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<p n="217"> <note type="authorial" place="margin">1764.<lb></lb>
<rs type="date" id="LMSMGO55605_date43">Octor. 18th</rs>
<interp inst="LMSMGO55605_date43" type="date" value="17641018"></interp>
.</note>
By Adjournment at <rs type="placeName" id="LMSMGO55605_geo192">Hicks Hall</rs>
<interp inst="LMSMGO55605_geo192" type="placeName" value="Hicks Hall"></interp>
<interp inst="LMSMGO55605_geo192" type="type" value="undefined"></interp>
on Thursday 18th. October 1764</p>
<p n="218"> <note type="authorial" place="margin">Cose<lb></lb>
about a Wife's<lb></lb>
being a witness<lb></lb>
agt. her Husband.</note>
At the last General Session of the Peace for the County of Middx a man<lb></lb>
was Tryed upon an Indictment for an Assault and Battery committed on his wife<lb></lb>
and the wife (no other Person being able to prove the Fact) was produced as a<lb></lb>
Witnes. in Support of the Indictment but the Councel for the Defendant<lb></lb>
Objected to the Swearing her upon the General Principle of Law that the<lb></lb>
<rs type="occupation" id="LMSMGO55605_occ169">Husband</rs>
<interp inst="LMSMGO55605_occ169" type="occupation" value="Husband"></interp>
and wife being but one Person neither of them can be a Witness<lb></lb>
for or against the other</p>
<p n="219">In Answer to this the Case of a Forcible Marriage Cro. Car. 482. 484<lb></lb>
488. 492. Lady Fullwoods Case 1st Vent. 243. Browns Case State Trials<lb></lb>
Vol V. 453. the Queen Agst. Haagen Swensden. and also the well known,<lb></lb>
Case of Lord Audley Hull. 115. Anshw. Collect. Nof 11. Pa 93. 101 State<lb></lb>
Trials Vof 1. Pa 336 were cited, in all which for the Apparent necessity<lb></lb>
of the thing the Testimony of the wife was Admitted; and in the latter of<lb></lb>
Those Cases it being Demanded of the Judges whether the wife could be a<lb></lb>
Witness to prove the Force on herself they Answered that in Criminal Cases,<lb></lb>
where the wife is the party grieved and on whom the Crime is Committed She<lb></lb>
is a good Witness against the Husband vide Hull 115. but it being urged in the<lb></lb>
Present Case that the wife might exhibit Articles and Demand the Surety of<lb></lb>
the Peace and that therefore she was not without Remedy the Court after great<lb></lb>
Debate refused to Admit her Evidence and the Defendant was acquitted</p>
<p n="220">That a Husband has by Law a Right to beat his wife to any Degree is<lb></lb>
by no means clear Crompt 118 6.121 a Edit 15 93 says he may Chastize<lb></lb>
her reasonably and in the Writ of Supplecavit is a Salvo of Moderata<lb></lb>
Castigatione but Lord C J Hale in the Case of the King agst. Lord Leigh<lb></lb>
said that the Moderata Castigatio is not meant of Beating but must be<lb></lb>
Applied to confinement of her Person Etc and Serjt. Hawkins in his Pleas of<lb></lb>
the Crown enumerating the several kinds of Assault that do not Amount to<lb></lb>
a Forfeiture of the Recognizance for the Peace says it is no Forfeiture of such<lb></lb>
a Recognizance for even a Husband to beat his wife but he cautiously Adds<lb></lb>
the Words [as some day] and cities Hess: 149 contra</p>
<p n="221">But the Case here but is that of an unreasonable Battery such an one<lb></lb>
as even Admitting the Law to be as pretended could not for the Degree of it be<lb></lb>
Justified; and indeed the Present Difficulty does not arise so much from<lb></lb>
the Nature of the Offence as from the Evidence necessary to prove it.</p>
<p n="222">The Law on this Head is very fully collected by Serjeant Hawkins in his<lb></lb>
Pleas of the Crown Chap Evidence Sect. 16. Tho it does not there Appear,<lb></lb>
that except in the Cases above cited the Judges have ever admitted the<lb></lb>
Evidence of a wife against her Husband further than was necessary to Obtain<lb></lb>
the Surety of the Peace unless the Dictum of the Judges Hutt. 115. .£d<lb></lb>
Audley</p>
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