last accounts the shield had recovered $25,000 damages, but the end is not yet.

It is common law that a husband is entitled to have his wife's body inviolable from the wily seductions or forcible attacks of others. One court goes so far as to hold that if a druggist sells her opium, and thus demoralizes her body, the husband has an action against him. Hoard v. Peck, 56 Barb. 202; Holleman v. Harvard, 119 N. C. 150; 34 L. R. A. 803. But it has been held by the former court that the husband has no criminal redress for an assault on her person invited by her. People v. Bushnell, 5 Barb. 156. And that he cannot recover damages for a surgical operation upon her at her request, provided it is reasonably deemed necessary to prolong her life, although it deprives the husband of a part of her body. State v. Housekeeper, 70 Md. 162; 2 L. R. A. 587. But again it has been adjudged that he may have damages of a physician who brings a layman to her bedside to assist him in her accouchement, this being regarded as equivalent to Clodius's penetration into the mysteries of Bona Dea. De May v. Roberts, 46 Mich. 160; 41 Am. Rep. 154. A wife has a corresponding theoretical monopoly of her husband as against erring sisters or envious brethren who entice it away from her. So say the courts of New York, Ohio, Connecticut, New Hampshire, Indiana, Michigan, Colorado, Missouri, Nebraska and Iowa; but Minnesota, Maine, Wisconsin and Tennessee are of the contrary opinion.

But the husband's right to his wife's body is valid only as against interlopers; he cannot imprison his wife, in the absence of her misconduct, nor compel her to live with him. So it was declared in the celebrated case of Jackson v. Clithero, 25 Am. Law Rev. 254, to the intense disgust of English husbands, who overwhelmed the columns of "The Times" with their complaints.

In the recent English case of Miss Beatty, a hospital nurse, who sued an eminent surgeon for removing both her ovaries when

she had restricted him to one, she was held to be without remedy because the surgeon thought the double operation necessary. (See 9 GREEN BAG, p. 136.)

The absence of all malice and the evident intention to be merry will not justify an assault. As where one in sport threw a piece of mortar at A and hit B. Peterson v. Haffner, 59 Ind. 130; 26 Am. Rep. 81. In the "City Hall Recorder," which contains a good deal of humor and scholarship on the part of the reporter, we find in Volume I at page 167, the case of Duffie v. Matthewson and several others, in the marine court, presided over by Henry Wheaton, the head note of which runs as follows: "The captain and crew of a vessel on the high seas have no right to permit or excite Old Neptune to shave a passenger and immerse him in a tub of water, contrary to his will." The British ship "Thomas" had no sooner begun to stir up with her prow the schools of cod on the Newfoundland Banks, than the crew began playing those pranks customary on crossing the equator. Refusing the demand of Neptune for a bottle of cognac or rum," the recalcitrant Mr. Duffie was seized upon by the nautical masqueraders, shaved with a razor formed from an iron hoop, and then dropped into a tub of sea water. Duffie had enjoyed the lark when it was at the expense of Ann Jones, another passenger,

it does not appear that the lady was shaved, but objected that when applied to him the custom was unreasonable and invalid, that it was not such an essential incident of the contract of carriage that he must have been presumed to contract with reference to it, and that it was an assault and battery not alleviated by the humorous intention. The jury gave him forty-six dollars damages. The case is reported in a mock-heroic and classical strain which is quite amusing. The legal view of practical joking is somewhat set forth in a note, 40 Am. Rep. 591, annexed to the case of the playful gentleman who put gunpowder in

the plaintiff's smoking tobacco, and thereby caused him optical injury. The "lark" is a bird not specially beloved of the judges. Although a good deal of latitude is allowed to schoolboys, yet the court in Markley v. Whitman, 95 Mich. 236; 35 Am. St. Rep. 558; 20 L. R. A. 55, could not bring itself to countenance the practice of "rushing," or the "horse game." In this game a line of boys is formed, one behind another, an unsuspecting victim is found in front, and then the foremost boy is rushed against him. by those in the rear. In this instance the victim's neck was nearly broken and he permanently lost his voice. The foremost lad in the human catapult was adjudged to pay $2,500 damages. And so, regardless of his intent, a schoolboy was held in damages for kicking one of his young mates on the shin in school hours. Vosburg v. Putney, 80 Wis. 523; 27 Am. St. Rep. 47; 14 L. R. A. 226. The court said it would have hesitated to hold the defendant if the injury had been inflicted in sport on the playground, but the act was unlawful because kicking shins was not in order during study time.

In like manner the absence of intent to hurt will not justify the creditor in laying hands gently on his debtor, while sleeping in his bed, to wake him up in order to present his bill. Richmond v. Fiske, 160 Mass. 34. And so also where the intention was merely to express admiration, as where the gallant railway conductor kissed the female passenger against her desire. Croaker v. Chicago,

etc.

Ry. Co., 36 Wis. 657; 17 Am. Rep. 504. As this was not in the apparent course of the conductor's employment it cost the employers $1,000. So the poet's denunciation of the fellow who lays hands upon a woman save in the way of kindness may even be extended to kind acts which are not invited.

But where no corporeal injury is inflicted, nor capable of being inflicted, as for example, where one points an unloaded gun at another, knowing it to be unloaded, there is a difference of opinion whether the terror of

the person pointed at will sustain a complaint of assault and battery. That it will, is held in Com. v. White, 110 Mass. 107; that it will not is held in Chapman v. State, 78 Ala. 463; 56 Am. Rep. 42; State v. Godfrey, 17 Oreg. 300; 11 Am. St. Rep. 830; and other cases pro and con are cited in these. It seems to the writer that the Massachusetts doctrine is preferable. The presenter of the weapon should be estopped by the appearance, for very few persons would have presence of mind to inquire if the gun is loaded before getting frightened.

"Oh! why does the white man follow my path?" exclaimed the Indian chief. That was what Chappell asked about Stewart, in 82 Md. 323; 51 Am. St. Rep. 476; but the court refused to enjoin the following, and watching, although it annoyed Chappell, injured his business and credit, and brought him into suspicion.

The law even extends its care of the human body after death, and insists that it shall have proper burial. This was laid down in Reg. v. Stewart, 12 Ad. & El. 773. In Kanavan's case, I Maine, 226, it was held indictable to cast a dead human body into a river, and the court grew eloquent over the enormity of the offense. So laws against disinterring dead bodies for the purpose of dissection are almost universal. Dickens gave voice to the common and humane sentiment on this subject when he represented Mrs. Cruncher as assiduously "flopping" in prayer to turn her husband, Jerry, from his unholy course in this regard. But cremation instead of burial is not infrequent in this country, and our courts have had nothing to say against it, while the English court has distinctly approved it. Queen v. Price, 12 Q. B. Div. 247. The law has long outgrown its ancient prejudice against suicides, which denied them the rites of Christian sepulture, and did not even grant them the "maimed rites" which the poet gave to poor distracted Ophelia, but buried their bodies at the crossroads with

stakes driven through them. Even the recent peculiar legislation of New York, which made an unsuccessful attempt at suicide a penal offense, has become practically a dead-letter, owing to the difficulty of enforcing it.

One striking exception which the law makes as to the inviolability of the human body is when it deems an unusual exposure and exhibition of it necessary to the attainment of criminal or civil justice. The courts are by no means unanimous in their views on this point. In civil cases, a majority of the courts hold that where one sues for an injury to his body, either he is bound to submit to a surgical examination on the demand of the other party, or the court may in its discretion order him so to submit. The cases to this effect are cited in Railroad Co. v. Botsford, 143 U. S. 250. In that case, however, a vigorous decision to the contrary was announced, and this has been followed, or had previously been adjudged, in Missouri, Illinois, New York, Indiana. Michigan has recently attached herself to the majority (Graves v. Battle Creek, 19 L. R. A. 641.) In New York a law has recently been enacted giving the right which her courts had denied. The chief, and it seems to me the unanswerable argument against this power, is that the law has no authority to compel a private suitor to produce any particular class or measure of evidence, or any evidence whatever.

If

his evidence fails to satisfy the jury, he simply fails in his contention. The argument of delicacy, propriety and policy has force, but the other seems overpowering.

There is a similar but less serious conflict on the question whether one on trial for crime may be compelled to expose parts of his person which are usually kept covered, or to do unusual acts, in order to identify him; as for example, to strip his arm to show a mark upon it, or to put his foot in a track. There is certainly no objection to the jury's viewing those parts of the body

which are commonly visible, but to stretch the rule beyond this seems to infringe the constitutional privilege of the accused to refuse to give or furnish evidence tending to criminate himself. The cases and the arguments on this point are arrayed in GREEN BAG, Vol. IV, 555. The most recent ruling is that in New York, that a prisoner may be compelled to stand up in court for the purpose of being identified, but this comes within the class of usual acts. In England a statute compels a prisoner accused of forgery to "show his hand," if required; i. e. to write in court.

Having thus traced the legal inviolability of the human body from its conception to its dissolution and burial, there remains only to remark that the same principle subsists even after its burial. The public man, it is true, is subject in his last moments to a terror worse than death, namely, the liability to have his effigy stuck up in some public place, like those ridiculous statues, in frock coat and trousers, which disfigure the parks and squares of Boston and New York. This is one of those penalties which is imposed on greatness, or the commonplace qualities which are supposed to be akin to greatness. But the law will take care that no private man's person shall be thus perpetuated or caricatured against his will or that of his family. Such was the humane decision of the court in Schuyler . Curtis, 64 Hun. 594, where the exposure of a public statue of a very excellent and very modest woman was prohibited on the petition of her descendants, although the design was purely complimentary, and was to exhibit the statue at the late Columbian Exposition, at Chicago, under the title, "The Typical Philanthropist." In this case the court obiter deny the right of strangers to erect statues even to public men against the will of their families or descendants, observing that no one "thereby surrenders his personality while living, and his memory when dead, to the public to be used or abused, as any one of that irresponsible body may see fit. . . It

cannot be that by death all protection to the reputation of the dead, and the feelings of the living in connection with the dead has been absolutely lost. . . But it is probably the first time in the history of the world that the audacious claim which is here presented has ever been advanced."

This ruling, however, was reversed by the court of appeals (147 N. Y. 434; 49 Am. St. Rep. 671), the court remarking: "Whatever the rights of a relative may be, they are not, in such a case as this, rights which once belonged to the deceased, and which a relative can enforce in her behalf and in a mere representative capacity, as, for instance, an executor or administrator, in regard to the assets of a deceased. It is not a question of what right of privacy Mrs. Schuyler had in her lifetime. The plaintiff does not represent that right. Whatever right of privacy Mrs. Schuyler had died with her. Death deprives us all of rights in the legal sense of that term, and, when Mrs. Schuyler died, her own individual right of privacy, whatever it may have been, expired at the same time. The right which survived (however extensive or limited) was a right pertaining to the living only. It is the right of privacy of the living which it is sought to enforce here. That right may, in some cases, be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living and not that of the dead which is recognized." The court observe obiter: "If the defendants had projected such a work in the lifetime of Mrs. Schuyler, it would perhaps have been a violation of her individual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such action by anyone so long as it was in opposition to her wishes." This was affirmed in the United States Supreme Court. So it seems even a private woman may be subject to the annoyance of expecting a posthumous public statue of

herself to be set up in a gown ridiculously out of fashion. And it has been decided that: The picture or photograph of a public person, such as a great inventor, may lawfully be published in a newspaper, magazine, or book, if a copy can be obtained without breach of contract or violation of confidence. Corliss v. E. W. Walker & Co., 57 Fed. Rep. 434; 64 ibid. 280; 31 L. R. A. 283.

Reg.

Another exception sometimes made by the legislatures, if not by the courts, to the inviolability of the body, is in regard to vaccination. It has sometimes been enacted that the community should be vaccinated in order to prevent the rise or spread of contagion from small-pox. This seems a rather tyrannical interference with the person, but it was defended on the grounds which justify the blowing up or pulling down of houses to prevent the spread of conflagration. The right has been very strenuously denounced, and even forcibly resisted. No case has come in question in this country involving the right of the citizen to resist the vaccination of his own body where the provisions of the statute had been precisely complied with. In England the public authorities may order a child to be vaccinated. v. Justices, L. R. 17; Q. B. 191, and other cases cited in notes, 25 L. R. A. 152. In this country it was early held that a tax to pay the expenses of vaccinating the inhabitants of a town was valid. Hazen v. Strong, 2 Vt. 427, and it has been held that a school board may exclude pupils who refuse to be vaccinated. Duffield v. Williamsport School District, 162 Pa. St. 476; 25 L. R. A. 152. So a statute authorizing such actions by school boards is valid. Bissell v. Davison, 65 Conn. 183; 29 L. R. A. 251; Abeel v. Clark, 84 Cal. 226. If a statute authorizes vaccination only of persons infected or exposed, it confers no authority to vaccinate or quarantine an express proprietor on the ground that his business carries danger of infection. Re Smith, 146 N. Y. 68; 28 L. R. A. 820.

Whether it is arson for a prisoner to fire a jail for the mere purpose of escaping has been variously decided. Although it would seem the duty of a good citizen to await his trial, and vindication or punishment, with composure, yet some highly respectable courts have allowed so much to the natural longing for liberty of person as to excuse the act and pronounce it not arson. People v. Cotteral, 18 Johns. 118; Jenkins v. State, 53 Ga. 33; 21 Am. Rep. 255; State v. Mitchell, 5 Ired L. 350; Delaney v. State, 41 Tex. 601. Mr. Bishop says, "Unhappily on this side are the majority of cases." But to the contrary are: Luke v. State, 40 Alabama, 30; 20 Am. Rep. 269; Smith v. State, 26 Tex. Ct. App. 357; 50 Am. Rep. 773, overruling Delaney v. State, supra. He is bound to stay although the jail is unhealthy and filthy. State v. Davis, 14 Nev. 439; 33 Am. Rep. 563. He may be punished for escaping although he was acquitted of the charge on which he was confined. State v. Lewis, 19 Kansas, 260; 27 Am. Rep. 113.

It seems that as one arrested on a charge of crime is presumably innocent, he may not be compelled to sit for his likeness, to be added to the "Rogues' Gallery." If this has not been judicially decided, it was in effect decided by the House of Commons, in 1879, in the case of Mr. Ambrose Fortescue, an American gentleman, incarcerated in Newgate on a charge of forgery, whom

the governor of the prison manacled and "shored up" and thus took a photographic copy. The home secretary, on the call of the House of Commons, admitted that it was wrong, and against the rules of the prison. The sitter probably did not assume a cheerful expression. I have not learned that he ever sued the governor for damages for infringement of copyright. Probably, after conviction and sentence, a sitting might be enforced without any breach of personal rights.

Where the superintendent of a cemetery carelessly and willfully disinterred the remains of the plaintiff's child, it was held actionable. Meagher v. Driscoll, 99 Mass. 281; 96 Am. Dec. 759. So where one wrongfully dissected the body of the plaintiff's husband. Larson v. Chase, 47 Minn. 307; 28 Am. St. Rep. 370; 14 Lawyers' Rep. Annotated, 85; Foley v. Phelps, 1 App. Div. 551 (N. Y.); or of his child. Burney v. Children's Hospital (Mass. Sup. Ct. June, 1897). But consult Young v. College of Physicians and Surgeons, 81 Md. 358; 31 L. R. A. 540.

Courts are so sensitive at the sight of human corpses that they will not tolerate the exhibition of exhumed human bodies in mere cases of civil contract, such as actions on life insurance policies. Wehle v. U. S. M: Acc. Ass'n, .153 N. Y. 116; Grangers' Life Ins. Co. v. Brown, 57 Miss. 308; 34 Am. Rep. 446.