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duct against his wife or obtain redress on his part, if she rebels against oppressive discipline of this kind, is extremely doubtful. Whims and caprices of the husband, submission to which endangers the wife's health, need not be obeyed, and may even be relieved against as legal cruelty;1 and perhaps the former should be said of constraint upon religious worship as the worshipper's conscience dictates; for the husband's right to manage his house and wife must doubtless be understood to have rational limits.

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§ 47. Custody of Children. The custody of children belonged at common law to the father. Blackstone observes: "A mother, as such, is entitled to no power, but only to reverence and respect."2 But by an English statute, passed in 1839, the court of chancery is permitted to interfere and award the custody of children to such parent as may be deemed most suitable. Its special object was to enable married women who should be ill-treated by their husbands to assert their rights without the fear of being separated from their offspring. In this country the tendency of legislation is to place the wife upon a more equal footing with her husband in this respect, so that husband and wife together shall have in their children a joint interest and control, which the courts are to regard as distinct only when the welfare of these tender beings makes judicial intervention necessary; in which event the child's own good may be treated as even paramount to the wish of either parent.

§ 48. Remedies of Spouses against each other for Breach of Matrimonial Obligations. As no legal process can safely be enforced to compel husband and wife to live together, against the will of either, so the peace of society forbids that they should sue one another in damages for breach of the marital obligations. Here again is marriage sui generis, and not like other contracts. But the failure of the one to perform recog

1 Kelly v. Kelly, L. R. 2 P. & D. 31;

1 Bishop, § 758.

2 1 Bl. Com. 453.

4 See post, Parent & Child, c. 3, where the subject is considered at length, as more appropriate to that

2 & 3 Vict. c. 54; Warde v. Warde, branch of the family law.

2 Ph. 786.

nized duties may sometimes absolve the other from certain corresponding obligations. Thus, if the wife leaves her home without justifiable cause, the husband may refuse to support her. If the husband is cruel, or makes his home unfit for a chaste woman to live in (which is a species of cruelty), the wife may leave and compel him to support her elsewhere.2 This is well-recognized law. In general, however, such violation of marital obligations is effectually punishable, not by enforcing them, as in the old English suit for restitution of conjugal rights which is not recognized in the United States, but by putting an end to the relation altogether; a confession that government through the courts proves unequal to the task of protecting the marriage union. And it is in the modern proceedings for divorce that we now find the subject of marital obligations most frequently discussed, with, however, a bias towards the construction of the divorce statutes themselves.

Husband and wife may be indicted for assault and battery upon each other.5 This is a means of redress not unfrequently sought against cruel husbands, especially among those of low surroundings, where drunkenness is common, and religion treats divorce for cruelty with disfavor; and a husband who beats his wife inexcusably may be convicted of this offence. So, too, the offending spouse may be bound to keep the peace. For unreasonable and improper checks upon her liberties, the wife may have relief on habeas corpus. But the writ is not available

1 2 Kent, Com. 147; Manby v. Scott, State v. Mabrey, 64 N. C. 592; Whipp

1 Mod. 124; 1 Bl. Com. 443.

2 Houliston v. Smyth, 3 Bing. 127. And see c. 3, as to wife's necessaries.

8 See 1 Bishop, Mar. & Div. § 771; 1 Fraser, Dom. Rel. 452; Adams v. Adams, 100 Mass. 365; Briggs v. Briggs, 20 Mich. 34; Schouler, Hus. & Wife, §§ 72-77.

It is worth considering whether more effort might not be made to sustain conjugal rights by judicial intervention in the direction of reconciling spouses to one another, requiring the offending party to give bonds, or the like.

v. State, 34 Ohio St. 87; Tucker v. State, 71 Ala. 342.

6 In North Carolina, where the right to moderately chastise has been so reluctantly yielded, it is admitted that if the circumstances involve malice, cruelty, or the infliction of permanent injury upon the wife, the husband may properly be convicted of assault and battery. State v. Oliver, 70 N. C. 60. But in this State trivial complaints are not favored. And a sentence to imprisonment for five years in an aggravated case was lately considered a "cruel and unusual" punishment.

5 Bradley v. State, Walker, 156; State v. Driver, 78 N. C. 423.

for the husband to secure the person of his wife, voluntarily absenting herself from his house.1

§ 49. The Spouse as a Criminal; Private Wrongs and Public Wrongs compared. We shall find the doctrine of coverture affecting the liability of a married woman for her fraud or injury, so that her husband must respond to others in damages for her. But here the private wrong and the public wrong stand contrasted. The immunity of the wife does not extend to criminal prosecutions. For, as Blackstone observes, the union is only a civil union. Or, to come more to the point, it would be cruel and unjust to punish one person for the crime of another, or even to compel the two to bear the penalty together; while it would be impolitic, as well as unjust, to allow any relation which human beings, morally responsible, might sustain with one another, to absolve either from public accountability. Here coverture as a theory contradicts itself by leaving the wife answerable alone for her crimes, just as a single woman. The utmost the law can do is to furnish a presumption of innocence in her favor in cases where the coercion of her husband may be reasonably inferred.

§ 50. Presumption of Wife's Coercion, how far carried This indulgence of presumed innocence, it is said, is carried so far as to excuse the wife from punishment for theft, burglary, or other civil offences" against the laws of society," when committed in the presence or by the command of her husband; but not so as to exculpate the wife for moral offences. For mala prohibita she is not punished; for mala in se she is. Such a distinction is variable and somewhat shadowy; the line seems to be drawn more wisely, if at all, between such heinous crimes as murder and manslaughter, and the lighter offences. And the better opinion is, decidedly, that at the most coercion is only a presumption, which may be rebutted by evidence to the contrary.5

1 Ex parte Sandiland, 12 E. L. & Eq. 463. See Adams v. Adams, 100 Mass. 365, as to the old writ of supplicavit formerly issued for protection of the wife against her husband; Reg. v. Jackson (1891), 1 Q. B. 671; 81 Mich.


2 See post, c. 4.

8 1 Bl. Com. 443.

42 Kent, Com. 11th ed. 150; 4 Bl. Com. 28, 29, and Christian's notes; 1 Hawk. P. C. b. 1, ch. 1, § 9; 1 Russ. Crimes, 18-24.

5 2 Kent, Com. 11th ed. 150; State

The presumption, therefore, that in the less heinous crimes committed by the wife in her husband's presence, the wife acts under the husband's coercion, may in any case be repelled by suitable proof; and when it is, the wife, as one acting sui juris, must be held responsible for the wrong done by her in her husband's company. This is the true rule. Husband and wife may, therefore, both be indicted and convicted of any crime where it appears that both were guilty of the offence and the wife was not coerced.1 In most of the latest cases where the wife is indicted, the presumption of coercion has been regarded as something to be easily rebutted, especially in that numerous class of cases which relate to the illegal sale of liquors, a business in which married women frequently engage understandingly. And where the crime is heinous, and the presence and command of the husband do not concur, a jury may readily find the wife independently guilty.3 Woman shrinks naturally from committing the bolder crimes, yet a woman may be principal in a murder. A wife who committed larceny by her husband's bare command, when he was not present, has been held liable therefor; and our present tendency is to refuse exculpation to the wife unless the husband commanded and was near enough besides to exert directly his marital influence upon her participation in accomplishing the particular crime.5

v. Parkerson, 1 Strobh. 169; 1 Russ. Crimes, 22; 2 Lew. C. C. 229; Uhl v. Commonwealth, 6 Gratt. 706; Wagener v. Bill, 19 Barb. 321; cases infra; 1 Greenl. Ev. 10th ed. § 28.

1 Goldstein v. People, 82 N. Y. 231; Mulvey v. State, 43 Ala. 316; State v. Potter, 42 Vt. 495; People v. Wright, 38 Mich. 744; State v. Camp, 41 N. J. L. 306; 42 Fed. 317.

2 See State v. Cleaves, 59 Me. 298; Commonwealth v. Tryon, 99 Mass. 442; Commonwealth v. Pratt, 126 Mass. 462.

8 Presumption of coercion rebutted in a murder case, where a wife had conspired with her husband to commit robbery. Miller v. State, 25 Wis. 384. In People v. Wright, 38 Mich. 744, where a wife, participating with her husband in a robbery, throttled the vic

tim and told him to keep still, while her husband and a confederate rifled his pockets, a verdict of independent guilt against her was sustained.

4 A wife who acts as principal with her husband in a murder may be held liable accordingly. Bibb v. State, 94 Ala. 31. As to keeping a disorderly house, see 133 Mass. 381. As to forgery, see 97 N. Y. 126.

5 Seiler v. People, 77 N. Y. 411; State v. Camp, 41 N. J. L. 306; State v. Potter, 42 Vt. 495; Commonwealth v. Lewis, 1 Met. 151; Commonwealth v. Feeney, 12 Allen, 560; Commonwealth v. Munsey, 112 Mass. 287; Edwards v. State, 27 Ark. 494. See further, Schouler Hus. & Wife, §§ 7678; 13 R. I. 535, 537; 133 Mass. 580.

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§ 51. Offences against the Property of One Another. lic policy forbids that either spouse should molest the person of the other with impunity. But as to the property of a spouse while cohabitation lasts our law pursues a distinction. Accordingly, it is well established that the wife cannot be found guilty of stealing the goods of her husband, inasmuch as she resides with him and has possession of the goods by virtue of the marriage relation. And as to the husband, whose legal possession and control of his wife's property during wedlock is far stronger, it is held that, not even upon the ground that a certain building was his wife's separate property, can he be convicted of arson for setting it on fire. But where a third person, though at the wife's instigation, forcibly removes from the house goods belonging to the husband, the latter may sue him for the tort.4

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§ 52. Mutual Disability to Contract, Sue, &c. Husband and wife cannot make gifts or sales to one another during coverture, though the same parties might have done so before and in contemplation of marriage. Nor can they in other respects contract or enter into covenants with one another. Nor can one sue the other.5 But, as we shall hereafter see, equity and modern legislation introduce a different principle. This disability of the spouses to sue one another is not merely the technical one that, under the old procedure, husband and wife must join, but is founded on the principle that husband and wife are one. There is sound policy, moreover, in discouraging the pair from making of their matrimonial bickerings a cause of action

1 See, e, g., as to remedies for assault and battery supra, § 48. Otherwise as to a spouse's libel, slander, etc. 16 Q. B. D. 772.

2 Queen v. Kenny, 2 Q. B. D. 307; Lamphier v. State, 70 Ind. 317. And see 86 Ga. 773.

3 Snyder v. People, 26 Mich. 106. Modern American statutes frequently change this last rule. See Schouler, Hus. & Wife, Appendix. And see Ib. $$ 78, 79. In Beasley v. State (1894), Ind., a husband was held criminally answerable for larceny of his wife's property.

4 Burns v. Kirkpatrick, 91 Mich. 364, where the offender was the wife's brother.

5 Lord Hardwicke, in Lannoy v. Duchess of Athol, 2 Atk. 448; 1 Bl. Com. 442; 2 Kent, Com. 129. The married women's acts in this country have changed the common law greatly as to the mutual right of suit. And see, as to modern rules, c. 14, post, Transactions between Husband and Wife.

6 Blackburn, J., in Phillips v. Barnet, 1 Q. B. D. 436.

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