Prologue: Reva B. Siegel, "'The Rule of Love': Wife Beating as Prerogative and Privacy," Yale Law Journal, 106 (June 1996), pp. 2117-2207.

Introduction

       In the following article, Reva B. Siegal explores how legal understandings of marital relationships changed during the nineteenth and twentieth centuries in England and the United States, and how these understandings have shaped legislation, particularly the Violence Against Women Act.

       "The Rule of Love": Wife Beating as Prerogative and Privacy

       Reva B. Siegel *

CONTENTS

INTRODUCTION

        The Anglo-American common law originally provided that a husband, as master of his household, could subject his wife to corporal punishment or "chastisement" so long as he did not inflict permanent injury upon her.[1] During the nineteenth century, an era of feminist agitation for reform of marriage law, authorities in England and the United States declared that a husband no longer had the right to chastise his wife.[2] Yet, for a century after courts repudiated the right of chastisement, the American legal system continued to treat wife beating differently from other cases of assault and battery. While authorities denied that a husband had the right to beat his wife, they intervened only intermittently in cases of marital violence: Men who assaulted their wives were often granted formal and informal immunities from prosecution, in order to protect the privacy of the family and to promote "domestic harmony."[3] In the late 1970s, the feminist movement began to challenge the concept of family privacy that shielded wife abuse, and since then, it has secured many reforms designed to protect women from marital violence.[4] Yet violence in the household persists. The U.S. Surgeon General recently found that "battering of women by husbands, ex-husbands or lovers "[is] the single largest cause of injury to women in the United States.'"[5]   "Thirty-one percent of all women murdered in America are killed by their husbands, ex-husbands, or lovers."[6]

        The persistence of domestic violence raises important questions about the nature of the legal reforms that abrogated the chastisement prerogative. By examining how regulation of marital violence evolved after the state denied men the privilege of beating their wives, we can learn much about the ways in which civil rights reform changes a body of status law. In the nineteenth century, and again in the twentieth century, the American feminist movement has attempted to reform the law of marriage to secure for wives equality with their husbands. Its efforts in each century have produced significant changes in the law of marriage. The status of married women has improved, but wives still have not attained equality with their husbands -- if we measure equality as the dignitary and material "goods" associated with the wealth wives control, or the kinds of work they perform, or the degree of physical security they enjoy. Despite the efforts of the feminist movement, the legal system continues to play an important role in perpetuating these status differences, although, over time, the role law plays in enforcing status relations has become increasingly less visible.

        As this Article will show, efforts to reform a status regime do bring about change -- but not always the kind of change advocates seek. When the legitimacy of a status regime is successfully contested, lawmakers and jurists will both cede and defend status privileges -- gradually relinquishing the original rules and justificatory rhetoric of the contested regime and finding new rules and reasons to protect such status privileges as they choose to defend. Thus, civil rights reform can breathe new life into a body of status law, by pressuring legal elites to translate it into a more contemporary, and less controversial, social idiom.[7] I call this kind of change in the rules and rhetoric of a status regime "preservation through transformation," and illustrate this modernization dynamic in a case study of domestic assault law as it evolved in rule structure and rationale from a law of marital prerogative to a law of marital privacy.

        Parts I-III of this Article illustrate that as the nineteenth-century feminist movement protested a husband's marital prerogatives, the movement helped bring about the repudiation of chastisement doctrine; but, in so doing, the movement also precipitated changes in the regulation of marital violence that "modernized" this body of status law. A survey of criminal and tort law regulating marital violence during the Reconstruction Era reveals that the American legal system did not simply internalize norms of sex equality  espoused by feminist critics of the chastisement prerogative; instead, during the Reconstruction Era, chastisement law was supplanted by a new body of marital violence policies that were premised on a variety of gender-, race-, and class-based assumptions. This new body of common law differed from chastisement doctrine, both in rule structure and rhetoric. Judges no longer insisted that a husband had the legal prerogative to beat his wife; instead, they often asserted that the legal system should not interfere in cases of wife beating, in order to protect the privacy of the marriage relationship and to promote domestic harmony. Judges most often invoked considerations of marital privacy when contemplating the prosecution of middle- and upper-class men for wife beating. Thus, as I show, the body of formal and informal immunity rules that sprang up in criminal and tort law during the Reconstruction Era was both gender- and class-salient: It functioned to preserve authority relations between husband and wife, and among men of different social classes as well.[8]

        These changes in the rule structure of marital status law were justified in a distinctive rhetoric: one that diverged from the traditional idiom of chastisement doctrine. Instead of reasoning about marriage in the older, hierarchy-based norms of the common law, jurists began to justify the regulation of domestic violence in the language of privacy and love associated with companionate marriage in the industrial era. Jurists reasoning in this discourse of "affective privacy" progressively abandoned tropes of hierarchy and began to employ tropes of interiority to describe the marriage relationship, justifying the new regime of common law immunity rules in languages that invoked the feelings and spaces of domesticity. Once translated from an antiquated to a more contemporary gender idiom, the state's justification for treating wife beating differently from other kinds of assault seemed reasonable in ways the law of chastisement did not.[9]

        As the history of domestic violence law illustrates, political opposition to a status regime may bring about changes that improve the welfare of subordinated groups. With the demise of chastisement law, the situation of married women improved -- certainly, in dignitary terms, and perhaps materially as well. At the same time, the story of chastisement's demise suggests that there is a price for such dignitary and material gains as civil rights reform may bring. If a reform movement is at all successful in advancing its justice claims, it will bring pressure to bear on lawmakers to rationalize status-enforcing state action in new and less socially controversial terms. This process of adaptation can actually revitalize a body of status law, enhancing its capacity to legitimate social inequalities that remain among status-differentiated groups. Examined from this perspective, the reform of chastisement doctrine can teach us much about the dilemmas confronting movements for social justice in America today.

       With these concerns in mind, Part IV of this Article offers some reflections on the ways in which civil rights reform modernizes the structure of a status regime. Drawing on the account of chastisement's demise explored in the main body of the Article, I first explore the question from a historical standpoint, and then briefly examine the implications of this analysis for understanding the civil rights revolutions of the 1960s and 1970s.[10] Finally, I bring the substantive and methodological concerns of the Article to bear on the most recent civil rights reform affecting the regulation of domestic violence today: the Violence Against Women Act,[11] which provides a civil rights cause of action for victims of gender-motivated violence. The new federal statute treats intimate assaults such as rape and domestic violence as a problem of sex discrimination. But its scope has been sharply contested, raising questions about which acts of rape and domestic violence will be deemed "gender-motivated" within the meaning of the Act. By exploring conflicts over the new civil rights cause of action, I offer contemporary evidence that the rules and rhetoric governing intimate assaults are continuing to evolve in the face of recent civil rights initiatives.[12] In this analysis of the Violence Against Women Act, as throughout the Article, I seek to demonstrate why, if civil rights reform is to be effective, civil rights law must remain in critical dialogue with the evolving discourse of any status regime it aspires to disestablish.

        I.   Nineteenth-Century Abolition of Marital Chastisement

        By the old law, a husband might give his wife moderate correction . . . but it is declared in black and white that he may not beat her black and blue, though the civil law allowed any man on whom a woman had bestowed her hand, to bestow his fists upon her at his own discretion. The common people, who are much attached to the common law, still exert the privilege of beating their wives . . . and a woman in the lower ranks of life, if she falls in love with a man, is liable, after marriage, to be a good deal struck by him.

Gilbert Abbott Beckett, The Comic Blackstone (1869)[13]

Judge Blackstone . . . published his commentaries above one hundred years ago, when society was much more rude . . . 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 . . . . The wife is not to be considered as the husband's slave. And the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her  face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law.

        Fulgham v. State (Alabama 1871)[14]

        In the nineteenth century, a husband's prerogative to chastise his wife was discussed in tones both jocose and solemn, uneasy and outraged.[15] Underlying most conversation about the prerogative was a common assumption, articulated more frequently with the passage of time: that marital chastisement was a vestige of another world, an ancient legal precedent of increasingly uncertain legitimacy. Yet, precisely by reason of its lineage as an ancient prerogative of marriage, chastisement did not die an easy death. In the following sections, I situate the prerogative in the marital status regime of the common law, and then trace the evolving social mores and diverse forms of political protest that precipitated its doctrinal demise. I then examine in more detail two cases repudiating the prerogative in 1871, one from Massachusetts and the other from Alabama, in order to explore attitudes toward marital violence in this period. As this inquiry illustrates, a variety of gender-, class-, and race-based concerns shaped the regulation of marital violence during the Reconstruction Era, evidence that draws into question the social meaning of chastisement's demise.

A. The Right of Chastisement and Its Critics

        Until the late nineteenth century, Anglo-American common law structured marriage to give a husband superiority over his wife in most aspects of the relationship. By law, a husband acquired rights to his wife's person, the value of her paid and unpaid labor, and most property she brought into the marriage. A wife was obliged to obey and serve her husband, and the husband was subject to a reciprocal duty to support his wife and represent her within the legal system. According to the doctrine of marital unity,[16] a wife's legal identity "merged" into her husband's, so that she was unable to file suit without his participation, whether to enforce contracts or to seek damages in  tort. The husband was in turn responsible for his wife's conduct -- liable, under certain circumstances, for her contracts, torts, and even some crimes.[17]

        As master of the household, a husband could command his wife's obedience, and subject her to corporal punishment or "chastisement" if she defied his authority. In his treatise on the English common law, Blackstone explained that a husband could "give his wife moderate correction,"

for, as he is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet.[18]

        As Blackstone suggested, the master of the household might chastise his wife (or children or servants), but the prerogative was a limited one. A husband was not allowed to do violence to his wife, except as a means of "ruling and chastising" her. The authority Blackstone quoted in support of this principle was the writ of supplicavit -- a writ that allowed a wife to petition for court protection when her husband was threatening her with bodily harm. By the terms of the writ, a wife could ask the court to require her husband to provide a guarantee or security bond "that he will not do, or cause to be done, any harm or evil to her body, other than licitly and reasonably pertains to a husband for ruling and chastising his wife."[19]

        Writing in the late eighteenth century, Blackstone asserted that a husband had a right to chastise his wife. Yet he also took pains to qualify the prerogative, describing it as an antiquated practice that persisted primarily among the British lower classes:

But, with us, in the politer reign of Charles the Second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. 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 misbehaviour.[20]

        Blackstone's Commentaries played an important role in shaping American legal culture;[21] and the law treatises that began to appear in the United States during the early nineteenth century displayed a similar ambivalence about the chastisement prerogative. For example, Kent's Commentaries and Wharton's treatise on criminal law recognized the prerogative in qualified terms,[22] while America's first family law treatise -- authored by Tapping Reeve in 1816 -- voiced strong doubts about its continuing authority in the United States. Beginning his discussion with the warning that it was "difficult to ascertain, with exactness, what power the husband has over the person of his wife," Reeve proceeded to paraphrase Blackstone's account, interjecting the observation that "in Connecticut, it is not to be denied, that there are to be found brutal husbands who abuse their wives; but the right of chastising a wife is not claimed by any man; neither is any such right recognized by our law."[23] In general, it seems that the practice of wife beating was more  frequently addressed in popular culture[24] than in the published judicial decisions of the antebellum era. Yet cases in a number of states, particularly in the southern and mid-Atlantic regions, recognized a husband's prerogative to chastise his wife.[25]

        There were, however, a variety of social forces in antebellum America that combined to draw the legitimacy of the chastisement prerogative into question. Perhaps most prominently, corporal punishment was the subject of widespread social controversy in this period, with campaigns against the practice developing in a variety of contexts.[26] Reformers questioned the propriety of corporal punishment inflicted on prisoners and sailors;[27] the literature of the abolitionist movement graphically depicted slave whippings in order to dramatize the cruelty of slaveholding;[28] and experts on family life challenged the traditional use of corporal punishment in the rearing and education of children. A large and growing body of prescriptive literature now argued that parents and teachers should eschew corporal punishment in favor of more gentle methods of discipline.[29] Force, these experts argued, was an inefficacious method of instilling authority; instead, they advocated "relocating authority relations in the realm of emotion, and a conscious intensification of the emotional bond between the authority-figure and its charge" -- a strategem Richard Brodhead has dubbed "discipline through love."[30] This effort to inculcate authority through introjection of affective relations occurred as the family itself was undergoing a fundamental shift in social structure. With a growing number of men working outside the household, norms and practices of parenting began to focus on the relationship between mother and child rather than father and child. As idealized in the prescriptive literature of the middle class, the family emerged as a site of specialized domestic activities, presided over by a mother figure who dispensed affection and spiritual nurturance to husband and children alike.[31]

        As we will see, these changes in conceptions of authority and in family structure were in tension with the social norms of the common law and, over the course of the nineteenth century, would contribute to the reform of the chastisement prerogative, as well as many other marital status rules of the common law.[32] Yet, for all the public discussion of corporal punishment, talk  about wife beating during the antebellum era, and after, remained circumspect.[33]

        The first organized protest against wife beating did not challenge the husband's legal prerogative to inflict marital chastisement; it approached marital violence without even directly questioning the husband's authority over his wife. It was the antebellum temperance movement that first initiated public conversation about wife beating. As temperance advocates demonstrated the social evils of alcohol, they drew attention to the violence that drunken husbands so often inflicted on their families.[34] The movement's conventions, newspapers, poems, songs, and novels featured vivid accounts of women and children who had been impoverished, terrorized, maimed, and killed by drunken men.[35] Temperance protest was simultaneously radical and conservative in tenor. Condemning alcohol provided reformers an outlet for criticizing the social conditions of family life, in the name of protecting the sanctity of family life. Initially, at least, temperance activists preached one remedy for the family violence they so graphically depicted: prohibiting the sale of alcohol.

        Soon thereafter, a very different kind of challenge to wife beating was mounted by the woman's rights movement that grew out of temperance and abolitionist protests of the antebellum era. Although membership in this new reform initiative was relatively small, the group was well connected to social elites both within and outside government.[36] In 1848, when the woman's  rights movement held its first convention, it denounced the common law doctrines of marital status in a formal Declaration of Sentiments:

He has made her, if married, in the eye of the law, civilly dead.

He has taken from her all right in property, even to the wages she earns.

 . . . In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement.[37]

During the 1850s, woman's rights advocates organized numerous conventions throughout the Northeast and Midwest, published newspapers, and conducted petition campaigns seeking for women the right to vote and demanding various reforms of marriage law. And in time the movement did elicit a response. Legislatures and courts began to modify the common law of marital status -- first giving wives the right to hold property in marriage, and then the right to their earnings and the rudiments of legal agency: the right to file suit in their own names and to claim contract and tort damages.[38]

        The woman's rights movement differed from the temperance movement, both in its diagnosis of family violence and in the social remedies it proposed. As the Declaration of Sentiments illustrates, the chastisement prerogative figured prominently in the feminist movement's first challenge to the marital status rules of the common law. Woman's rights advocates protested the hierarchical structure of marriage; and, as they did so, they attacked the chastisement prerogative as a practical and symbolic embodiment of the husband's authority over his wife. The woman's rights movement thus broke with the temperance movement by depicting wife beating as a symptom of fundamental defects in the legal structure of marriage itself. The movement's 1848 Declaration of Sentiments identified chastisement as part of a political system of male dominance, an analysis that feminists continued to elaborate in the ensuing decades.[39]

        For woman's rights advocates, a structural diagnosis of male violence against women dictated a structural remedy. Beginning in the 1850s, a vocal minority in the movement argued that wives should be allowed to divorce drunken, violent husbands.[40] But if most woman's rights advocates were not ready to embrace the politically explosive demand for divorce, all were united in the view that state-sanctioned violence in the marriage relationship evidenced fundamental defects in its structure and proved the justice of women's demand to participate in the enactment and enforcement of the laws. They pointed to the chastisement prerogative and to gruesome reports of wife beating in the tabloid press as proof that women needed the vote and did not in fact receive "virtual representation" through male suffrage.[41] As one of the movement's newspapers argued in the 1870s, domestic violence exposed the "fiction of Woman's protection by man" and thus demonstrated "the necessity that women should have increased power, social, civil, legal, political and ecclesiastical, in order to protect themselves."[42] "These horrors," another writer contended, "result inevitably from the subjection and disfranchisement of women, just as similar outrages used to result from the subjection and disfranchisement of negroes. Equal Rights and Impartial Suffrage are the only radical cure for these barbarities."[43]

B. Formal Repudiation of the Right of Chastisement

        Over time, the American legal system did respond to these criticisms of wife beating. Decades of protest by temperance and woman's rights advocates, combined with shifting attitudes toward corporal punishment and changing gender mores, together worked to discredit the law of marital chastisement. By the 1870s, there was no judge or treatise writer in the United States who recognized a husband's prerogative to chastise his wife. Thus, when a wife beater was charged with assault and battery, judges refused to entertain his claim that a husband had a legal right to strike his wife; instead they  denounced the prerogative, and allowed the criminal prosecution to proceed.[44] In several states, legislatures enacted statutes specifically prohibiting wife beating; three states even revived corporal punishment for the crime, providing that wife beaters could be sentenced to the whipping post.[45]

        But it would be misleading to look to the repudiation of chastisement doctrine as an indicator of how the legal system responded to marital violence. As we will see, during the Reconstruction Era, jurists and lawmakers vehemently condemned chastisement doctrine, yet routinely condoned violence in marriage. And when the legal system did prosecute wife beating, it treated the crime as a deviant social act rather than as conduct recently condoned by law, selecting men for prosecution in ways that suggest that concerns other than protecting women animated the punishment of wife beaters.

        In short, while we can say that the American legal system repudiated the doctrine of marital chastisement by the end of the Civil War, the significance of this doctrinal development is far from self-evident. To illustrate the complex attitudes toward marital violence underlying formal repudiation of the prerogative, this section examines two opinions written in 1871 that repudiate the husband's prerogative to chastise his wife, one from Massachusetts and the other from Alabama.[46] It situates these opinions in a broader sociolegal context in order to suggest some of the gender-, class-, and race-based judgments shaping the regulation of marital violence in the wake of chastisement's demise.

        1. Relief for Battered Wives: Separation and Divorce

        We can begin by considering the repudiation of marital chastisement in Massachusetts, a relatively liberal jurisdiction where the woman's movement was well connected to social elites. The Massachusetts Supreme Court rejected a husband's prerogative to chastise his wife in the 1871 case of Commonwealth v. McAfee.[47] The husband in this case struck his inebriated wife several times on the cheek and temple; she fell, struck her head, and died. When prosecuted for manslaughter, the defendant requested the judge to instruct the jury ""that the husband had a legal right to administer due and proper correction and corporeal [sic] chastisement on his wife'";[48] but the trial judge refused. The Massachusetts Supreme Court affirmed, announcing that "beating or striking a wife violently with the open hand is not one of the rights conferred on a husband by the marriage, even if the wife be drunk or insolent."[49]

        Of course, the facts of the McAfee case provided the court with a congenial context in which to repudiate the right of chastisement. At no point had the right of "moderate correction" justified manslaughter; both before and after the demise of chastisement, the legal system prosecuted cases of aggravated assault resulting in the death of a wife or her severe injury.[50] In other circumstances, however, Massachusetts was considerably less responsive to the plight of battered wives. Massachusetts was a stronghold of woman's rights advocacy, yet the movement was unsuccessful in persuading authorities to adopt reform legislation protecting battered wives from abusing husbands. For example, after publicizing various "crimes against women" in the Woman's  Journal during the 1870s,[51] Lucy Stone led the editors of this Boston-based suffrage paper in a petition campaign to persuade the Massachusetts legislature to adopt a bill -- modeled after recent legislation in England -- that would have given battered wives protection from their husbands.[52] The proposed bill provided that when a husband was convicted of aggravated assault, his wife could apply to the court for an order "forbidding her husband to visit her without her permission, and giving her the custody of her minor children, and directing the officer of the court or the overseers of the poor to collect from the husband and pay to her a reasonable weekly allowance for support of the family."[53] The Massachusetts legislature rejected the petition, on the grounds that such legislation ""would be granting to police and district courts the power of decreeing divorce.'"[54] Instead, in 1879, the legislature adopted a law allowing courts to order a husband convicted of assaulting his wife to keep the peace, under a bond with penalties that the judge might waive at his discretion; the peace bond might be imposed in addition to, or in lieu of, other penalties for assault.[55]

        In rejecting the reform legislation advocated by the woman's movement and adopting this obviously ineffectual restraint on domestic violence, the Massachusetts legislature made explicit its hostility to remedies for domestic violence that might assist wives in separating from their husbands. In this era, Massachusetts did allow some wives to obtain a divorce on grounds of cruelty. Battered wives had to prove acts of violence amounting to "extreme cruelty," a standard that the state's courts construed quite restrictively. As the Massachusetts Supreme Judicial Court explained in 1867, "there may be personal violence which does not amount to what is regarded as cruelty; and . . . there may be cruelty without personal violence."[56] The court suggested that the class background of the woman petitioning for divorce was relevant to evaluating the merits of her cruelty claim: ""Among the lower classes, blows sometimes pass between married couples who in the main are happy, and have no desire to part. Amidst very coarse habits . . . a word and a blow go together.'"[57]

        In the decades after the Civil War, legislatures were expanding the statutory grounds for divorce, and judges charged with applying these statutory norms interpreted them ever more liberally. In most jurisdictions, a wider range of somatic harms now supplied evidence of "cruelty" as a grounds for divorce;[58] but, as Massachusetts law illustrates, courts gave sense to the concept in ways that drew upon gender- and class-based understandings of the marriage relationship. To demonstrate that she was entitled to a divorce, a battered wife typically had to prove that her husband acted with "extreme" and "repeated" cruelty.[59] A husband in turn could defeat his wife's divorce petition either by showing that she misbehaved in some way that "provoked" his violence, or by showing that she delayed petitioning for divorce and so forgave and "condoned" his violence.[60] In other words, nineteenth-century judges developed a body of divorce law premised on the assumption that a wife was obliged to endure various kinds of violence as a normal -- and sometimes deserved -- part of married life. Furthermore, as Massachusetts law illustrates, judges reasoned about the propriety of violence in the marriage relationship with attention to the economic status of the married couple, with the result that the evidence required to prove "extreme cruelty" varied by class, on the doctrinally explicit assumption that violence was a common part of life among the married poor.[61]

        The class-based assumptions about marital violence that shaped divorce law in this era also shaped the criminal law, but with very different regulatory consequences. While courts pointed to the prevalence of domestic violence among the "coarser" classes as a reason for restricting poor women's access to divorce, during the Reconstruction Era this same belief was offered as a reason for intensifying the criminal prosecution of poor men who beat their wives.

        2. Race and Class Bias in the Criminal Prosecution of Wife Beaters  

        In 1871, the year that the Massachusetts Supreme Judicial Court handed down the McAfee opinion, Alabama also repudiated the right of chastisement in the case of Fulgham v. State.[62] In Fulgham, an emancipated slave chastising one of his children was interrupted by his wife (also an emancipated slave), who thought the punishment inflicted on the child excessive; the husband then struck his wife twice on the back with a board. The husband was indicted on charges of assault and battery. On appeal, the Alabama Supreme Court allowed the prosecution, expressly repudiating the right of marital chastisement. The court reasoned that Blackstone "confines this brutal and unchristian "privilege' wholly to the "lower rank of the people.' . . . [However, s]uch partial laws cannot be enforced in this State, [where t]he law for one rank is the law for all ranks of the people, without regard to station."[63] The court then asserted that

Judge Blackstone . . . published his commentaries above one hundred years ago, when society was much more rude . . . 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 . . . . Since then, however, learning, with its humanizing influences, has made great progress, and morals and religion have made some progress with it. Therefore, a rod which may be drawn through the wedding ring is not now deemed necessary to teach the wife her duty and subjection 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 the privilege, ancient though it be, to beat her with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our law . . . . In person, the wife is entitled to the same protection of the law that the husband can invoke for himself . . . . Her sex does not degrade her below the rank of the highest in the commonwealth.[64]

        This powerful statement of sex and class equality creates a refreshing point of contrast with Massachusetts cruelty doctrines; yet it also raises a new set of questions. Simply put: Why was it that Alabama authorities showed such solicitude for the plight of this recently emancipated freedwoman -- especially given the prevailing assumption that violence was a common part of life among the married poor? Was it to ensure that the woman was not treated like a "slave," or to prevent her recently emancipated husband from asserting the "privileges" of a master? The question is worth asking, especially of an opinion authored by an ex-slaveholder.[65] Though the text of the Fulgham opinion addresses gender relations, the case seems to resonate with racial preoccupations.  

        In fact, Alabama was not the only Southern state to make an example of an African-American charged with beating his wife.[66] When the Supreme Court of Mississippi repudiated chastisement doctrine in the case of Harris v. State,[67] the case also involved a black man. On this occasion, the court obliquely addressed the racial concerns animating its decision:

The suggestion in the evidence of a belief among the humbler class of our colored population of a fancied right in the husband to chastise the wife in moderation makes it proper for us to say that this brutality found in the ancient common law, though strangely recognized in Bradley v. State, [1 Miss. (1 Walker) 156 (1824)], has never since received countenance; and it is superfluous to now say that the blind adherence shown in that case to revolting precedent has long been utterly repudiated, in the administration of criminal law in our courts.[68]

        Both Fulgham and Harris repudiate chastisement doctrine, but the opinions seem more interested in controlling African-American men than in protecting their wives.[69]

        During the Reconstruction Era, public interest in marital violence rose as wife beating began to shift in political complexion from a "woman's" issue to a "law and order" issue. Wife beating now attracted the interest of groups not known for their commitment to temperance or woman's rights causes. During this period, the Ku Klux Klan took an interest in punishing wife beaters (both white and black), and began to invoke wife beating as an excuse for assaults on black men.[70] In 1878, the transatlantic publication of Frances Cobbe's  expose of marital violence, Wife-Torture in England,[71] prompted efforts by woman's rights activists to secure enactment of legislation that would have assisted battered women in separating from their husbands;[72] but the article's critical discussion of an alternate remedy -- flogging wife beaters[73] -- apparently sparked more widespread interest. By the 1880s, prominent members of the American Bar Association advocated punishing wife beaters at the whipping post, and campaigned vigorously for legislation authorizing the penalty.[74] Between 1876 and 1906, twelve states and the District of Columbia considered enacting legislation that provided for the punishment of wife beaters at the whipping post. The bills were enacted in Maryland (1882), Delaware (1901), and Oregon (1906).[75]

        With this surge of interest in wife beating, the wife beater was demonized as a deviant character, whose criminal or licentious propensities authorities needed to control in order to secure social stability. Those who sought to revive corporal punishment for wife beating argued that wife beaters were an  especially brutal "type" impervious to normal social restraints; they claimed that the whipping post would deter wife beating because it was a mode of punishment to which even the most socially depraved would respond. For example, at a meeting of the Medico-Legal Society in 1899, the chief justice of Delaware urged, ""Nothing acts upon the perceptions and motives of a brutalized man like whipping . . . . There are certain natures, some, it may be, irreclaimable, whose consciences and conduct can be best governed by the application of the rod.'"[76] Others at the meeting asserted that the whipping post was an efficacious means of controlling ""the vicious classes,'"[77] and recommended it for punishing youths, ""wife-beaters, assaulters of very young girls and all habitual criminals,'" as ""the only punishment to which [they] would readily respond, and through which their sense of obligation to society could be aroused.'"[78] In this view, the wife beater needed to be physically dominated -- his manhood broken -- in order to be subject to social control. As the Reverend Phebe Hanaford explained:

We may well assume that the wife-beater does not like bodily pain, and a short time spent at the whipping-post -- he being compelled to be passive, and some other man with strong muscles vigorously active, -- the wife-beater learns two lessons: one, how it feels to be beaten, and the other, that the law will not allow him to whip his wife without inflicting the same upon himself. The wife will not be likely to receive a second beating.[79]

        While advocated for the purpose of protecting women, the appeal of the whipping post lay in its capacity to break men. The gender symbolism of wife beating, reenacted at the whipping post, now articulated class and racial conflict among men. As Clark Bell concluded his case for adopting the whipping post in New York: "I am unable to find any record of one white man who has ever come back to the whipping-post for beating his wife."[80]

        As wife beating emerged as a "law and order" issue, class- and race-based discourses about marital violence became even more pronounced. In the years before and after the Civil War, Susan B. Anthony and Elizabeth Cady Stanton publicized the cases of wealthy and prominent men who had beaten their wives.[81] But while members of the social elite were certainly aware of marital violence within their ranks,[82] in the closing decades of the nineteenth century, commentators increasingly depicted wife beating as the practice of lawless or unruly men of the "dangerous classes."[83] Statistics on arrests and convictions for wife beating in the late nineteenth century suggest that while criminal assault law was enforced against wife beaters only sporadically, it was most often enforced against immigrants and African-American men. In Northern states, members of immigrant ethnic groups (e.g., German- and Irish-Americans) were targeted for prosecution;[84] in the South, African-Americans were singled out for prosecution in numbers dramatically exceeding their representation in the population.[85] While marital violence may well have been  more prevalent among the poor, the tenor of public conversation about wife beating makes clear that concerns other than simple regard for battered women animated the prosecutions.[86] By the 1890s, the conception of wife beaters was sufficiently racialized that the Louisiana and South Carolina constitutions listed it among the crimes warranting disenfranchisement;[87] the author of a 1901 Alabama constitutional provision disenfranchising criminals ""estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes.'"[88] This episode in constitutional reform creates a rather sorry capstone to the egalitarian commitments espoused in the Fulgham opinion.

        Thus, as the American legal system repudiated the husband's prerogative to chastise his wife, it did begin to respond differently to wife beating -- yet did  not adopt policies calculated to provide married women much relief from family violence. Women of the social elite might escape husbands who beat them by obtaining a divorce, if they were not deemed blameworthy, and if they were willing to subject themselves and their children to the economic perils and social stigma associated with single motherhood. Women of poorer families might have a husband fined, incarcerated, or perhaps even flogged, if they were willing to turn him over to a racially hostile criminal justice system.[89] The law thus provided relief to some battered wives, but the majority had little recourse against abusive husbands.

        We are left with a striking portrait of legal change. Jurists and lawmakers emphatically repudiated the doctrine of marital chastisement, yet responded to marital violence erratically -- often condoning it, and condemning it in circumstances suggesting little interest in the plight of battered wives. Given this record, how are we to make sense of chastisement's demise? Woman's rights advocacy may have helped to discredit the prerogative, but the regulatory regime that emerged in its wake belies the notion that the legal system simply internalized the norms of sex equality that the movement advocated. We need, then, to scrutinize more closely the social assumptions prompting the repudiation of chastisement doctrine to make sense of the policies on marital violence that emerged in its wake.

II. REGULATING MARITAL VIOLENCE IN AN ERA OF COMPANIONATE MARRIAGE

        As we have seen, formal repudiation of the chastisement prerogative did not necessarily express a commitment to protect women from husbands who beat them. Yet the demise of the common law doctrine did seem to signal an important shift in conceptions of marriage. In 1892, a Kentucky court described the husband's prerogative to chastise his wife as a "relic" of a long-gone era:

[U]nder modern legislation, as well as judicial opinions, that fiction of legal unity by which the separate existence of the wife in a legal sense is denied is exploded. Her person is as sacred as that of the husband, and the protection afforded by law to the one should not be denied to the other . . . . [T]o say that a court of law will recognize in the husband the power to compel his wife to obey his wishes, by force if necessary, is a relic of barbarism that has no place in an enlightened civilization.[90]

        Similarly, in the Reconstruction-era opinions we have examined, judges emphatically and with near univocality condemned chastisement doctrine, calling it variously "a rude privilege," a "brutality found in the ancient common law," and a "revolting precedent."[91] Exactly what kind of change in the law of marital status did repudiation of chastisement doctrine portend?

        As the Kentucky court suggested, the demise of chastisement was linked to wider changes in the law of marital status -- in particular, to statutory reform of the doctrine of marital unity and the rule of gender hierarchy that it embodied. By mid-century, under the pressure of woman's rights advocacy, state legislatures had begun to enact legislation reforming the status incidents of marriage; over the course of the century, these married women's property acts gradually transformed a marital regime in which a husband ruled and represented his wife into one predicated in significant part on the juridical individuality of its partners.[92] Corporal punishment was an integral part of a regime of mastery; it made less sense as an element of the marriage relationship as the relationship in which it was situated became more egalitarian in character.

        But there is evidence that chastisement's demise began well before the rise of feminist agitation. As we have seen, neither Blackstone nor the American treatise writers who followed him in the nineteenth century were entirely  confident of the continuing legitimacy of the chastisement prerogative.[93] An examination of the treatises suggests that the chastisement prerogative was undermined by changing conceptions of marriage that may well have contributed to the reform demands of the feminist movement and, in a measure, eased their reception.[94]

        As early as 1816, Tapping Reeve, author of the first American treatise on family law, observed that there was a tension between the chastisement prerogative and prevailing mores of the family. Reeve offered his diagnosis of the problem in the form of a gloss on Blackstone. Paraphrasing the Commentaries,[95] Reeve observed that in England, "the husband seems to have had the same right over the person of his wife, that he had over the person of his apprentice; to chastise her moderately or confine her; a right still claimed and enforced in that country, among the lower ranks of society";[96] but under the reign of Charles II,

wives began to receive a more liberal treatment. Their rights were better understood than heretofore. They assumed more the character of companions than of servants to their husbands. Their claims to exemption from the operation of the before mentioned principles have gained additional strength from the increased refinements of modern times.[97]

 Echoing Reeve in 1870, a prominent family law treatise by James Schouler also invoked the concept of companionate marriage to explain the demise of chastisement doctrine:  

In a ruder state of society the husband frequently maintained his authority by force . . . . But [in recent times] the wife has been regarded more as the companion of her husband; and this right of chastisement may be regarded as exceedingly questionable at the present day. The rule of love has superseded the rule of force.[98]

        Neither Reeve nor Schouler asserted that the wife was an equal of her husband, but each took pains to emphasize that the marriage relationship was less hierarchical than Blackstone had presented it. Reeve defined the wife's  status as companion negatively -- as "not a servant." A half century later, Schouler went further, describing companionate marriage as a relationship in which "the rule of love [had] superseded the rule of force."[99]

        The vision of companionate marriage embraced by these treatise writers falls short of the egalitarian ideal endorsed by the nineteenth-century woman's rights movement,[100] and yet bears a closer resemblance to it than to the hierarchical relationship contemplated by the marital status rules of the common law. In Blackstone's world, the rights of persons in private relations resembled the rights of persons in public relations, with both described in terms of "gradations of hierarchy . . . and of the peculiar privileges and disabilities that went along with particular roles."[101] The household remained patriarchal in form, "a little commonwealth" in which the master ruled the members (wife, children, servants, etc.) and represented them in the larger commonwealth.[102] Family and state stood in homologous relation, with authority relations structuring the polity from top to bottom.

        The vision of companionate marriage summoned by Schouler and others is of a fundamentally different order. In this emergent, idealized conception at least, affect links household members, not authority. And so, as the treatise writers explain it, the rise of companionate marriage undermined the authority-based marital status regime of the common law, and with it, the master's prerogative to chastise his wife.

        Yet historical change rarely occurs in such neat patterns. Companionate understandings of marriage emerged only gradually, producing conflicts and contradictions in the norms structuring marriage that endured for centuries.[103]   If one examines the prescriptive literature on marriage written during the nineteenth century, one finds rich evidence that, for most of the century, Americans understood marriage as a relationship organized in terms of authority and affect. These tracts provide a revealing glimpse of the hybrid and conflicting norms that defined marriage during the period of chastisement's demise.

        Popular tracts on marriage written in the opening decades of the century still invoked the authority-based norms of the common law, which, however, they sought to temper by emphasizing the importance of affection and respect in the marital relationship. In 1837, for example, William Alcott began his account of the "duties of the woman in the marriage relation" with a chapter on "Submission." While protesting that he "would be the last person in the world to justify a tyrannical assumption of superiority on the part of our own sex" and advising that men assert their claims "in the most gentle manner," Alcott nevertheless asserted that "reason, nature and revelation" united in placing "the balance of concession" in the marriage relationship on women, adding that "the more cheerful and voluntary the submission, the happier the results . . . . Perhaps there is no one thing on which domestic happiness so much depends as this . . . ."[104] In this era, women who offered marital advice spoke even more forthrightly about the wife's status as a subordinate member of the relationship.[105]

        Yet over the course of the century, the prescriptive literature on marriage began to talk about the relationship in terms that diverged ever more dramatically from the common law. In the 1850s, for example, William Alcott described the authority relations of marriage in considerably more oblique terms. Now he presented a wife's submission as altruism, and service to others as woman's path to self-fulfillment: "However elevated the character of woman -- however influential she may be, and however great the duties she owes to herself to qualify herself for fulfilling her mission -- she will do most for herself while laboring most for others."[106] By 1883, Eunice Beecher, wife of the Reverend Henry Ward Beecher, was forthrightly criticizing the  authority-based conception of marriage, going so far as to assert that the "word 'govern' should never be shown in word or act -- never enter the heart between husband and wife."[107] Beecher warned that a husband should not expect his "will to be the controlling motive for his wife's conduct" or assert his ""rightful authority as head of the house'" if he wished for marital bliss, observing: "If all could fully realize the true difference between the service rendered by woman to authority and that poured out unceasingly, spontaneously, for love, what a difference would be found in many homes!"[108] Yet Beecher did not squarely reject a husband's role as "head of the house" or the wife's role in providing "service" to him; instead she discussed these traditional marital roles in a new idiomatic framework. Beecher waxed eloquent as she depicted a home "governed" by love, inveighing against an authority-based conception of marriage but then reproducing the structures of marital authority within the discourse of marital affect:

A home governed by . . . gentle influences, is to a home governed by man's authority, as a person is to a machine. One is life; the other only mechanism . . . . In such homes -- and we verily believe it rests more with husbands than with wives to build them up -- the thought of supremacy never intrudes. Marriage in such homes is a true union, each mutually helping the other, bound together with united love and confidence; the husband's manifested by unremitted care and tenderness; the wife's, as is woman's nature, by that devoted service which is most happy in ministering to the comfort and pleasures of her household. She willingly acknowledges him as the head, in so far as deciding any matter for the home welfare -- where their opinions are not quite in unison -- and in all that naturally comes under his especial care and supervision. But she yields -- not through authority, but love.[109]

        "But she yields -- not through authority, but love." Over the course of the nineteenth century, an authority-based conception of marriage evolved into an affect-based conception of the relationship in which husband and wife were united and positioned by a different kind of bond. The status structure of the relationship survived this transformation but was also shaped by it. As conversation about marital relations shifted from the framework of obedience and submission to that of asking and giving, the domestic relation began to take its character, not from the husband's ability to compel his wife's obedience, but instead from the wife's magnanimity in yielding to his desires. Differently put, it was not the husband's authority that defined the nature of marriage so much as the wife's altruism.

        The erosion of authority-based conceptions of marriage can be understood as a part of the decline of status relationships associated with feudal and monarchical societies; but the conventional "status to contract" story told about the nineteenth-century reform of marriage law obscures as much as it reveals about the evolution of the marital relationship in the modern era.[110] Social contract theorists never applied concepts of individualism to the family with the confidence that they applied them to market and state relationships;[111] instead, with the rise of liberalism, it became commonplace to define the family in terms of its differences from other social relationships. Countless nineteenth-century accounts of the home depict the family as fundamentally distinct from other spheres of social life, a domain in which altruism and other-regard prevailed, rather than self-interested individualism. For example:

"We go forth into the world, amidst the scenes of business and of pleasure; . . . we join the busy crowd, and the heart is sensible to a desolation of feeling: we behold every principle of justice and of honor, and even the dictates of common honesty disregarded, and the delicacy of our moral sense is wounded; we see the general good, sacrificed to the advancement of personal interest; and we turn from such scenes, with a painful sensation, almost believing that virtue has deserted the abodes of men; again, we look to the sanctuary of home; there sympathy, honor, virtue, are assembled; there the eye may kindle with intelligence, and receive an answering glance; there disinterested love, is ready to sacrifice every thing at the altar of affection."[112]

        "Disinterested love" and "affection" differentiated the family relation from all other social relationships. Precisely as nineteenth-century America embraced norms of possessive individualism, it demanded that the family serve as a  "sanctuary" or "haven in a heartless world," providing a refuge from the ethos of market capitalism.[113]

        It was this set of changes in popular conceptions of marriage that treatise discussions of chastisement register, and that the feminist movement exploited in its assault on the marital status doctrines of the common law. By the 1840s, the woman's rights movement was protesting the husband's prerogative to chastise his wife, along with many other hierarchical features of marital status law.[114] Because chastisement so powerfully contradicted norms of companionate marriage, it provided an easy target for feminists interested in demonstrating the injustice of the common law. Thus, when the Declaration of Sentiments condemned chastisement in 1848, it merely pointed to the authority-based conception of marriage that chastisement enforced -- tacitly exploiting the dissonance between authority-based and affect-based conceptions of marriage to discredit the common law:

        He has made her, if married, in the eye of the law, civilly dead.

        He has taken from her all right in property, even to the wages she earns.

         . . .In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement.[115]

Or, as Sarah Grimke described the marriage relationship in 1855:

[Wives] have too soon discovered that they were unpaid housekeepers & nurses, & still worse, chattels personal to be used & abused at the will of a master . . . O! the agony of realizing that personal & pecuniary independence are annihilated by that "Law which makes the husband and wife one & that one is the husband."[116]

When Elizabeth Cady Stanton appealed to the New York legislature to reform the state's divorce laws in 1861, she self-consciously exploited the contradiction between sentimental conceptions of marriage and the violence that law condoned in the relationship:

Call that sacred, where woman . . . consents to live in legalized prostitution! her flesh shivering at the cold contamination of that embrace! held there by no tie but the iron chain of the law, and a false and most unnatural public sentiment? Call that sacred, where innocent children, trembling with fear, fly to the corners and dark places of the house, to hide from the wrath of drunken, brutal fathers, but forgetting their past sufferings, rush out again at their mother's frantic screams, "Help! oh, help!" Behold the agonies of those young hearts, as they see the only being on earth they love, dragged about the room by the hair of her head, kicked and pounded, and left half dead and bleeding on the floor! Call that sacred, where fathers like these have the power and legal right to hand down their natures to other beings, to curse other generations with such moral deformity and death!

         . . . Learn how false and cruel are those institutions, which, with a coarse materialism, set aside the holy instincts of the woman, to seek no union but one of love.[117]

        Playing on the disjuncture between the law of marriage and popular conceptions of the relationship was a common tactic of feminist protest[118] -- here deployed by Stanton to raise questions about divorce, marital rape,[119] and domestic violence. The cumulative effect of this kind of feminist protest was to imbue chastisement with symbolic significance, so that questions about its legitimacy implicated the entire marital status regime of the common law.[120] Together, evolving social norms and strategically focused protest undermined chastisement in a way that neither could alone.  

        From this standpoint, it is easier to appreciate why, by the Reconstruction Era, American authorities had unanimously repudiated marital chastisement, even if they continued to resist most reform demands of the woman's rights movement. If a judge believed that marriage ought be a relation of love, not force, he could denounce chastisement as a relic of a barbaric past -- without endorsing the equality norms and associated reform demands of the woman's rights movement. Indeed, if he believed that egalitarian norms of marriage were fundamentally misguided, he might still denounce the husband's chastisement prerogative in order to make the traditional authority structure of marriage easier to defend. In short, the repudiation of chastisement might reflect a commitment to affect-based, authority-based, or equality-based norms of marriage, or any ambivalent mixture thereof.

        So considered, it is easier to appreciate why the repudiation of chastisement did not entail any clear consequences for the regulation of violence in marriage. The demise of chastisement created a regulatory vacuum, a need for new policies to regulate violence in marriage that had yet to be devised -- and that would be devised from the conflicting marital norms we have been examining. We now turn to scrutinize the policies that emerged in the wake of chastisement's demise.

III. THE DISCOURSE OF AFFECTIVE PRIVACY IN DOMESTIC ASSAULT LAW

        But she yields -- not through authority, but love.

        Mrs. Henry Ward Beecher,

        The Home: How to Make and Keep It (1883)[121]

Mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive . . . . But when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life.

        State v. Rhodes (North Carolina 1868)[122]

Our law before today practiced a cruel paradox. Under the guise of promoting family harmony, it permitted the wife beater to practice his twisted frustrations secure in the knowledge that he was immune from civil action except for a divorce, and that any criminal penalty would ordinarily be a modest fine.

        Coffindaffer v. Coffindaffer (West Virginia 1978)[123]

         To this point we have examined how emerging notions of companionate marriage undermined the authority-based conception of marriage in which the chastisement prerogative was rooted. As the treatises register this conflict, it is stark and its results simple: The rise of companionate marriage discredited marital chastisement. And the cases do supply evidence supporting this view. For example, to justify its opinion finding an emancipated slave guilty of battery for beating his wife in Fulgham v. State,[124] the Supreme Court of Alabama announced that "the wife is not to be considered as the husband's slave . . . [and] . . . is entitled to the same protection of the law that the husband can invoke for himself";[125] it then proceeded to explain the husband's duty to the wife by quoting Schouler's treatise to the effect that a husband ""is bound to love his wife and to bear with her faults, and if possible, by mild means to correct them'"[126] and concluded its opinion with Schouler's observation that ""the rule of love has superseded the rule of force.'"[127]

        The Fulgham opinion endorses marriage as a relation of love and equality, and denounces the older, authority-based understandings of the common law. Yet the race- and class-based concerns shaping prosecution of wife beating in the Reconstruction Era[128] should caution us immediately against any simplistic construction of the case. Before we read Fulgham as a story about the triumph of affective or egalitarian conceptions of marriage over authority-based understandings of the relationship, we need to examine more carefully how the language of companionate marriage functioned in nineteenth-century opinions concerning the regulation of marital violence. As we will see, courts drew on the discourse of companionate marriage to craft a new body of domestic violence policies that operated, to a startling degree, in both a gender- and a class-salient manner.

        A key concept in the doctrinal regime that emerged from chastisement's demise was the notion of marital privacy. During the antebellum era, courts began to invoke marital privacy as a supplementary rationale for chastisement, in order to justify the common law doctrine within the discourse of companionate marriage, when rationales rooted in authority-based discourses of marriage had begun to lose their persuasive power. For example, in the 1824 case of Bradley v. State,[129] the Mississippi Supreme Court upheld the chastisement prerogative, citing Blackstone and then observing:

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.[130]

These early privacy-based chastisement opinions begin to rationalize the common law prerogative within the discourse of companionate marriage, sometimes in combination with rationales rooted in authority-based conceptions of marriage.[131] A judge reasoning about marriage as a companionate relationship could invoke values of marital privacy to justify giving wife beaters immunity from prosecution, much as he could invoke authority-based conceptions of marriage to justify giving husbands a formal prerogative to beat their wives. To quote a North Carolina chastisement opinion:

We know that a slap on the cheek, let it be as light as it may, indeed any touching of the person of another in a rude or angry manner -- is in law an assault and battery. In the nature of things it cannot apply to persons in the marriage state, it would break down the great principle of mutual confidence and dependence; throw open the bedroom to the gaze of the public; and spread discord and misery, contention and strife, where peace and concord ought to reign. It must be remembered that rules of law are intended to act in all classes of society. [132]

Significantly, as this North Carolina case invokes privacy as a justification for chastisement, it mentions the cross-class applicability of the chastisement rule, as if to say, "remember, if we abolish the prerogative, this would authorize courts to inquire into marital violence "in all classes of society.'"

        As courts addressed the regulation of marital violence in the wake of chastisement's demise, judges raised concerns about invading the privacy of the marriage relationship -- most often, it would appear, when they contemplated the prospect of sanctioning wife beating in households of the middle and upper classes. From this standpoint, it is significant that when the Alabama Supreme Court justified its decision to allow prosecution of the emancipated slave accused of wife beating in Fulgham, it never raised the subject of marital privacy. As we will see, concerns of marital privacy were regularly raised by courts addressing the regulation of marital violence during the Reconstruction Era.

        In the following sections I examine a group of criminal and tort cases that addressed the regulation of marital violence in the wake of chastisement's demise. These cases illustrate how courts reasoning within norms of companionate marriage could repudiate chastisement, and, at the same time, invoke concepts of privacy to justify giving wife beaters immunity from public and private prosecution. As this discussion will demonstrate, the repudiation of chastisement precipitated a shift in the rules and rhetoric of laws regulating interspousal violence -- giving rise to a new doctrinal regime couched in discourses of affective privacy that preserved, to a significant degree, the marital prerogative that chastisement rules once protected. A review of the post-chastisement case law also suggests that judicial concerns about privacy were class-salient, invoked to protect propertied men from regulatory oversight in ways they were not invoked to protect the poor.

A. Marital Violence and Marital Privacy in the Criminal Law

        Just three years before the Alabama Supreme Court repudiated the doctrine of marital chastisement in Fulgham v. State, the North Carolina Supreme Court repudiated the prerogative in the 1868 case of State v. Rhodes.[133] The Rhodes case is a frequently cited opinion which provides an interesting counterpoint to Fulgham. In Rhodes, the North Carolina Supreme Court repudiated chastisement doctrine yet declined to enforce an assault and battery charge against a man who assaulted his wife, instead granting him a limited immunity from criminal prosecution in an opinion couched in the rhetoric of affective privacy.

        In Rhodes, the defendant whipped his wife "three licks, with a switch about the size of one of his fingers (but not as large as a man's thumb)";[134] the trial court ruled that a husband had the right to chastise his wife and so was not guilty of assault and battery. On appeal, the North Carolina Supreme Court upheld the verdict but justified it on different grounds. Opening its opinion with the blunt observation that "the violence complained of would without question have constituted a battery if the subject of it had not been the defendant's wife,"[135] the court explained why it would not find the defendant guilty:  

The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations -- such as master and apprentice, teacher and pupil, parent and child, husband and wife. Not because those relations are not subject to law, but because the evil of publicity would be greater than the evil involved in the trifles complained of; and because they ought to be left to family government.[136]

        The Rhodes opinion is striking because it reveals the extent to which concerns about "the evil of publicity" that might result from enforcing criminal law in the family in turn rest upon traditional patriarchal assumptions about "family government" -- an institution that this court asserted was "recognized by law as being as complete in itself as the State government is in itself, and yet subordinate to it."[137] Given the court's continuing commitment to traditional authority-based conceptions of marriage, we might restate the privacy rationale it offered as follows: "Trivial complaints arising out of the domestic relations" are touchings "subject to law" which this court might adjudicate; yet the court declines to exercise its jurisdiction to do so, because "the evil of publicity" to the master of the household "would be greater than  the evil involved in the trifles complained of" by the wife. In short, judicial involvement in adjudicating complaints arising from the internal affairs of the household was injurious because it encroached upon the authority of its master.

        Yet the Rhodes opinion never directly invokes the authority of a master. Instead, the opinion explores these questions of jurisdiction and authority through the discourse of affective privacy:

However great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. Every household has and must have, a government of its own, modelled to suit the temper, disposition and condition of its inmates. Mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive; and each member will find excuse for the other in his own frailties. But when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life. [138]

        The claim that "every household has and must have, a government of its own" is the only traditional juridical proposition in this passage; but the claims about the psychodynamics of family life in which it is embedded are also juridical propositions, claims about the administration of justice expressed in the language of privacy and affect. The court reaches its decision to abstain from exercising its jurisdiction to adjudicate the conflict by weighing the emotional consequences of intervening in the conflict for the husband and the wife, in a framework that tacitly incorporates their relative privileges and disabilities under the marital status rules of the common law. The court never expressly invokes these common law privileges and disabilities; instead, like the prescriptive literature of the era we have examined,[139] the opinion discusses questions of authority and submission in the affect-based discourses of companionate marriage.

        We can even read the Rhodes opinion as translating the old common law of chastisement into the discourse of companionate marriage. When the court announces that "mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive," it is asserting that an affectionate wife has the reserves of altruism to forgive her husband's outbursts of violence; from a common law baseline, a wife is expected to submit. (Recall William Alcott's assertion that "the balance of concession" in marital conflicts would fall to the wife, and his counsel that "the more cheerful and voluntary the submission, the happier the results . . . . Perhaps there is no one thing on which domestic happiness so much depends as this . . . ."[140]) From this standpoint, it is hardly surprising that the court judges the "evils" a wife might suffer in having no legal protection from assault minor in comparison to the loss of authority a husband might suffer in having a court review and sanction his assertion of prerogative. For this is the sense of the court's claim that "when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life." The husband's loss of authority is twofold: He is "exposed" and "disgraced" by public review of his assertion of prerogative over a member of his household, and his wife is encouraged to resent and defy, rather than submit to, his authority (she will "remember" rather than "forget" his violent outburst).[141] Thus, reasoning from common law premises, the court concludes that it is easier for an altruistic wife to forgive her husband's impulsive violence than it is for a husband to suffer the loss of authority entailed in having his exercise of prerogative reviewed by public authorities. The court's conclusion makes sense, either as a claim about psychology (in which the gravity of emotional injury is weighed in light of social expectations engendered by the common law) or as a claim about marital status law (in which status prerogatives and disabilities are expressed in a new legal idiom drawn from the discourse of companionate marriage).

        Yet if the common law of marital status visibly shapes the Rhodes opinion, it is important to note how carefully the court distances itself from the very tradition on which it draws. The court dislocates the various feelings it discusses from the (gendered) persons who might bear them -- endeavoring quite self-consciously to disassociate itself from a common law tradition that assigns prerogatives and disabilities to "husband" and "wife" on a gender-specific basis. As the common law of chastisement is translated into the conceptual framework of companionate marriage, it undergoes a change both in rhetoric and in rule structure. For unlike the privacy-based chastisement opinions examined in the introduction to this part, the Rhodes opinion was repudiating chastisement doctrine, not offering a supplemental justification for it. The North Carolina Supreme Court was quite explicit about this:  

The ground upon which we have put this decision, is not, that the husband has the right to whip his wife much or little; but that we will not interfere with family government in trifling cases. We will no more interfere where the husband whips the wife, than where the wife whips the husband; and yet we would hardly be supposed to hold, that a wife has a right to whip her husband. We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence.[142]

The court supplanted a husband's prerogative to chastise his wife with a limited immunity from prosecution that happened to coincide with his former right to give his wife "moderate correction."[143] A gender-specific prerogative once justified in the language of hierarchy now appears as a "gender-neutral" immunity justified in the language of affect and privacy. (Note how in this context, the language of gender neutrality is privilege-protecting.)

        Just as the gender-based preoccupations of the Rhodes opinion are self-consciously submerged in formally gender-neutral rules, the class-based preoccupations of the Rhodes opinion are also submerged in formally class-neutral rules. When the court discusses the "evils" of interfering with "family government," it is most concerned with protecting the authority/privacy of middle-class and upper-class men, as the opinion makes clear in a secondary rationale for the immunity rule it adopts. As an additional justification for its refusal to apply the criminal law to wife beating, the court asked how a judge was to "weigh the provocation in every trifling family broil":

        Suppose a case coming up to us from a hovel, where neither delicacy of sentiment nor refinement of manners is appreciated or known. The parties themselves would be amazed, if they were to be held responsible for rudeness or trifling violence. What do they care for insults and indignities? In such cases what end would be gained by investigation or punishment? Take a case from the middle class, where modesty and purity have their abode but nevertheless have not immunity from the frailties of nature, and are sometimes moved by the mysteries of passion. What could be more harassing to them, or injurious to society, than to draw a crowd around their seclusion. Or take a case from the higher ranks, where education and culture have so refined nature, that a look cuts like a knife, and a word strikes like a hammer . . . where an indignity is disgrace and exposure is ruin. Bring all these cases into court side by side, with the same offence charged and the same proof made; and what conceivable charge of the court to the jury would be alike appropriate to all the cases, except,  That they all have domestic government . . . suited to their own peculiar conditions, and that those governments are supreme, and from them there is no appeal except in cases of great importance requiring the strong arm of the law, and that to those governments they must submit themselves.[144]

For this court at least, judicial respect for privacy was responsive to the needs of the "middle class" and those of "the higher ranks" for whom "an indignity is disgrace and exposure is ruin."[145] Yet the court announced its decision to provide wife beaters a limited immunity from criminal prosecution without expressly linking it to the class status of the accused. Thus, both the class and gender referents of the norms supporting the new policy were suppressed as it was codified into rule form. As the court summed up the new doctrine six years later in a much-quoted opinion: "If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive."[146]

        These North Carolina cases repudiate chastisement, yet carry forward its concerns within discourses of affective privacy. By now it should be clear enough how privacy talk was deployed in the domestic violence context to enforce and preserve authority relations between man and wife. But the significance of privacy talk in regulating authority relations among men bears further consideration.

        Note how the Rhodes court draws a linkage between class and sensibility, and then between sensibility and the need for privacy. ("Rudeness" is common in cases arising from the hovels, "where neither delicacy of sentiment nor refinement of manners is appreciated or known"; by contrast, persons of the middle and upper classes are characterized by "modesty and purity" -- for them, "an indignity is disgrace and exposure is ruin.") This correlation between sensibility and class was commonplace in the nineteenth century; we have already observed it in the context of cruelty doctrines in divorce law.[147] A recent account of nineteenth-century etiquette manuals sheds further light on the tacitly class-based understandings of the discourse of affective privacy. In Rudeness & Civility: Manners in Nineteenth-Century Urban America, historian John Kasson argues that in the nineteenth century

[a] new kind of embarrassment and sense of shame emerged . . . one that fed upon uncertainties of status, of belonging, of living up to often ambiguous standards of social performance in a society in which all claims of rank were subject to challenge. The intense bourgeois concern with "rudeness" in the nineteenth century must be viewed in relation to this altered context of shame and embarrassment. Rudeness in this culture constituted a kind of social obscenity, a violation of the codes of civility in such a way as to make public that which should remain private, to single out for special attention that which should remain inconspicuous, or else to cast public actions, conduct, and individual actors in an unworthy or degrading light.[148]

        Kasson remarks dryly that "manners provided yet another way of avoiding talking openly about the dirty secret of class in America."[149]

        Kasson's account of nineteenth-century etiquette manuals sheds interesting light on the adjudication of wife-beating claims as it analyzes how an individual's public demeanor was important in laying claim to social status. Etiquette manuals coached their readers on the acquisition of such demeanor, exhorting self-control as the path to privileged bearing. ""Command yourself,' The Illustrated Manners Book enjoined its male readers in 1855 . . . . "The first element of a gentlemanly dignity is self-control . . . .'"[150] Etiquette writers were most concerned with "shows of anger," a topic that generated a large body of commentary in which "questions of gender and status quickly came into play."[151] Men of the privileged classes were thus obliged to control anger and many other feelings to establish their claim to social status. A popular etiquette manual explained in 1871: "As we look, so we feel, so we act, and so we are. But we may direct and control even our thoughts, our feelings, and our acts, and thus, to some extent -- by the aid of grace -- become what we will."[152] Kasson argues that the etiquette manuals taught civility rules in such a way as to naturalize class status as the product of individual character and sensibility.[153]

        From this standpoint, it is easier to understand how the values of privacy Rhodes articulates implicate questions of status and authority, not only between men and women (the domain of "family government"), but among men as well. Adjudicating wife-beating claims in a court of law would reveal that middle- and upper-class men "have not immunity from the frailties of nature, and are sometimes moved by the mysteries of passion," and, as the Rhodes court points out, "what could be more harassing to them, or injurious to society, than to draw a crowd around their seclusion."[154] In short, the adjudication of wife-beating claims among men of the privileged classes would subject their demeanor and bearing to social scrutiny in ways that might call into question their claim to social authority -- as it would not men of the poorer classes. It is only for the "refined," after all, that "an indignity is disgrace and exposure is ruin."[155]

        With these matters of privacy and class in mind, it is worth recalling that when the Alabama Supreme Court justified prosecuting the emancipated slave who had beaten his wife in Fulgham v. State, it reasoned about the question in the discourse of companionate marriage without ever mentioning considerations of marital privacy. In this context, we might also recall the late-nineteenth-century campaign to reinstate the whipping post as a punishment for wife beating; penologists who advocated the whipping post as a method of breaking men of the so-called "vicious classes" recommended the technique at least in part because it entailed a public shaming. As the chief justice of Delaware touted the virtues of his state's whipping post: ""The sting is in the public disgrace and ignominy of the whipping, and in this line lies its efficiency.'"[156] Or, as the Reverend Phebe Hanaford put it: "The news of the   punishment will speedily become public property, whether the whipping-post be in sight of all men or not. There is little chance of privacy or concealment in the white light or the lurid glare of the Nineteenth Century press."[157] If privacy discourses of the sort invoked in Rhodes did not play a major role in the criminal prosecution of wife beating in the late nineteenth century, it is because criminal prosecution of wife beaters during this era was focused on controlling men of the "lower classes"[158] -- men whose privacy needs elites scarcely acknowledged, much less sought to protect. Indeed, given the class-based concerns informing Rhodes's injunction against "raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber"[159] -- we might even speculate that criminal prosecution of wife beaters during the late nineteenth century served at least in part to construct "the vicious classes" as vicious and rude, and thus to justify distinctions of authority and status among men.

        To appreciate how the discourse of affective privacy protected the authority of privileged men, as against their wives as well as men of the lower classes, it is helpful to examine the development of tort law concerning marital violence during the Reconstruction Era. As we will see, privacy-based reasoning about marital violence played a key role in the law of intentional torts as it emerged from reform by the married women's property acts. It was in the law of torts that privacy-based reasoning about marital violence flourished, before returning to shape the criminal law during the early twentieth century.

B. Affective Privacy in the Emerging Law of Interspousal Tort Immunity  

        While it was clear by the second half of the nineteenth century that wife beating was a crime, it was not at all clear that this same conduct constituted a tort. A criminal prosecution for wife beating was brought against a husband by the state, while a tort claim was prosecuted by the married woman herself. Could a battered wife bring suit against her husband in order to vindicate her own injuries without depending upon the state to intervene and protect her? The question was startling to those versed in common law understandings of marriage. The same body of common law that vested a husband with the prerogative to chastise his wife also denied married woman the right to file suit without her husband's consent and joinder.[160] Interspousal litigation violated fundamental precepts of the doctrine of marital unity.

        But if the prospect of a wife suing her husband contravened the most basic common law concepts of marriage, it was also an inevitable outgrowth of common law reform in the mid-nineteenth century -- a period when the doctrine of marital unity was undergoing statutory modification under the pressure of feminist advocacy. Courts asked to determine whether wife beating was a tort had to interpret the married women's property acts whose enactment the woman's rights movement had advocated. Among the many rights these laws gave married women was the right to file suit without their husbands' joinder, and the right to collect tort damages for injuries to their persons and property.[161] Under these reform statutes, could a wife now bring a tort suit against a husband who assaulted her and collect money damages? The question presented women as agents of their own vindication in a dual sense: A plaintiff sought redress for her injury without relying on the state to protect her, and she did so under the authority of legislation enacted in response to feminist advocacy.[162]

        The law of torts differed from the criminal law in one other respect relevant to our analysis of the development of modern domestic assault law. A wife was likely to bring suit for money damages against a husband who assaulted her only in circumstances where there were assets to redistribute within the family. Thus, as jurists would surely recognize, it was married men of the middle and upper classes who might face tort claims for wife  beating -- precisely those men who were unlikely to face criminal prosecution for wife beating during the late nineteenth century.

        With these gender- and class-salient features to recommend it, the new tort claim was not well received. Regardless of whether a husband beat, choked, stabbed, or shot his wife, all courts reviewing such claims initially rejected them, reasoning that spouses could not sue each other in tort -- and buttressing this conclusion with justifications couched in the language of affect and privacy. (This doctrine of "interspousal tort immunity" survived well into the twentieth century, and today still bars claims of intentional torts, either in whole or in part, in nearly a fifth of the states.[163])

        New York courts were the first to face the question. In 1860, New York enacted a nationally renowned statute giving a married woman the right to her earnings and the capacity to sue in contract and tort, including the right to "bring . . . an action in her own name, for damages, against any person or  body corporate, for any injury to her person or character, the same as if she were sole."[164] Several years later, when a married woman brought suit against her husband for assault and battery, the New York Supreme Court interpreted the 1860 statute to bar her claim. While the trial court found that "the defendant assaulted and beat the plaintiff to her damage one hundred dollars,"[165] the reviewing court reversed this verdict on appeal. The court acknowledged that the wife's right to sue her husband for assault and battery "may perhaps be covered under the literal language of [the statute]" but complained that this could not be "the meaning and intent of the legislature, and . . . should not be the construction given to the act."[166]

The effect of giving so broad a construction to the act of 1860, might be to involve the husband and wife in perpetual controversy and litigation -- to sow the seeds of perpetual domestic discord and broil -- to produce the most discordant and conflicting interest of property between them, and to offer a bounty or temptation to the wife to seek encroachment upon her husband's property, which would not only be at war with domestic peace, but deprive her probably of those testamentary dispositions by the husband, in her favor, which he would otherwise be likely to make.[167]

The court first reasoned that permitting a wife to sue her husband in tort would provoke marital conflict -- presumably by allowing a married woman to assert herself in ways she could not at common law. (Recall the connection William Alcott drew between wifely submission and marital happiness: "Perhaps there is no one thing on which domestic happiness depends as this."[168]) After suggesting that recognizing the wife's claim would have adverse affective