Year Book Case: Hilary, 1 Henry VII, fos.6-7v 

On the second day of the term, Vavisour rehearsed how a person had brought a writ of trespass for assault, battery, and imprisonment lasting for two days, which the defendant had committed against him in the Ward of B., London. The defendant pleaded in bar to the action as follows: that they had a custom in London, that if an information should be made to a Constable of London, that someone within their jurisdiction were with any woman in adultery, then he should call the Bedel and others within the same parish, who would go to the house with him. And if they should find a man in adultery, that they should take him to the Counter prison, and there they should leave him. And they say in fact, at another time and parish [than those alleged in the charge], which they specify precisely, an information was given to this defendant, then and previously the Constable of the same parish, that the plaintiff was engaged in adultery with a certain woman in the same parish. By virtue of this information, he called to him the other defendants, who according to the said custom went to the house, etc., and there they found the plaintiff in adultery, wherefore they took him and led him to the Counter, and delivered him to the warden of the prison...

And the plaintiff demurred in law on this; and now he prayed his judgement, because the plea was not valid. For one reason, that such a thing cannot lie in our law, because it is merely spiritual...

Colow disagreed, and Townsend argued that the plea was good. Firstly, he said that the matter lay well in prescription, because it was good for conserving good rule and peace. For in each adultery, there is a wrong in our law to a third party, that is, to the husband. For it is not lawful to anyone to take any woman; and if he should do so, this is a wrong to the husband, and this is shown by the husband's right to have an action of trespass, for trespass done to his wife, and also for taking and leading away his wife, which illustrates well the wrong to a third party; the which wrong moreover is not only done to the husband but is also a disturbance of the peace and a grievance to all the neighbors. And since it is a wrong to someone and a common disturbance to all the neighbors, a prescriptive right to correct such behavior may be invoked. And as to the argument that it is a spiritual offence, etc., and should have spiritual correction, this is not particularly to the purpose; for by the law of Holy Church, if the husband should find one in adultery with his wife, he can kill the man and his wife for the wrong done to him, without penalty. And this law proves that it is a wrong done to the husband. It is a great sin and peril according to the law of God and man, and such an occurrence can destroy a whole city or borough, for the neighbors will call the husband a cuckold, and on this shall develop a grudge, and from this battery and manslaughter, and so a great disturbance of the peace and of good governance, the which is prohibited, according to Bracton, by the law of the Romans, the French, and the English. And the king of England prohibits all of these things upon grievous temporal pains. And also, it was prohibited by the Civil Law, for Phineas killed one of the sons of Israel who slept with a wife of a gentile and Placuit multum deo, as it appears, percussit Phineas & cessauit scelus. Moreover, a wife taken in adultery shall be dead according to law. And these things show clearly that this custom could have a lawful origin, wherefore, etc. ...

Gatesby: I think that the prescription is good. And inasmuch as he wished to argue this, all the Justices went into the Exchequer Chamber; but more was not done on that day, and it was adjourned. And on the following day the Chief Justice went from his place in the Star Chamber, and Starkey went into the Exchequer, and then Gatesby wished to have argued the matter... And he said that the matter lay well in prescription and custom, since it was in preservation of the peace. If a constable should see a person who intends to assault another, he should then arrest him and not suffer him to break the peace; for in such matters that may lead to a violation of the peace and the public weal, it is lawful to make an arrest, etc. Hence, this matter lies well in custom. But it is not well pleaded, for he has not alleged what shall be done with him, when he is in the Counter, that is, how long he shall remain there until he has made fine, whether one day, or two days, or in perpetuity; and if in perpetuity, then the custom would not be lawful. And in the case of a custom in London, we cannot know the fine unless it be alleged; and since it has not been stated here, etc....

Nele argues that the matter does not lie in custom, because it is strictly a spiritual guilt....

Townsend: I think that the plea is good, and that the matter lies well in custom. For adultery is a temporal matter, as well as spiritual, and against the peace of the land. For the peace of the land is that each man shall be in peace within his home with his wife, children, goods, and chattels; and he who does wrongly trouble one of and of these does break the peace and the public weal of the same borough and city. And if any person enter his home to rob him, it is a felony or burglary. And it be to take his goods, it is a felony, or at least a trespass; thus to take and misuse the wife is a greater trespass, a larger shame and villainy, and a major threat to the peace and public weal of the same city. And in each adultery, there is a wrong to the husband, who is a third party, and the breaking of his home, etc., wherefore, etc. And as to the argument that he has not said what shall be done with him when he is led to prison, it is not necessary, for the defendants are only officers, and it is sufficient for them to allege sufficient matter to excuse themselves. As if a constable should see a man stealing, he may arrest him, and commit him to ward, without saying further what would be done with him then, etc.

Gatesby: This is true, for the case of stealing is at common law, and we say that we know the procedures in such a case. But we do not know in the case of a private custom in London, etc.

Townsend: This is not a private custom, but for the advantage of the public weal, and a custom which is lawful in each city, borough, and town throughout the realm.

Gatesby: If it be so, then I agree, although he ought to show what the fine shall be, etc. ...

(The report ends with an adjournment. N.B., the translation above omits argument on various technical faults alleged in the pleadings by the defendant.)

See also Select Trespass Cases 2 (Selden Society 103), p. 384, John Castleacre v. John Shipman et al, Trin. 1371; in \usr\res\pub\trespas2.ss.