fwiw.
On Tuesday, November 11, 2003, at 02:51 PM, andie nachgeborenen wrote:
> The text is a bit ambiguous.
>
>> --- jeffrey fisher <jfisher at igc.org> wrote:
>>> so, what does the otherwise clause mean, here?
>>> especially in the
>>> context of correcting women being like correcting
>>> slaves?
>>>
>
> Btw, there were no slaves in England in Blackstone's
> time. Blackstone lists four sourts of servants, none
> of them slaves. 1 Blackstone, sec 14
>
> Blackstone says:
>
> "As to the several sorts of servants: I have formerly
> observed1 that pure and proper slavery does not, nay
> cannot, subsist in England; such I mean, whereby an
> absolute and unlimited power is given to the master
> over the life and fortune of the slave. And indeed it
> is repugnant to reason, and the principles of natural
> law, that such a state should subsist any where. . .
> UPON these principles the law of England abhors, and
> will not endure the existence of, slavery within this
> nation: . . . And now it is laid down,4 that a slave
> or negro, the instant he lands in England, becomes a
> freeman; that is, the law will protect him in the
> enjoyment of his person, his liberty, and his
> property.,"
>
> Now the "correction" text as to wives is unclear,
> because he says there can be violence, but he approves
> moderate correction,a nd compares wivesto servants and
> children. The language that applies to servants seems
> to conte,plate some use of physical force by the
> master:
>
> "A MASTER may by law correct his apprentice or servant
> for negligence or other misbehavior, so it be done
> with moderation:20 though, if the master's wife beats
> him, it is good cause of departure.21 But if any
> servant, workman, or laborer assaults his master or
> dame, he shall suffer one year's imprisonment, and
> other open corporal punishment, not extending to life
> or limb.22"
>
> 1 Blackstone, sec 14
>
> That regarding children is more ambigious, but surely
> English law of the day approved corporal punishment
> for children:
>
> "THE power of a parent by our English laws is much
> more moderate [than in ancient Rome]; but still
> sufficient to keep the child in order and obedience.
> He may lawfully correct his child, being under age, in
> a reasonable manner;28 for this is for the benefit of
> his education."
>
> 1 Blackstone sec. 16.
>
> Spare the rod and spoil the child, etc.
>
>
> Blackstone at the end of the discussion of wives, says
> that: " "Yet the lower rank of people, who were always
> fond of the old common law, still claim and exert
> their ancient privilege: and the courts of law will
> still permit a husband to restrain a wife of her
> liberty, in case of any gross misbehavior." Apparently
> correction."
>
> Which seems to say that the lower classes assert their
> right to beat their wives, but the current law will
> only permit a restraint of liberty. Given the no
> violence language in the context of the restraint of
> liverty clause, I think the comparison to servants and
> children has to be read loosely, and Blackstone must
> be taken to say that whatever the lower classes say,
> and whatever the law was before King Charles II's day,
> the common law no longer permits wifebeating.
>
> So maybe I spoke over hastily when I said that
> Blackstone cannot be cited to show that the common law
> _never_ licensed wifebeating; there is a reading that
> it once did, but doesn't any more.
>
> jks
>
>
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