46 Ala. 143 | Ala. | 1871
This is a-criminal prosecution by indictment upon a charge of assault and battery by the husband upon the person of the wife. The defense relied on by the accused is, that a husband may give his wife moderate correction in order to secure her obedience to his just commands.
This authority, on the part of the husband, to chastise the wife with rudeness and blows in order to coerce her obedience to his domestic commands, was not admitted in the age of Judge Blaekstone, or as he says, “ in the polite reign of Charles the Second,” except among “the lower rank of the people, who were always fond of the old common law,” by which “ they claim and exert their mcient
Speaking of the duty of the husband to the wife, a late expounder of the law of this great relation declares that he “ is bound to love his wife and to bear with her faults, and if possible, by mild means to correct them.” — Schouler Dom. Rel. 59; 1 Bouv. Law Dict. 675, Husband ; Goodrich v. Goodrich, 44 Ala. 670. This is the voice of the law, and the voice of politeness and humanity, and I think also the voice of religion, which is, after all, but pure and disinterested love. — St. Paul’s Epists. ad Corinths., ubique.
Besides this, the constitution has wisely and justly extended the protective power of the State to all its people alike. Ifcshield is stretched out over the high and the low, the rich and the poor, the strong and the weak, the wise and the simple, the learned and the unlearned, and the good and the bad, without distinction of rank, caste or sex. All stand upon the same footing before the law, “ as citizens of Alabama, possessing equal civil and political rights and public privileges.” And no special “privilege ” to any rank of the people is allowed to exist in this State, because such a privilege is forbidden by the fundamental law. — Const. Ala. 1867, Art. I, §§ 2, 32; Dale v. Governor, 3 Stew. 387. I therefore think that the common law of “ wife whipping ” among “ the lower rank of people ” in Great Britain, has never been the common law of this State. It is, at best, but a low and barbarous custom, and never was a law.
The husband may exercise over the wife “gentle re
There was, then, no error in the charge given, or in refusing the charge asked. Therefore, let the judgment of the court below be in all things affirmed.