Wiki: parish law on adultery

: From The present practice of a justice of the peace; and a complete library of parish law, vol 1, pp19-24, 1790.

	Adultery.
Adultery, what it is.	Adultery, in stat. 1. H. 7. c. 4, and in many other places termed Advowtry, in Latin Adulterium, is properly the sin of incontinence between two married persons; and if only one of the persons be married, it is nevertheless adultery: but in this last case it is called single adultery, to distinguish it from the other, which is double. The Julian law, among the old Romans, punished adultery with death; but in most countries, at this time, the punishment is by fine, and sometimes banishment: in England it is punishable by fine, penance, &c. This crime was severely punished by the ancient law of the land, but the present proceedings against adulterers are chiefly in the ecclesiastical courts. The most lucrative method, however, of pursuing the adulterer, seems to be, that of instituting an action against him in one of his majesty's courts at Westminster, by the husband of the adulteress, for seducing and debauching his wife. The following is a remarkable instance, wherein the damages were laid at the extraordinary sum of ten thousand pounds, and a verdict was given for the whole sum.
Excessive damages given in a case of adultery	M. 30 G. 3. Parsloe v. Sykes. The plaintiff was a grandson of the late general Parsloe, and a captain in a reginment of dragoons;-the defendant, the only son of a the opulent sir Francis Sykes, bart. and a cornet in the same regiment. It was laid down by Mr. Erskine, counsel for the plantiff, as an indusputable principle, that points of honour ought, among military men especially, to be attended to with the nicest punctillo; and that the violation of them ought to be branded with the deepest stain of infamy. It appeared in evidence, that the defendant, soon after he joined the regiment at Dorchester, declared, in the mess-room, before some of his brother officers, that he should like to debauch the plaintiff's lady--that he was introduced to the plaintiff, and was in the habits of the closest intimacy in his family, while he continued in the regiment. That the plaintiff was a gentleman, elegant in his person, accomplished in his manners, of the strictest honour and integrity, and of the most generous and hospitable disposition. It was also proved, that his lady ranked with the highest of her sex, in point of accomplishments, previous to this connection; and that she was not only one of the most beautiful, but also one of the most chaste and virtuous of women. In addition to this, she was the darling object of her husband's fondest affection, and he had married her without a fortune. It appeared, that the plaintiff and his wife were admired by all who had the honour of their acquaintance, as the happiest couple in the world--an example of domestic felicity in the married life. It appeared also, from the testimony of a number of the officers of the regiment and other witnesses, that a more affectionate husband could not be found than Mr. Parsloe; nor a more fond, faithful, and dutiful wife, than Mrs. Parsloe;--that the defendant was often invited, in common, with his brother officers, to the plantiff's house; but that he never was distinguished for any marks of favour or preference. It was also made evident, that the plantiff's lady having been long indisposed, and a change of air prescribed for the benefit of her health, the defendant had a phaeton, in which he often used to take Mrs. Parsloe an airing, with the knowledge and consent of her husband. Mrs. Parsloe was during the summer on a visit at Windsor, at the house of her sister Mrs. Wallace, the wife of captain Wallace, while Mr. Parsloe was on duty with his regiment at Sudbury. Mrs. Parsloe, in company with her brother-in-law, that he had been a brother officer with Mr. Parsloe, and a particular friend; and that in consequence of this, the defendant often visited Mrs. Parsloe during her stay at Windsor. It was also proved, that after this she went with her husband to Ipswich, and that the defendant came down to the races at that place, and visited them, without any shadow of suspicion--That the lady of the plaintiff rode with the defendant on the race-ground, in his carriage, attended by her husband and others; and that during the evening previous to the elopement, it was settled that Mrs. Parsloe was to take an airing with the defendant on the next afternoon. Accordingly the defendant came to the plaintiff's door by six o'clock, and Mrs. Parsloe ascended the carriage; and to the inexpressible anguish and irreparable loss of her distracted and inconsolable husband, returned no more, the defendant having taken the plaintiff's wife to Thetford, where he slept with her that night. From thence he brought her to Osborne's hotel in the Adelphi; and afterwards cohabited with her in lodgings in the neighbourhood of St. James's Street. The defendant told a clergymen of Ipswich, at the Mount coffee-house, what he had done; boasting of the excellenc of his prize, and of the splendour of his triumph. He also declared, that his journey to Ipswich had answered his purpose: and that Mrs. Parsloe lived with him in Bennet-street, where he should be glad to see the witness at dinner. He besides added, that he had heard Mr. Parsloe, and his brother-in-law, Mr. Wallace, were in town, and he was ready to fight him. The Counsel for the defendant endeavoured to mitigate the quantum of damages on the following grounds:--That Mr. Parslow had been extremely negligent of his wife, and had allowed her to admit of the visits of the defendant at improper hours; that though the defendant was a young gentleman of great expectations, yet he was not in possession of a single guinea; and that a man who could not pay with his purse, ought not to suffer in his person.--These allegations, however, failed in the proof, notwithstanding the great experience, judgment, and ability of Mr. Bearcroft were exerted in their support. Mr. Erskine, in a masterly address, in reply, bore down everything before him, by the powerful energies of the most persuasive eloquence. Lord Kenyon afterwards, in an admirable address to the Jury, observed that the fact charged against the defendant, was proved beyond all possibility of doubt. The only matter, therefore, remaining for their consideration, was the quantum of damages. The case, he observed, having been established, with many circumstances of aggravation, it behoved the jury to mark their verdict with very exemplary damages. They accordingly, without going out of court, gave their verdict for the plaintiff, with ten thousand pounds damages, being the sum at which they were originally laid. M S. Case.
Adultery entails a spurious race.	It is an additional aggravation to the crime of adultery in a woman, that it not only entails a spurious race on the husband, for whom he is under obligation to provide; but also destroys that peace and mutual endearment, which ought always to subsist in the marriage-state. 3 Bac. Abr. 569.
Punishment by canon law.	By the canon law, if any offend their brethren by adultery, whoredom, incest, or any other uncleanness, the churchwardens shall present them to the ordinary, and they shall not be admitted to the holy communion, until they be reformed. Can. 109. If a wife go away, and remain with an adulterer without being reconciled to her husband, she shall lose her dower. 2 Ins. 435.
Separation a mensa & thora.	If there be a separation for adultery a mensa & thora, the issue born afterwards is presumed primi facie not to be the husband's, unless it appear upon proof that the husband, after such separation, did cohabit with his wife. 11 H. 7. 27. a. 1 Rol. Abr. 359. 7 Co. 42. A lewd woman, after her husband's death, married her adulterer, and within six months and a day after her first husbands's death had a child: it was adjudged the first husband's, because he had the dominion of the woman at the time of her conception. Palm. 9. Co. Lit. 8.
Keeper of a bawdy-house punishable.	But although lewdness be properly punishable by the ecclesiastical law, yet the keeping of a bawdy-house, comes also under the cognizance of the temporal law, as a common nuisance; not only in respect to its endangering the public peace, by a drawing together dissolute and debauched persons, but also in respect of its apparent tendency to corrupt the manners of both sexes. 3 Inst. 205. 1 Haw. 196.
Adulterers, &c. going to a suspected house.	Upon information given to a constable, that a man or woman are in adultery or fornication together, or that a man and woman of evil report are gone to a suspected house together in the night, the officer may take company with him, and if he find them so, he may carry them before a justice to find sureties of the good behaviour. Dalt. c. 124. 2. Haw. 61.
Of proceeding against bawdy-houses, &c. by stat. 25. G. 2	To encourage prosecutions against persons keeping bawdy-houses, and other disorderly houses, by the 25 G. 2. c. 36, it is enacted that if any two inhabitants of any parish or place, paying scot and bearing lot therein, give notice in writing to any constable (or other peace-officer where there is no constable) of such parish, of any person keeping a bawdy-house, gaming house, or any other disorderly house in such parish, &c. the constable shall forthwith go with such inhabitants to a justice of the peace, and shall, (upon such inhabitant's oath before such justice, that they believe the contents of such notice to be true, and entering into a recognizance in the penal sum of 20 l. each, to produce material evidence against such person) enter into a recognizance of 30 l. to prosecute with effect such person at the next sessions or assizes, as to the justices shall seem meet: and on the constable entering into such recognizance, the justice shall issue his warrant for bringing the accused person before him, and shall bind them over to appear at the said sessions or assizes; and shall also, if he thinks fit, demand and take surety for his good behaviour in the mean time. And if the constable shall neglect or refuse, upon such notice, to go before a justice, or to enter into recognizance, or shall be wilfully negligent in carrying on the prosecution, he shall forfeit 20 l. to each of the said inhabitants. And on trial any person may give evidence against the defendant, notwithstanding his being a parishioner, or having entered into such recognizance. The constable shall be allowed all the reasonable expences of the prosecution, to be ascertained by two justices; and shall be paid the same by the overseers of the poor: and if such person be convicted, the overseers shall forthwith pay 10 l. to each of such inhabitants, on pain of forfeiting double to the said persons. No indictment of such offence shall be removed by any writ of certiorari. This act, which was to continue for only three years, was made perpetual by the 28 G. 2. c. 19. s. 1.
Wife may be indicted with the husband.	A wife may be indicted, together with her husband, and condemned to the pillory with him, for keeping a bawdy-house; for this is an offence as to the government of the house, in which the wife has a principal share; and also such an offence as may generally be presumed to be managed by the intrigues of her sex. 1 Haw. 2.
Frequenting bawdy-houses.	If a person is indicted for frequenting a bawdy-house, it must appear that he knew it to be such a house; and it must be expresly alledged that it was a bawdy-house, and not that it is suspected to be so. Wood. b. 3. c. 3. Of an indictment for keeping a disorderly house, a female witness swore, in order to prove it a bawdy-house, that she was the wife of a sailor, and, during her husband's absence out of the realm, she had often prostituted herself there. Lord Raymond said, this was an odious piece of evidence, and ought not to be heard. Barl. Bawdy-h. A woman cannot, it is said, be indicted for being a bawd generally, for that the bare solicitation of chastity is not indictable. 1 Haw. 196. 1 Salk. 382. In general, all open lewdness grossly scandalous is punishable upon indictment at the common law. 1 Haw. 7.
Punishment	And offenders of this kind are punishable with fine and imprisonment, and such other infamous punishment as the court in discretion shall deem proper. 1 Haw. 196. A man was indicted for open lewdness, in shewing his naked body on a balcony, and other misdemeanours, and was fined two thousand marks, imprisioned for a week, and bound to the good behaviour for three years. 1 Sid. 168.

parish law on adultery

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