decided in 1757, and before the Act of 56 George III., was also cited from 1 Burrow's Reports, in which case Lord Mansfield said that the writ of Habeas Corpus was granted "as the circumstances of the case, where delay may be dangerous, required it. It is reasonable that the lady should have the opportunity of laying her case before the Court, and swearing the peace if she think proper." The Act to amend the Matrimonial Causes Act, 1884, 47 & 48 Victoria, c. 68, was also cited. It enacts, in section 2, "that a decree for restitution of conjugal rights shall not be enforced by attachment," i.e., by arrest and imprisonment for disobedience to the decree. Reg. v. Lister, reported in I Strange's Reports, and Reg. v. Mear, reported in 1 Burrow's Reports, p. 542, were also cited. In the latter case, where articles of separation had been executed, the Court refused to compel a wife to return to her husband, and Lord Mansfield put the decision of the Court on the ground of a voluntary renunciation by the husband of his marital rights. But, as a general rule, “the husband," his Lordship said, "has, in consequence of his marriage, a right to the custody of his wife, and whoever detains her from him violates that right, and he has a right to seize her wherever he can find her." In the former case, where a wanton or excessive exercise of the marital right was attempted to be enforced by the husband, the lady was discharged. Here Mr. Justice Coleridge laid down that "where the wife will make an undue use of her liberty by going into loose company, &c., it is lawful for the husband, in order to preserve her honour and state, to lay such a wife under restraint. But where nothing of that appears, he cannot justify the depriving her of her liberty." The case of Mrs. Cochrane, decided in 1840, reported in 8 Dowling, was also cited. In this case, Mr. Justice Coleridge laid down the law in general terms in these words: "There can be no doubt of the general dominion

which the law of England attributes to the husband over the wife." He then went on to say: "On the other hand, there are numerous authorities to shew that the Courts will interpose their protection whenever the husband attempts to abuse the marital power for any improper purpose, or by any wanton or excessive exercise of it." Strange to say, the Divisional Court in Jackson's case seems to have been of opinion that, in Mrs. Cochrane's case, the writ of Habeas Corpus was refused, while the fact is that the writ was actually issued. On the return to the writ, the husband was held to be entitled to the custody of his wife. In delivering judgment in Jackson's case, the Master of the Rolls said that "in Cochrane's case the judgment was extremely vague and obscure, and the decision was absolutely wrong, and must be deemed to be overruled." At the same time, Lord Justice Fry said: "In Cochrane's case, the husband got possession of his wife by stratagem, and the case was not satisfactory." These quotations and observations must suffice as to the cases cited in Jackson's case.

In delivering his judgment in Jackson's case, Mr. Justice Cave said that "The words cited from the case of Reg. v. Lister must be understood with reference to the case before the Court, in which violence and imprisonment had been made use of for an unlawful purpose; and, so holding the case not to be within any exception, I refuse the writ. Now, that being the law, and the husband having a right to the custody of his wife, unless he uses it for some improper purpose, or is guilty of some excess or misconduct, what are the facts in the present case?" His Lordship then stated the facts, and laid great stress on the Decree of Conjugal Rights obtained by Mr. Jackson, as proving a just claim to the custody of his wife; and also on the acts of Mrs. Jackson's relations, as shewing that their influence had been used with Mrs. Jackson against a reconciliation with her husband. His Lordship held that it had not been

shewn that the husband had done anything to disentitle him to the custody of his wife. "If," his Lordship went on to say, "there were a prima facie case of cruelty, that would certainly entitle her to apply for the writ. But I can see no trace of anything of the kind." He also said: "It would be of no use to grant a rule nisi, when it appears clear that it must be discharged. I think, therefore, that the application must be refused." Then Mr. Justice Jeune said that he was of the same opinion, and also that "though generally the forcible detention of a subject by another is primâ facie illegal, yet, where the relation is that of husband and wife, the detention is not illegal." The application was accordingly refused by the Divisional Court.

On the following day, in the 1st division of the Court of Appeal, before the Lord Chancellor, the Master of the Rolls, and Lord Justice Fry, an application was made for a Habeas Corpus by way of an original motion, and also by way of Appeal. This Court ordered a writ of Habeas Corpus ad subjiciendum to be issued, and to be served on Mr. Jackson, who was required to produce his wife in Court on the 19th of March, and to state the cause of her detention, in order that the Court might judge and determine whether it was sufficient in law; and, if not, that the lady, in due course of law, might be discharged. This application to the Court of Appeal was made on the facts laid before the Judges of the Divisional Court.

On this occasion, the old cases were almost laughed out of Court, and no great reverence was paid to decisions which were cited in support of the proposition that a husband could beat his wife as well as restrain her in her liberty. After the Act of 1884, section 2 (Ante), the right to imprison a husband or wife for simple desertion was out of the question. No doubt, Blackstone writes, that "From their warm

attachment to the Common Law of the realm, the common people are much addicted to the exercise of their ancient privilege." But, in the case of the Queen v. Leggatt, 18 Q.B. Reports, p. 780, decided by the full Court, of which Mr. Justice Coleridge was a member, the old English Common Law as to a husband having a right to beat or restrain his wife-if it ever existed at all-was overturned, and set aside. In that case, Lord Campbell, C.J., said: "If the wife were before us, we could not compel her to go to her husband, as the Affidavits shew that she desires to live with her son." His Lordship went on to say: "At Common Law, the husband has no right to the custody of his wife."

The learned counsel who argued for the issue of a writ of Habeas Corpus by the Court of Appeal, grounded his application so far as the jurisdiction of the Court was concerned(1.) On the 19th section of the Judicature Act (1873), that the Court of Appeal had jurisdiction on any Appeal from "any Judgment or order;" and (2) on the 5th section of the Judicature Act, giving to the members of the Appeal Court full power to sit as ordinary Judges. Under the practice before the Judicature Act, an application could be made to anyone of the Common Law Courts, after it had been refused by the other Common Law Courts. But no decision was cited to shew that the Judges of the Court of Appeal, as ordinary Judges of the Supreme Court, ever issued a writ of Habeas Corpus. Under the old practice of the Court, before the Judicature Act of 1873, there was no Appeal on an application for a writ of Habeas Corpus. The Court of Appeal reserved the question of jurisdiction, till it could be argued on both sides.

On the return to the writ, Mr. Jackson, the defendant, justified what he had done in the seizure, treatment, and detention of his wife, by the legal rights of a husband according to the Law of England. But the question of

the jurisdiction was not argued by the learned counsel for the defendant. It was, in fact, abandoned, in consequence of observations made by the Court, at the very beginning of the argument. For example, the Lord Chancellor said that he had undoubted jurisdiction in this case by way of Appeal on a motion for Habeas Corpus; and that, if the facts disclosed a case for intervention, the Court, or he himself, would order a writ to be issued. The Master of the Rolls also said that the Court of Appeal held, in the Bell Cox case, that the Court of Appeal had jurisdiction in cases of Habeas Corpus; and that the House of Lords had affirmed their Appellate jurisdiction on that point. Thereupon, Counsel for the Appellant said that he would not trouble the Court with any arguments against the jurisdiction of the Court of Appeal in this case.

The return to the writ was then called for, and was read by the Master of the Crown Office. It contained a statement of the facts already given, and pleaded justification by the Laws of England.

During the argument, the Lord Chancellor said that, in this case, "the circumstances under which the wife was seized and detained are not such as to negative undue violence and severity." Lord Esher, M.R., also said, that a husband never could, by the Common Law of England, beat his wife. But the authorities are, I submit, against this view. Moreover, there is no inherent improbability that the ancient authorities are a true exposition of the ancient Common Law of England, down, at all events, to the reign of Charles II. Lord Esher asked the learned counsel for the defendant to distinguish between confinement and imprisonment; but got no satisfactory answer. In Cochrane's case, Mr. Justice Coleridge did not shrink from the logical consequence of his opinion as to the husband's right to control his wife, as perhaps involving perpetual imprisonment. He defended his position by