Fulgham v. State, 46 Ala. 143

Fulgham v. State

46 Ala. 143

Ala.

1871

Check Treatment

PETERS, J.

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 obediencе 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 alwаys fond of the old common law,” by which “ they claim and exert their mcient *146privilege ” to give their wives “ moderate correction,” to secure subordination in the .family. — 4 Bl. Com. 444, 445, marg. page. It will be seen from this reference, that this еminent and classic commentator on the law of England confines this brutal and unchristian “ privilege ” wholly tо the “ lower rank of the people.” The most zealous advocates of “ wife-whipping ” havе never gone beyond this unhappy rank. It has never been contended that this liability ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to be corrected with blows and stripes was the law for the wives of all the people — of those;of the higher as wеll as those of the lower rank. The language of the authority relied on by the learned counsel for the accused, clearly shows that there was a rank of the people excluded from its operation. Such partial laws can not be enforced in this State. The law for one rank is the lаw for all ranks of the people, without regard to station&wkey;-Judge Blackstone calls it merely an ancient privilege, and quotes no decidéd case, and possibly none such could then be found, which supports the privilege referred to by him, as an universal law. This distinguishеd author published his commentaries above one hundred years ago, when society was much morе rude, out of the towns and cities in England, than it is at the present day in this country; and the exercise of a rude privilege there is no excuse for a like privilege here. If it was, the offense of witchcraft аnd sorcery, which were crimes at common law, and most cruelly punished against the voice- of both reason and religion, might be indicted here. — 4 Bl. Com. p. 60. Since then, however, learning, with its humanizing influences, has mаde great progress, and morals and religion have made some progress with it. Therefore, a rоd which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjectiоn to the husband. The husband is therefore not justified or allowed by law to use such a weapon, or any other, for her moderate correction. The wife is not to be considered as the husband’s slave. And thе privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her facе or kick her about the floor, or to inflict upon her *147like indignities, is not now acknowledged by our law.— Turner v. Turner, 44 Ala. 437; Goodrich v. Goodrich, 44 Ala. 670 ; Moyler v. Moyler, 11 Ala. 620 ; Saunders v. Saunders, 1 Rob. Ec. R. 549. The husband may defend himself, his children, and those relations ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍whom the law permits him to defend, against the violence of the wifes¿ 12 Ala. 587; 1 Bish. Cr. Law, 341. But in person, the wife is entitled to the same protection of the law that the husband can invoke for himself. She is a citizеn of the State, and is entitled, in person and in property, to the fullest protection of its laws. Her sex does not degrade her below the rank of the highest in the commonwealth. •

Speaking of the duty of thе 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 wisеly and justly extended the protective power of the State to all its people alike. Ifсshield is stretched out over the high and the low, the rich and the poor, the strong and the weak, the wise аnd 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 pеople 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, аnd never was a law.

The husband may exercise over the wife “gentle re*148straint.” — 2 Kent, 181. And he may have security of the peace against the wife, and the wife against him. — 4 Bla. Com. 445. And they may be indicted for assault and battery upon each other. — Bradley v. The State, Walker R. 156. But beyond this, “ the rule оf love has superseded the rule of force.” — Schoul. Dom. Rel. 59.

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.

Peck, C. J., dissenting.