Davis v Johnson [1979] AC 264

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ICLR: Appeal Cases/1979/DAVIS RESPONDENT  AND  JOHNSON APPELLANT – [1979] A.C. 264

[1979] A.C. 264

[HOUSE OF LORDS]

DAVIS RESPONDENT  AND  JOHNSON APPELLANT

1977 Nov. 17, 18, 21; 28

Lord Denning M.R., Sir George Baker P., Goff, Shaw and Cumming-Bruce L.JJ.

1978 Jan. 16, 17; March 9

Lord Diplock, Viscount Dilhorne, Lord Kilbrandon, Lord Salmon and Lord Scarman

James Comyn Q.C. and Judith Parker for the applicant.

Joseph Jackson Q.C. and David McIntyre for the respondent.

Cur. adv. vult.

November 28. The following judgments were read.

LORD DENNING M.R. “Battered wives” is a telling phrase. It was invented to call the attention of the public to an evil. Few were aware of it. It arose when a woman suffered serious or repeated physical injury a from the man with whom she lived. She might be a wife properly married to her husband: or she might only be a woman called, falsely, a “common law wife.” No such woman was known to the common law, but it means a woman who is living with a man in the same household as if she were his wife. She is to be distinguished from a “mistress,” where the relationship may be casual, impermanent, and secret.

To go back for a few centuries, by the old common law a husband was allowed to beat his wife so long as he did it with a stick no bigger than his thumb. He was able, Blackstone says, to give his wife “moderate correction.” But Blackstone goes on to tell us that by his time this power of correction began to be doubted: “Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege”: see Blackstone’s Commentaries, vol. 1, 8th ed. (1775), p. 445.

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