossible.

§ 44. Right of Chastisement and Correction. Though either spouse may be the more dangerous companion, because of greater physique, daring, recklessness, or depravity, nature gives to the husband the usual advantage. In a ruder state of society the husband frequently maintained his authority by force. The old common law recognized the right of moderate correction, which, according to Blackstone, was deemed a privilege by the lower orders in his day. The civil law went still further, permitting, in certain gross misdemeanors, violent flogging with whips and rods. But since the time of Charles II. the wife has been regarded more as the companion of her husband; and this right of chastisement may be regarded as exceedingly questionable at the present day. The rule of persuasion has superseded the rule of force. Few cases of importance are to be found on this subject. In England, not many years ago, where a wife sought divorce from bed and board for cruelty, it was shown that the husband had spit upon her, pushed and dragged her about the room, and once slapped her face; and upon this proof the divorce was granted. The right to inflict corporal punishment upon the wife has never been

1 Randall v. Randall, 37 Mich. 563, per Cooley, J.; Grant v. Green, 41 Iowa, 88; Stimson, § 6401.

2 Grant v. Green, 41 Iowa, 88.

3 Swetzer v. Kee, 146 Ill. 577; Blaechinska v. Howard Mission, 130 N. Y. 497.

4 1 Bl. Com. 444, 445. In Adams v. Adams, 100 Mass. 365, Chapman, C. J., states the old form of the writ of supplicavit for protection of the wife against her husband; viz., that the husband

favored in this country, and its exercise would now generally justify proceedings for a divorce. Indeed, our latest State decisions emphatically deny that the right longer exists either in England or this country. It may be added that the wife should not chastise her husband; nor provoke harsh treatment by her own violence, foul abuse, and misconduct.2

But either spouse may use force in self-defence. And the husband may restrain his wife from acts of violence against others as well as himself in person or property, most certainly wherever the law makes him answerable in damages for her misbehavior; and may prevent her unwarrantable interference with the due exercise of his parental authority.

3

§ 45. Husband's Right of Gentle Restraint. The right of gentle restraint over the wife's person rests upon better authority than that of chastisement. The right, however, depends upon the proposition that the husband is dignior persona. And its exercise is often to be justified in the courts on the same grounds; namely, that the husband must answer to others for his wife's conduct. Blackstone says that in case of any gross misbehavior the husband can restrain his wife of her liberty. The later expression of Kent is that he may resort to "gentle restraint."4 Strong instances for the exercise of this right occur where the wife has eloped with a libertine, and the husband wishes to bring her home; or where she purposes an elopement, and he seeks to prevent it; or, perhaps, where she goes recklessly into lewd company.5 Restraint may also be

1 Gholston v. Gholston, 31 Geo. 625; Pillar v. Pillar, 22 Wis. 658; Edmonds' Appeal, 57 Penn. St. 232; Fulgham v. State, 46 Ala. 143; Owen v. State, 7 Tex. App. 329; Gorman v. State, 42 Tex. 221; 1 Bishop, § 754, and cases cited; 92 Ky. 452. In State v. Rhodes, 1 Phill. (N. C.) 453, the right of moderate correction was claimed. But the opposite rule is announced in the later case of State v. Oliver, 70 N. C. 60. Corporal chastisement is not justified, though the wife be drunk or insolent. Commonwealth v. McAfee, 108 Mass. 458; Pearman v. Pearman, 1 Swab. &

T. 601. Divorce has been granted where a husband repeatedly threatened to strike and kill his wife. 60 Iowa, 397.

2 Knight v. Knight, 31 Iowa, 451, and cases supra; Prichard v. Prichard, 3 Swab. & T. 523; Trowbridge v. Carlin, 12 La. Ann. 882.

3 2 Kent, Com. 181; People v. Winters, Parker (N. Y. Cr.), 10; Bl. Com. 445; Richards v. Richards, 1 Grant, 389.

42 Kent, Com. 181; 1 Bl. Com. 445. 5 So strongly does the common law detest conjugal unfaithfulness, that the

justified where the wife becomes insane, threatens the husband with danger, or wantonly destroys his property.1

So, too, the husband, by virtue of his marital authority over his own household, might be allowed, if not by physical force, at least by moral coercion, to regulate her movements so as to prevent her from going to places, associating with people, or engaging in pursuits, disapproved by himself on rational grounds. This doctrine has been asserted in England; and Mr. Fraser carries it to the extent of forbidding her relatives to visit her; "for," he observes, "though the wife may be very amiable, her connections may not be so."2 But this rule is to be laid down with great caution, and it may be considered especially unpopular in America. Mr. Justice Coleridge, in an English case, observes that the husband's right must not be exercised unnecessarily or with undue severity; and that the moment the wife, by her return to conjugal duties, makes the restraint of her person unnecessary, such restraint becomes unlawful.3

Our modern doctrine is that force, whether physical or moral, systematically exerted to compel the submission of a wife in such a manner, and to such a degree, and during such a length of time, as to injure her health and threaten disease, is legal cruelty. And in quite recent instances where the doctrine of the husband's right to physically constrain his wife has come up, the court has pronounced practically against such a general right on his part; thus leaving him without the legal means of compulsion by imprisonment, but remitting him rather to divorce remedies.5

§ 46. Regulation of Household, Visitors, &c. From the common-law relation of husband and wife it follows, as our last section indicates, that the general regulation of a house

husband who kills his wife or her paramour in the act of adultery is only guilty of manslaughter. See Regina v. Kelly, 2 Car. & K. 814; also 83 Ga. 744.

18 Mod. 22; 1 Stra. 477; In re Price, 2 Fost. & F.; 263; State v. Craton, 6 Ire. 164. And see 1 Bishop, Mar. & Div. § 756.

21 Fraser, Dom. Rel. 459. This observation was made by Lord Stowell

in Waring v. Waring, 2 Hag. Con. 153; 1 Eng. Ec. 210.

8 In re Cochrane, 8 Dowl. P. C. 631. Kelly v. Kelly, L. R. 2 P. & D 31; Bailey v. Bailey, 97 Mass. 373. See Schouler, Hus. & Wife, §§ 507-510.

Reg. v. Jackson (1891), 1 Q. B. 671; Buckingham v. Buckingham, 81 Mich. 89.

hold is the privilege of the husband, who is its lawful head. The wife in this respect is to be viewed as his representative or executive officer, properly intrusted with domestic details, and particularly with the supervision of female menials and their work. Husbands are sometimes blameworthy in the course of such regulation for pettiness, meanness, and inconsiderateness towards their wives. And yet households differ, and legal cruelty cannot readily be predicated of such conduct further than that, in divorce suits, misbehavior of this kind is frequently alleged in aggravation of actual cruelty otherwise practised, and so as to give body to the latter charge. It cannot be called cruelty or a breach of marital duty justifying legal interference, for a married householder, however large his establishment, to take the settlement of the little bills upon himself, or the hiring and discharge of the servants.

As to the question how far the wife is bound to observe the husband's directions in entertainment, the choice of visitors, the arrangement of the rooms, and so on, the English rule is still strict, or, rather, permissive of the husband's sway. The wife is expected to conform to her husband's habits and tastes, even to his eccentricities, provided her health be not seriously endangered by so doing. And though he should restrict the calling list to a certain set agreeable to himself alone, or interdict intercourse with her family, or prevent her from paying a visit to his own relatives, all of which we may well presume to be unkind and unreasonable, yet this alone is not sufficient ground for divorce.2 Nor, as it has been held in this country, would divorce be granted simply because he had forbade her to attend a particular church of which she was a member.3 Modern American precedent, however, on all these points is quite scanty. And whether the husband can allege miscon

115.

1 Evans v. Evans, 1 Hag. Con. 35,

2 Neeld v. Neeld, 4 Hag. Ec. 263; D'Aguilar v. D'Aguilar, 1 Hag. Ec. 773; Waring". Waring, 2 Hag. Con. 153; Shaw v. Shaw, 17 Conn. 189; Fulton v. Fulton, 36 Mo. 517.

267.

8 Lawrence v. Lawrence, 3 Paige, See 74 Tex. 414.

A wife cannot stipulate for giving any one a home in the matrimonial household aside from her husband's wishes. 78 Mich. 17. But she can license one to enter while her husband is away. 31 Neb. 540.