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Crime, Poverty and Social Policy in the Metropolis
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1764.
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Octor. 18th
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.
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By Adjournment at
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Hicks Hall
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on Thursday 18th. October 1764
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Cose
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about a Wife's
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being a witness
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agt. her Husband.
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At the last General Session of the Peace for the County of Middx a man
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was Tryed upon an Indictment for an Assault and Battery committed on his wife
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and the wife (no other Person being able to prove the Fact) was produced as a
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Witnes. in Support of the Indictment but the Councel for the Defendant
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Objected to the Swearing her upon the General Principle of Law that the
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Husband
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and wife being but one Person neither of them can be a Witness
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for or against the other
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>
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"219"
>
In Answer to this the Case of a Forcible Marriage Cro. Car. 482. 484
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488. 492. Lady Fullwoods Case 1st Vent. 243. Browns Case State Trials
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Vol V. 453. the Queen Agst. Haagen Swensden. and also the well known,
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Case of Lord Audley Hull. 115. Anshw. Collect. Nof 11. Pa 93. 101 State
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Trials Vof 1. Pa 336 were cited, in all which for the Apparent necessity
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of the thing the Testimony of the wife was Admitted; and in the latter of
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Those Cases it being Demanded of the Judges whether the wife could be a
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Witness to prove the Force on herself they Answered that in Criminal Cases,
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where the wife is the party grieved and on whom the Crime is Committed She
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is a good Witness against the Husband vide Hull 115. but it being urged in the
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Present Case that the wife might exhibit Articles and Demand the Surety of
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the Peace and that therefore she was not without Remedy the Court after great
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</
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Debate refused to Admit her Evidence and the Defendant was acquitted
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"220"
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That a Husband has by Law a Right to beat his wife to any Degree is
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by no means clear Crompt 118 6.121 a Edit 15 93 says he may Chastize
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her reasonably and in the Writ of Supplecavit is a Salvo of Moderata
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Castigatione but Lord C J Hale in the Case of the King agst. Lord Leigh
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said that the Moderata Castigatio is not meant of Beating but must be
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Applied to confinement of her Person Etc and Serjt. Hawkins in his Pleas of
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the Crown enumerating the several kinds of Assault that do not Amount to
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a Forfeiture of the Recognizance for the Peace says it is no Forfeiture of such
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a Recognizance for even a Husband to beat his wife but he cautiously Adds
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</
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the Words [as some day] and cities Hess: 149 contra
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"221"
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But the Case here but is that of an unreasonable Battery such an one
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as even Admitting the Law to be as pretended could not for the Degree of it be
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Justified; and indeed the Present Difficulty does not arise so much from
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the Nature of the Offence as from the Evidence necessary to prove it.
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The Law on this Head is very fully collected by Serjeant Hawkins in his
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Pleas of the Crown Chap Evidence Sect. 16. Tho it does not there Appear,
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that except in the Cases above cited the Judges have ever admitted the
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Evidence of a wife against her Husband further than was necessary to Obtain
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the Surety of the Peace unless the Dictum of the Judges Hutt. 115. .£d
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</
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>
Audley
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