the reign of Henry I. confirmed afterwards by Edward I. and when, subsequently, it was commuted for money again, a provision of Edward II. declared, that in every instance of such commutation, the King's prohibition should lie.* This was, perhaps, with the hope of repressing personal licentiousness, by the more characteristic punishment of personal exposure and disgrace.

Perhaps, however, it might be traced to the commuted penalty. William the Conqueror had first altered the jurisdiction, and taken it from the Bishops. Their jurisdiction, in these matters, was derived from Rome. Bacon calls it, a garland, which Austin brought over with him, and crowned the Saxon Clergy therewith." Offenders, on this alteration, were tried in a Leet, which was a temporal court, and on conviction, were fined, and the distribution of these fines occasioned the squabble. Sometimes they were payable to the king, sometimes to the church. It was the same in a provision of the Code Matrimoniale of France, (aut solvat domino nostro Regi, aut Abbati:) and Ayliffe shrewdly remarks, that as long as the offence was capital or punishable in the person, the infliction

* 13. Ed. I. Stat. de circumspecte agatis.

was made in quiet, and that the struggle for jurisdiction, between the spiritual and temporal powers, did not commence till commutation came into play.

In reverting, however, to the laws of William the Conqueror, one case appears to have been in contemplation, whether from any recent occurrence of the crime under such aggravating circumstances does not appear, in which it was permitted to a father, discovering his child in the commission of this crime, to kill the adulterer ;* but this permission appears limited to such discovery when made in his own house, or in that of a relation. In a later period, this indulgence was revoked, and allowed only to the husband detecting his wife in the commission of the crime. It was on occasion of one John Britton, in the reign of Henry III. who had punished one Jeffery Miller, of Norfolk, in this way, for debauching his married daughter. But the man was banished, and a proclamation was issued, that no one should presume to do the like unless it was in the case of his

"Si pater deprehenderit filiam in Adulterio in domo suâ, seu in domo generi sui, bene licebit ei oure (lege forsan occire pro occidere) adulterum."

Seldeni ad Eadmerum notæ et specilegium, p. 185. 1. 37.

wife. If he killed her, he would only be guilty of manslaughter, and that of the lowest kind; for which, burning in the hand was the punishment.

Selden, in commenting on the ancient English punishments, speaks of that attached to Adultery, as being a personal mutilation. "Certè apud Anglos jus ejusmodi machum deprehensum mutilandi maritale olim viguisse videtur." And he notices, in the year 1200, some curious letters from King John to the Earl of Southampton, in which he directs the Earl to make some inquiries into the case of some parties said to have been guilty of this offence; and, if found to be guilty, the punishment he mentions is the personal mutilation before referred to. The passage is so curious that it is subjoined.*

Præcipimus tibi quod diligenter inquiri facias per legatos homines de visâ. Si Robertus Pincerna habens suspectam Will.Wake qui cum uxore suâ Adulterium commisserit, prohibuit ei ingressum domûs suæ, et si idem Will post prohibitionem illam domum ipsius Roberti ingressus Adulterium predictum commisit, inde prefatus Robertus mentulæ eum privabit," &c.

This is sufficient to save John from the imputation, so quaintly cast upon him, in common with Stephen, by Matthew Paris in a passage in his History, which displays as much fondness for antithesis, as zeal against this

It was a question before the act, which made malicious maiming felony, whether the excision just mentioned was felony or not; but a case is stated, (Instit. iii. 118.) of one Henry Hall thus taking the law into his own hands, and punishing, in this exemplary manner, a Monk whom he caught with his wife, who was only indicted for a maihem.

Henry I. had punished Adultery with the loss "oculorum genitaliumque." Some of these barbarities (exoculation, and the excision of the ears) found their way into later periods; a cruelty this, remarks one," which was so much the more intolerable, inasmuch as the poor tortured creature could neither be eye nor ear witness of the truth of his own wrong." Bacon says, Henry also made it inquirable at common law, as an offence" contra pacem domini;" but after

crime. "What course was holden in the time of King Stephen and King John, is, to me, unknown; nor is it much to be regarded, seeing the latter did he cared not what; and the former, to gain the good-will of the clergy, regarded not what he did." He thinks, however, that the punishment could not have continued of a personal character, it being so contrary to common sense, to give the bodies of freemen to the will of the clergy, to whom they would not submit their freeholds. Fol. 201.

wards it became finable to the King, and inquirable among the pleas of the Crown.

"The statute of Edward I. which is written in the Old Law French, had some singular provisions in relation to this subject. "Purvue est, qui si homme ravise femme, espouse, damoiselle, ou autre femme, &c. il ait jugement de vie et membre." These are Edward's laws of rape. More particular reference is then made to the crime of Adultery.

It is somewhat curious, that the language of this statute suddenly changes from the French to the Latin; probably, because the subject of it related to the clergy, this matter now being of ecclesiastical cognizance. Another reason has been alleged by Bacon: "So far thereof as concerneth death was written in French, being the most known language to the great men, many of whom were French, by reason of the intercourse that Henry III. had with France in his late wars against the Barons. It was therefore published, by way of caveat, that no person that understood French might plead ignorance of the law that concerned their lives." It inflicts a loss of dower on the adulteress. "Si uxor sponte reliquerit virum suum, et abierit et moretur cum adultero suo, amittat in perpetuam actionem petendi dotem suam, nisi vir suus,