Finlay, Q. C., and Forbes Lankester, for the wife. The wife is entitled to be set at liberty. A husband has no power by the law of England to imprison his wife if she refuses to live with him. Every confinement is an imprisonment by law, whether it be to one room or to one house. The contention for the husband would result in the reintroduction into society of private war; for the male relations of a wife would naturally, if at hand, be likely to resist her capture by the husband.

LORD HALSBURY, L. C. The Court has satisfied itself that, in refusing to go to and continue in her husband's house, Mrs. Jackson was acting of her own free will, and that she is not compelled or indeed, so far as present circumstances are concerned, induced by anyone to refuse to continue in his house, and was not compelled to remain where she was before he removed her. I confess that some of the propositions which have been referred to during the argument are such as I should be reluctant to suppose ever to have been the law of England. More than a century ago it was boldly contended that slavery existed in England; but, if anyone were to set up such a contention now, it would be regarded as ridiculous. In the same way, such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in respect of personal chastisement are not, I think, now capable of being cited as authorities in a court of justice in this or any civilized country. It is important to bear this in mind, for many of the statements, which have been relied upon, of a more moderate character and less outrageous to common feelings of humanity, are bound up with these ancient dicta to which I refer. The only justification, as it appears to me, for such expressions as are found in some of the old books is that afforded by the free translation given to them by HALE, C. J., who suggests that "castigatio" may be taken to mean admonition merely. Whether the word will bear that translation in these passages I cannot say; but I am glad that someone even at that early period thought it inconsistent with the rights of free human creatures that such a power of personal chastisement of the wife should exist. I only mention the subject, because it appears to me that the authorities cited for the husband were all tainted with this sort of notion of the absolute dominion of the husband over the wife. The only case referred to in which it was decided, as a question of law in an abstract form, unaccompanied by circumstances which might import a qualification, that a husband had a right to the custody of his wife, was Cochrane's Case. With regard to the proposition that the mere relation of husband and wife gives the husband complete dominion over the wife's person, apart from any circumstances of misconduct or any acts amounting to a proximate approach to misconduct on her part, which would give the husband a right to restrain her, none of the authorities cited appear to me to establish that proposition. I do not mean to lay it down as the law that there may not be some acts, acts of proximate approach to some misconduct, which might give the husband some right

of physical interference with the wife's freedom-for instance, if the wife were on the staircase about to join some person with whom she intended to elope, I could understand that there might be to some extent a right to restrain the wife. It is not necessary, however, on the present occasion to discuss that question.

The husband's contention is that, whereas the Court never had the power to seize and hand over the wife to the husband, but only the power to imprison her as for a contempt for disobedience of the decree for restitution of conjugal rights, and even that power has been now taken away, the husband may himself of his own motion, if she withdraws from the conjugal consortium, seize and imprison her person until she consents to restore conjugal rights. I am of opinion that no such right exists or ever did exist. . . . I confess to regarding with something like indignation the statement of the facts of this case, and the absence of a due sense of the delicacy and respect due to a wife whom the husband has sworn to cherish and protect. . . . The result is, in my opinion, that there is no power by law such as the husband claims to exercise, and, if there were, the facts give ample ground to the lady to apprehend violence in the future. Either of these grounds is sufficient to show that the return to this writ is bad, and that this lady shall be restored to her liberty.

LORD ESHER, M. R. and that the husband has so custody of this lady to him.

I agree that the return to the writ is bad, acted that we ought not to give back the

FRY, L. J. . . . I agree in the result at which the Lord Chancellor and the Master of the Rolls have arrived on the ground that the right set up by the husband does not exist by the law of England.

729. HERBERT SPENCER. Justice: Being Part IV of The Principle of Ethics. (Appleton ed., 1891, p. 161). Chap. XX. The Rights of Women. . . . Respecting powers of control [between husband and wife] over one another's actions and over the household, the conclusions to be drawn are still more indefinite. The relative positions of the two as contributors of monies and services have to be taken into account, as well as their respective natures; and these factors in the problem are variable. When there arise conflicting wills of which both cannot be fulfilled, but one of which must issue in action, the law of equal freedom cannot, in each particular case, be conformed to; but can be conformed to only in the average of cases. Whether it should be conformed to in the average of cases must depend on circumstances. We may, however, say that since, speaking generally, man is more judicially-minded than women, the balance of authority should incline to the side of the husband; especially as he usually provides the means which make possible the fulfilment of the will of either or the wills of both. But in respect of this relation, reasoning goes for little; the characters of those concerned determine the form it takes. The only effect which ethical considerations are likely to have is that of moderating the use of such supremacy as eventually arises. . . . Let us look now at the stages through which usage and law have grown into conformity with ethics. Save among the few primitive peoples who do not preach the virtues called Chris

tian but merely practise them save among those absolutely peaceful tribes here and there found who, while admirable in their general conduct, treat their women with equity as well as kindness, uncivilized tribes at large have no more conception of the rights of women than of the rights of brutes. . . . When we read of a Fijian that he might kill and eat his wife if he pleased; of the Fuegians and wilder Australians that they sacrificed their old women for food; and of the many peoples among whom women are killed to accompany their dead husbands to the other world; we see that they are commonly denied even the first of all rights. The facts that in these low stages women, leading the lives of slaves, are also sold as slaves, and, when married, are either stolen or bought, prove that no liberties are recognized as belonging to them. And on remembering that where wives are habitually considered as property, the implication is that independent ownership of property by them can scarcely exist, we are shown that this further fundamental right is at the outset but very vaguely recognized. . . . Speaking generally, in rude societies where among men aggression is restrained only by fear of vengeance, the claims of women are habitually disregarded. . . . Along with the modern growth of free institutions characterizing predominant industrialism the positions of women have been with increasing rapidity approximated to those of men.

Topic 2. Child

730. KEIT'S CASE. (169-. 6 Salk. 47.) A master may justify the beating his apprentice, servant, scholar, etc., if the beating is in nature of correction only, and with a proper instrument, otherwise immoderate castigavit is a good reply. And so it was adjudged in Keits' case, per HOLT, Ch. Just. Assault and Battery; the defendant justified, for that the plaintiff was his apprentice, and that he tempore quo, etc., gave him gentle correction, and traversed that he was guilty at any time before or after he was his apprentice; and upon a demurrer to this plea it was adjudged ill, because the defendant ought to shew some cause specially, or the fault for which he beat his apprentice, and then conclude absque hoc that he beat him before or after that time.

731. JOSEPH STORY. A Selection of Pleadings in Civil Actions. (2d ed., 1829, 543.) . . . And as to the assault and beating aforesaid, the same D. says (actio non) because he says that he, long before the said time, and at the time of the said supposed trespass, was commorant at &c. aforesaid, and was a schoolmaster there, to teach and inform in the art of reading such as came to him the said D. for learning and information of this kind; and that the plaintiff, a long time before the time of the said supposed trespass, and at the time thereof, was a scholar of him the said D. at &c. aforesaid, frequenting and attending the said school for learning and information aforesaid, in the art aforesaid; and because the same D., at the time of the said supposed trespass, discovered the plaintiff seizing and impeding his schoolmates from their learning, and disapproved of it, the said D. then and there took the plaintiff and held him up, and with a rod called a birchen rod, for the purpose of chastising and correcting him, beat him on his naked back, as it was lawful for him to do, which taking, holding up, and beating with the rod aforesaid, were the same assault and beating whereof the plaintiff above in manner aforesaid complains against him; all and singular which the same D. is ready to verify: Wherefore he prays judgment, if the plaintiff his action, &c.

732. MARGARET CLASEN v. AUGUSTA PRUHS

SUPREME COURT OF NEBRASKA.

69 Nebr. 278, 95 N. W. 640

1903

ERROR to the District Court for Lancaster County: ALBERT J. CORNISH, District Judge. Affirmed.

Thomas J. Doyle and George W. Berge, for plaintiff in error.

Jesse B. Strode and Edmund C. Strode, contra.

OLDHAM, C. This suit was prosecuted by the plaintiff below, a minor, by her next friend, to recover damages for alleged inhuman and cruel treatment suffered while in the care and custody of the defendant. It appears from the record that when plaintiff was about six years of age, she came with her brother from her home in Germany, with the consent of her parents, to make her home with the defendant, who was her maternal aunt, and resided near Hallam, Nebraska; that she remained under the care and protection of the defendant for six or seven years, when the defendant took her back to her parents in Germany and left her there. The following year the plaintiff returned with her parents to America and located near Hallam, and shortly after her return this cause of action was instituted. The allegations of inhuman treatment are that plaintiff was cruelly and unnecessarily tortured, beaten and whipped on numerous occasions and improperly clothed and fed by defendant while under her care and custody, and that such treatment resulted in permanent injuries to her health and growth; all of which was denied by the defendant. It is admitted that during the time the plaintiff lived with the defendant the relationship and authority of defendant over the plaintiff was that of parent over a child. So that the only question at issue in the case was as to whether the plaintiff was subjected to inhuman and brutal treatment in excess of the authority properly reposed in the defendant during the time defendant stood in loco parentis to the child. The testimony in the case is exceedingly voluminous and on many points is sharply conflicting. The trial resulted in a verdict and judgment for plaintiff in the sum of $2,000, and defendant brings error to this court.

In the 6th paragraph [of the trial judge's] the jury are told: "One possessed of the duty of rearing a child has a right to give it moderate correction and punishment in a reasonable manner for the child's benefit, for its education and discipline." . . . The objection, however, which is seriously and forcibly urged against these instructions is that they take a too much restricted view of the right of a parent (or one in loco parentis) to administer corporal punishment to a child. It is said in the brief that these instructions substitute the judgment of the jury for the judgment of the parent, in determining the necessity and extent of the punishment that may be administered

for the good of the child. It is further urged that a parent ought to be considered as acting in a judicial capacity when he corrects his child, and should not be held liable, even if the punishment should appear to the triers of fact to be unreasonably severe and in no measure proportionate to the offence; that the only instance in which a parent should be held liable for the punishment of a child is when he acts in bad faith and from wicked impulses, and when the punishment is of such a nature as to seriously injure the life, limbs or health of the child. An instruction embodying this view of the law was requested by defendant and refused by the Court, and the 4th, 5th and 6th instructions, above set out, were given in its stead.

That much of the welfare of society rests on the proper exercise of parental authority is self-assertive, but that there is and should be a reasonable limitation on the right of parents to punish their offspring is an elemental principle of modern civilization. The question then is, what is the right, and what the proper limitation of the right, and who shall judge when the right has been exceeded? A parent, teacher or master is not liable either civilly or criminally for moderately correcting a child, pupil or apprentice, but it is otherwise if the correction is immoderate and unreasonable. 1 Clark & Marshall, Law of Crimes, 433; 1 McClain, Criminal Law, sec. 242; 3 Greenleaf, Evidence (16th ed.), sec. 63; 1 Wharton, Criminal Law (10th ed.), sec. 631. In fact, this rule seems to be universally recognized by the Courts of this country. If the authority to punish be limited by reason and moderation, who, then, on sound principles, should determine whether such authority has been used in excess of its proper limits, the parent administering the punishment, or the triers of fact in a court where complaint has been made?

While some authority is cited tending to support the theory that, where the punishment falls short of maiming or disfiguring the body or seriously injuring or endangering life and health, the judgment of the parent is final and he can not be held to answer, unless it is proved that the punishment was maliciously inflicted - the leading case in support of this doctrine being State v. Jones, 95 N. Car. 588, 59 Am. Rep. 282-yet the great weight of American authority seems to be that whether or not the parent, guardian or schoolmaster has administered unreasonable, unnecessary and cruel punishment to a child under his care, is a question of fact to be determined by a jury. 21 Am. & Eng. Ency. Law (1st ed.), 771; Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156; Hinkle v. State, 127 Ind. 490, 26 N. E. 777; Fletcher v. People, 52 Ill. 396; Johnson v. State, 21 Tenn. 283, 36 Am. Dec. 322; State v. Washington, 104 La. 443, 81 Am. St. 141; Patterson v. Nutter, 78 Me. 509, 57 Am. Rep. 818; Commonwealth v. Randall, 70 Mass. 36. It would, therefore, seem that the learned trial Court followed the trend of a long line of well-considered cases when he submitted to the jury the question of the reasonableness of the punishment inflicted,