Unknown County MsArchives Court.....Bradley, Calvin 1834
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:42 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

CALVIN BRADLEY vs. THE STATE.

pages 156-157

A husband may be convicted of an asSault and battery upon his wife.

By the ancient common law, the husband possessed the power of chastising his 
wife.

Perhaps the husband should still be permitted to exercise the right of 
moderate chastisement, in cases of great emergency, and tO use salutary 
restraints in every case of misbehavior, without subjecting himself to 
vexatious prosecutions, resulting in the discredit and shame of all parties 
concerned.

OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS. 

This cause was tried in the circuit court before the honorable judge Turner, 
at the April term of 1824. The defendant was indicted for a common assault and 
battery, and upon his arraignment, pleaded not guilty, —son assault demesne, 
and that Lydia Bradly was his lawful wife &c. Issue was taken upon all the 
pleas. After the evidence was submitted, and before the jury retired, the 
counsel for the defendant moved the court to instruct the jury. If they 
believed the person named in the bill of indictment, and upon whom the assault 
and battery was committed, was the wife of the defendant, at the time of the 
assault and battery, -that then and in such case they could not find the 
defendant guilty. The court refused to give the instructions prayed for by the 
defendant, and charged the jury, that a husband could commit an assault and 
battery on the body of his wife, to which opinion of the court, a bill of 
exceptions was filed, and the case comes up by writ of error upon petition.

The only question submitted for the contsideration of the court, is, whether a 
husband can commit an assault and battery upon the body of his wife. This, as 
an abstract proposition, will not admit of doubt. But I am fully pursuaded, 
from the examination I have made, an unlimited licence of this kind cannot be 
sanctioned, either upon principles of law or humanity. It is true, according 
to the old law, the husband might give his wife moderate correction, because 
he is answerable for her misbehaviour; hence it was thought reasonable, to 
intrust him, with a power, necessary to restrain the indiscretions of one, for 
whose conduct he was to be made responsible. Strange, 478, 875; 1 H. P. C. 
130. Sir William Blackstone says, during the reign of Charles the first, this 
power was much doubted.—Notwithstanding the lower orders of people still 
claimed and exercised it as an inherent privilege, which could not be 
abandoned, without entrenching upon their rightful authority, known and 
acknowledged from the earliest periods of the common law, down to the present 
day. I believe it was a a case before Mr. Justice Raymond, when the same 
doctrine was recognised, with proper limitations and restrictions, well suited 
to the condition and feelings of those, who might think proper to use a whip 
or rattan, no bigger than my thumb, in order to inforce the salutary 
restraints of domestic discipline. I think his lordship might have narrowed 
down the rule in such a manner, as to restrain the exercise of the right, 
within the compass of great moderation, without producing a destruction of the 
principle itself. If the defendant now before us, could shew from the record 
in this case, he confined himself within reasonable bounds, when he thought 
proper to chastise his wife, we would deliberate long before an affirmance of 
the judgment.

The indictment charges the defendant with having made an assault upon one 
Lydia Bradly, and then and there did beat,  bruise, &c.—and the jury have 
found the defendant guilty, which never could have taken place, if the 
evidence supported either the second or third pleas of the accused. It was not 
necessary for the defendant below to introduce his second and third pleas, as 
we think he could have made a full and ample defence, upon the same matter, 
under the plea of the general issue. However abhorrent to the feelings of 
every member of the bench, must be the exercise of this remnant of feudal 
authority, to inflict pain and suffering, when all the finer feelings of the 
heart should be warmed into devotion, by our most affectionate regards, yet 
every principle of public policy and expediency, in reference to the domestic 
relations, would seem to require, the establishment of the rule we have laid 
down, in order to prevent the deplorable spectacle of the exhibition of 
similar cases in our courts of justice. -Family broils and dissentions cannot 
be investigated before the tribunals of the country, without casting a shade 
over the character of those who are unfortunately engaged in the controversy. 
To screen from public reproach those who may be thus unhappily situated, let 
the husband be permitted to exercise the right of moderate chastisement, in 
cases of great emergency, and use salutary restraints in every case of 
misbehaviour, without being subjected to vexatious prosecutions, resulting in 
the mutual discredit and shame of all parties concerned. Judgment affirmed.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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