1764.
Octor. 18th .

By Adjournment at Hicks Hall on Thursday 18th. October 1764

Cose
about a Wife's
being a witness
agt. her Husband.

At the last General Session of the Peace for the County of Middx a man
was Tryed upon an Indictment for an Assault and Battery committed on his wife
and the wife (no other Person being able to prove the Fact) was produced as a
Witnes. in Support of the Indictment but the Councel for the Defendant
Objected to the Swearing her upon the General Principle of Law that the
Husband and wife being but one Person neither of them can be a Witness
for or against the other

In Answer to this the Case of a Forcible Marriage Cro. Car. 482. 484
488. 492. Lady Fullwoods Case 1st Vent. 243. Browns Case State Trials
Vol V. 453. the Queen Agst. Haagen Swensden. and also the well known,
Case of Lord Audley Hull. 115. Anshw. Collect. Nof 11. Pa 93. 101 State
Trials Vof 1. Pa 336 were cited, in all which for the Apparent necessity
of the thing the Testimony of the wife was Admitted; and in the latter of
Those Cases it being Demanded of the Judges whether the wife could be a
Witness to prove the Force on herself they Answered that in Criminal Cases,
where the wife is the party grieved and on whom the Crime is Committed She
is a good Witness against the Husband vide Hull 115. but it being urged in the
Present Case that the wife might exhibit Articles and Demand the Surety of
the Peace and that therefore she was not without Remedy the Court after great
Debate refused to Admit her Evidence and the Defendant was acquitted

That a Husband has by Law a Right to beat his wife to any Degree is
by no means clear Crompt 118 6.121 a Edit 15 93 says he may Chastize
her reasonably and in the Writ of Supplecavit is a Salvo of Moderata
Castigatione but Lord C J Hale in the Case of the King agst. Lord Leigh
said that the Moderata Castigatio is not meant of Beating but must be
Applied to confinement of her Person Etc and Serjt. Hawkins in his Pleas of
the Crown enumerating the several kinds of Assault that do not Amount to
a Forfeiture of the Recognizance for the Peace says it is no Forfeiture of such
a Recognizance for even a Husband to beat his wife but he cautiously Adds
the Words [as some day] and cities Hess: 149 contra

But the Case here but is that of an unreasonable Battery such an one
as even Admitting the Law to be as pretended could not for the Degree of it be
Justified; and indeed the Present Difficulty does not arise so much from
the Nature of the Offence as from the Evidence necessary to prove it.

The Law on this Head is very fully collected by Serjeant Hawkins in his
Pleas of the Crown Chap Evidence Sect. 16. Tho it does not there Appear,
that except in the Cases above cited the Judges have ever admitted the
Evidence of a wife against her Husband further than was necessary to Obtain
the Surety of the Peace unless the Dictum of the Judges Hutt. 115. .£d
Audley