[534] MSS. Records of the Superior Court of Judicature (1730-33), fol. 49.
[535] Ibid. (1752-53), fol. 190. The MSS. Early Court Files of Suffolk, No. 29,729, show that on this conviction without further proof "George Rainer [Raynord]," Mary's husband, got a complete divorce. The statutory limit of forty stripes was originally fixed according to the "law of God": Winthrop, Hist. of N. E., II, (ed. 1825-26), 250.
[536] MSS. Records of the Supreme Judicial Court (1781-82), leaf 41. Besides the cases of conviction discussed in the text, there are in the records a number of instances of acquittal for the same offense. In the MSS. Early Court Files of Suffolk (May 28-30, 1700), No. 4715, is an interesting example of extradition for adultery; and the survival of the ancient "chattel" interest of the husband in the wife is revealed by three damage suits for trespass on account of alleged assault upon, and in one for detaining, the wife: MSS. Records of the Superior Court of Judicature (1763-64), fol. 70; ibid. (1767-68), fol. 163; ibid. (1775-78), fol. 144; ibid. (1739-40), fol. 286. A similar case of "drawing away the affections" of a daughter may be found in MSS. Early Court Files of Suffolk (1671-72), No. 1100.
[537] These convictions are usually not for "adultery," but for being in bed together, according to a clause of the act of 1694 providing that when a man is found in bed with another person's wife each offender shall receive not more than thirty stripes, unless one was surprised and not consenting. For examples, some of them acquittals and some convictions, see MSS. Records of the Superior Court of Judicature, I (Oct. 30, 1694), fol. 129; ibid., III (May 7, 1700), foll. 10, 11; ibid., 1736-38 (Aug. 8, 1738), fol. 209; ibid., 1757-59 (Aug. 1, 1758), 391; ibid., 1757-59 (Feb. 21, 1759), 554; ibid., 1760-62 (Sept. 16, 1760), foll. 122, 123; ibid., 1763-64 (Jan. 25, 1763), fol. 11; ibid., 1763-64 (April 26, 1763), fol. 44; ibid., 1767-68 (April 12, 1765), fol. 164; MSS. Records of Gen. Sessions of Suffolk (April 2, 1717), II, 151.
For the earlier period the Athenæum copy of the MSS. Records of the County Court of Suffolk, 34 (March 17, 1671-72), 113 (Jan. 28, 1672-73), 585 (May 5, 1679), 633 (Jan. 27, 1679-80), contains four analogous cases; and there is one in MSS. Records of the County Court of Middlesex (April 1, 1684), IV, 97.
[538] Thus at a superior court held at Falmouth for Cumberland and Lincoln counties, June 28, 1763, the "jurors present John Lawrence, husbandman, and Mary Lawton, both married, for adulterously dwelling together for five years, frequently lodging together in the same bed knowing each other to be married, being found adulterously in bed together and not surprised but consenting, and having carnal knowledge together. John was arraigned, pleaded not guilty, and the jury returned a verdict of guilty except to the charge of having committed adultery. 30 stripes and recognition in £100 to keep the peace." [Mary not tried.]—MSS. Records of the Superior Court of Judicature (1763-64), fol. 90. So also before a superior court held at Worcester, April 20, 1773, Joshua Phillips, laborer, presented by the jury for "committing adultery" with Mary, wife of Edward Rice, was acquitted. Then the jurors present them both "for being found at divers times in bed together.... They pleaded not guilty. Convicted. Joshua fined £20 and costs. Mary 20 stripes and costs."—Ibid. (1773-74), foll. 36, 38.
[539] Acts and Resolves, I, 56 (Oct. 29).
[540] See the "Letter from the Privy Council," Acts and Resolves, I, 56, note; and compare Davis, The Law of Adultery, 12, 13.
[541] Acts and Resolves, I, 208-10.
[542] By 13 Anne: in Acts and Laws (Portsmouth, 1761), 55, 56; and ibid. (Portsmouth, 1771), 42, 43.