Whether this be true or no, I appeal to Dr. Stuart, who is here in presence, and of counsel for my lady, who, I know, will affirm it, because, not long since, being asked by me of it, he confessed the same. And here is Dr. Farrand, now of counsel for my lord, who was used for his advice in this case of Bury; and Dr. Hone is yet living, who can testify the same. For I will suppose, that a man cannot forget such a famous case as that was wherein himself was employed: but if all these were dead, I know where records be, which still will continue. If this then were the matter in question touching Bury' defectus testiculorum,' what is this to the great controversy now depending before us? and if this be the only precedent, that should be the inducement, that the sentence to be given in this cause is not new, but the like hath been heard of before; I am where I was: We are now to act a novelty, a thing strange, and unheard of in the church of England, whereof let other men be the managers, I may have no hand in it.

men of this land have beat down the power of the pope, and made evident divers questions in matters of theology, beyond all the parts of Christendom: but beyond this, I do know, that the customs of churches, even by the determination of the pope himself, ought to be the rule of judgment in this nature. We have a famous place interserted into the body of the law, written by pope Alexander the 3rd, unto the bishop of Amiens in France. It is worth your hearing: *Quod sedem Apostolicam consuluisti ‹ super his, quæ tibi dubia existunt, gratum ge‐ rimus et acceptum, et tua exide fraternitas Ex tua non parum commendanda videtur. siquidem parte nobis est intimatum, quod quædam mulier tui episcopatus cuidam viro nupserit, asserens quod ob utriusque inguinis rupturam, genitalia ejus abscissa fuissent, nec'dum ab eo cognita fuisset, qui utique factus leprosus, se pariter et sua domui reddidit infirmorum. Mulier vero ad domum patris reversa sicut asseris invenis, alio viro nubere ' desiderat, et conjugali affectu conjungi. Unde But perhaps it will be said, that in some licet Romana Ecclesia non consueverit propother countries, and especially in France, these ter talem infirmitatem, vel propter alia malethings are well known; and the examples officia, legitimè conjunctos dividere, si tamen one kingdom, especially, being so near unto us, 'consuetudo generalis Gallicanæ Ecclesiæ hamay be an inducement for us to do the like, bet, ut hujusmodi matrimonium dissolvatur ; since the reason is the same. My answer there-nos patienter tolerabimus, si secundum eanunto is, that I that live in England, am to dem consuetudinem, eidem mulieri cui voframe myself to those things, which I find in 'luerit nubendi in Domino concesseris faculthe church of England, whereof I see no reason 'tatem.' By this we do find, that the church but there should be as great esteem, as of any of Rome itself doth grant no separations in church in the world. In the days of our fore-matters of matrimony, where the church of fathers, as our nation was held a very noble nation, so was the church of England held a very famous church. Ecclesia Anglicana, as might easily be shewed out of Matthew Paris, and by divers things in some later general councils, did carry a greater sway. And why should we at this time, in any thing, yield unto any church in the world, since it is a thing well known, that the knowledge of divinity doth abound here beyond all other nations? and

terrogatorics, the earl of Essex's direct answer that she was a virgin for him, the verdict of inspectresses, the pomp of compurgators, and all the other colours which could be invented to gloss their proceeding; yet so scandalous was this decision in the eyes of the world, that it lost the characters of all those judges who concurred in pronouncing sentence, and fastened the nick-name of Sir Nullity on one of the sons of a bishop concerned in it, when he was soon after knighted."-And p. 47. "Bury's case was indeed an odd one, but it had no effect when quoted to the bishops and doctors in my lady Essex's case; and though so many hard censures have fallen on those who decided it against the validity of the marriage, yet the event did in some measure justify their opinions; since the lord Essex, though he ventured ou a second marriage, yet had not issue by the lady."-Their Case is cited and considered in the Duchess of Kingston's Case, A. D. 1776, infra.

France doth; and if the pope permit, in France itself, that a divorce should be made, it is but a toleration, and not this neither, but where it is, consuetudo generalis Ecclesiæ Gallicanæ ;' which if you will apply unto this cause in question, you must shew me, that in England it hath been a general custom, that a nullity in marriage may be pronounced propter impotentiam versus hanc';' which if you cannot shew, as indeed you cannot, nor give any true example that ever hath been of any such separation within this church, I may both in law and conscience conclude, that I dare not introduce any novelty, and so consequently pronounce for the nullity of this marriage. Many things are done in France, whereof if we in England had the examination, we should, peradventure, find the fact different from that which they conceived; or if we agree in the fact, we should give another sentence. It is not unknown how, within the space of one year, there hath been much ado in France about two women, Magdalen and Louyse, pretended to be possessed with a great many devils, and how Verrine, a principal spirit in one of them, hath avowed and maintained the mass, invocation of saints, adoration of images, and a great many other points of the grossness of popery; and a book hereof hath been printed and reprinted in Paris, with the approbation of the state, and allow

De Frigidis et Maleficiatis, cap. 2. in supplemento.

ance of learned men; in which the church of England would certainly dissent, and proclaim the whole business to be but an imposture; as the very like was in the days of queen Elizabeth, when the devils of Denhamn were said to possess Sarah Williams and her sister, and some other persons; and much ado was made of it, and divers fond people believing those knacks, turned papists thereupon; yet the issue of all was, that it proved no better than a shameful delusion, and a great abusing of credulous and light-believing persons.

midwives do declare, that in their judgment my lady is a virgin, and therefore, that she was never known carnally by the earl; himself confesseth that he did never know her. So that now, all in substance depending upon his lordships answer, it ought to be our labour to scan that exactly, and to judge of it circumspectly. Doth not he then say, in responsione ad quartum, That though divers times, in the first year of their cohabitation, he did attempt to know her, (which divers times may be twice or thrice, and no more) yet in the two latter years he did never attempt it? But doth he not say plainly, responsione ad tertium, That since the time of his marriage, he had not, nor hath any sickness or impediment to hinder him, but that he might have had, and may have, carnal knowledge with a woman? This is for the general, that he hath no impediment: But, in responsione ad quintum, doth he not descend more particularly unto his own lady: that it is true that he did never carnally know the said lady Frances? Mark now what followeth; but that to the act of carnal copulation he did not find any defect in himself. Indeed he was not able to

3. But now to proceed farther; If it shall be said, it is not the novelty, nor the want of custom here in England, which should prejudice the truth; valeat veritas wheresoever or whensoever it appears: The Proofs are evident whereupon we do stand, and that will enforce the sentence. My answer thereunto is, Let that be made manifest, and clear, and perspicuous unto the conscience of an understanding man, and I shall concur with you: But how shall I find this in a matter of this quality? Because it is nothing else but truth which we do aim at, it were fit that all probations, if not which are possibly, yet at the least which rea-penetrate into her body; but he layeth the sonably may be bad, should be got together to enforce a conclusion of this consequence. My books tell me, In valore matrimonii investigando quæcunque probationes possibiles adhibendæ sunt, et potius debent esse superfluæ 'quàm diminutæ.’ It is Solomon's saying, Prov. xxv. It is the honour of a king to find out a thing. And wherein can judges bestow their time better in a point of difficulty, than to search and search again, by all honest and good means, to know what is the bottom of that which lieth secret, that they may satisfy their own conscience, and the conscience of others, in the sentence which they give, and leave no kind of scruple, which may trouble their own thoughts; Whether these things have been done in this present case, I appeal to your own consciences; whether the writers do not mention divers things; whether the counsel for my lord have not spoke of sundry matters; whether we that be the judges, have not thought of divers courses convenient to be held; of all which no piece or parcel hath been permitted unto us. The proofs then which we have had, do arise only out of the depositions, and if there be not proof sufficient where shall we seek for it: Let us then consider them. I will tell you my opinion of them. I find nothing in them all, which is not in substance contained in the Answers of my lord of Essex: A noble personage saith, That in the hearing of divers things, the earl hath said, that he was not able to know his lady carnally; the earl thinking this to be true. But this is but a relation of wonder spoken extrajudicially; and therefore, for the understanding of the truth therein, we are to have recourse unto that, which by the said earl is judicially deposed. Divers witnesses do speak, that the earl and the lady have lived and lain together for divers years; my lord doth acknowledge it in his answer; the matrons and

|

fault of that upon her, as may be seen in his answer unto the 7th article. And it may not be forgotten, that in the end of the answer to the 4th article, he saith, That sometimes she refused him. These things are evident, and cannot be denied. The only matter which maketh shew against this is, that he acknowledgeth that he hath lain by her, and hath had no motion to have carnal knowledge of her; but especially, that in the end of his answer unto the 6th article, " And believeth he never shall." These words are the shield and buckler of the contrary part; but how easily do they vanish away, or fall to the ground! For I appeal unto you all, who were present at the examinations, (and those were ter of us in number, who now sit here present) whether the earl did not openly subjoin that to his answer; " When I came out of France, I did love her; but I do not so now, neither ever shall I." I appeal unto the conscience of you all, except my lord of Winton, and my lord of Rochester, who were not then commissioners, whether this be so or no: Here then is the matter, it is the want of love, which restraineth all motions of carnal concupiscence, and not any impotency; it is defectus voluntatis, and not defectus potestatis. Let discontentment be removed, and there will be an end of all the inability: Married men best know these things; but out of common reason, there can be no great longing, where there is no great liking: many things they say fall out between man and wife, that for some good space of time there is no carnal conjunction, and yet no impotency concluded thereby may be. The case is famous of Pulcheria, sister unto the emperor Theodosius the younger, who having vowed virginity, was notwithstanding afterward, for great reason of state, thought fit to be married unto Martianus, who thereupon was chosen emperor; she would not

condescend thereunto, till she had promise from him, that her virginity should be preserved, and with such a promise he did marry ber; so that they lived together in shew as man and wife, but indeed as a brother and a sister. Our stories do make mention, that he who was called saint Edward in England, I mean king Edward the confessor, did marry a lady, the knowledge of whose body he never had, neither did this wedded couple ever endeavour to break their virginity. The writers do declare no other reason hereof, but that they had an opinion, that to live in virginity was the more meritorious, according to the superstition of those times. Now were it not a strange arguinent, to conclude in this manner, that because Martianus had not conjugal copulation with Pulcheria, therefore he was a man impotent; or, because king Edward had not carnal knowledge of his wife, therefore he could not know her? I know the circumstances of this present question do differ from those, but the ground of the argument is the same. Want of act, upon private reason, will never enforce a want of power. And this is our case, as I understand it, which maketh me unwilling to consent to this nullity.

undertake; but the note is, that this objection can receive no true answer. I know, that since that time there hath been labour made, to give a salve to this sore, but no man's wit can do it. I said, and say still, that no man's loquence, neither any man's cloquence, can persuade me, that ipsis firmantibus juramento' is of the singular number. I know there hath been tumbling and turning of books, to find some shew to meet with this objection; but nothing can be found which will hold out this water. The proceeding therefore doth appear to be unperfect and defective in that, which is mainly required by the law, which makes me to conclude in this fashion against some unperfect speech touching my lord of Essex his affirming or denying of his own inability towards my lady; that either he doth confess it, or deny it: If he do acknowledge it, where is then his oath 'cum septima manu,' which the law imposeth? If he do deny it, where is then your proof of his inability, since you ground the whole substance of the nullity upon his lordship's answer, That he could not know her carnally?

genere versus hanc,' and not to tell wherein, is to propound a riddle to the world, which no man understandeth. It were a strange thing in learning to say, that such a creature is animal, and not to tell whether it be a man, or a horse, or a fish, or a bird. And although it hath been said, and strongly maintained (by sir Julius Cæsar and sir Daniel Dun), That it is enough in a sentence to pronounce a thing in general, and that the judge is bound to give no reason of it; yet I would be glad to know whether, howsoever I will conceal the particular reason from the hearers or standers-by, yet were it not fit, that I who am the judge, and must give the sentence, or at least consent unto it, should know the ground whereupon I do give it? Give me leave to speak my conscience; I think a sentence,propter latens aliquod impedimentum,' which is perpe

I must yet crave patience to go a little farther. One other exception which I take unto this nullity, is the manner of the sentence, 4. There followeth now another argument, which by us is to be given, which hath ever which I shall deliver bricfly. We have always been resolved should be in general, not exagreed, that the chapter in the law which con-pressing any reason particular wherefore we do taineth our case, is the chapter Litera de Fri-give it. To say that my lord is impotens in 'gidis et Maleficiatis; for if it be not there, it is no where to be found. When we have delivered many things appertaining to this cause out of the best writers of the former ages, or of our own time; as that my lord should be inspected, or that physicians should use their art to discern and remove impotency, if any | were to be found, or that fasting, prayer, and alms, should be exercised to overcome this evil, and divers other points of like nature; it hath still been answered to us, So say the interpreters, but it is not in the law; or it is in the decrees which bind not, but it is not in the decretals; or it is a counsel and exhortation, but it is no mandate or injunction. I now therefore mention something, which is in the law, and in the very body of this law, and it is the Pope's mandate; and that is, that my lord should have given his jumentum cum septima manu, as well as my lady: for want whereof, the whole proceeding is annullated. This is the pope's Commandinent, Quocirca mandamus;' and it requireth the oath of both, ipsis cum septima propinquorum manu firmantibus juramento, 'se cominisceri carnaliter nequivisse,' then 'pro'feratis divortii sententiam inter eos.' This is a thing so clear, that when on Thursday last, by chance there fell mention of it; the counsel for my lady (Dr. Stuart and Dr. Bird) were so far from giving answer to it, that to speak plainly, they stood as men blasted or blighted with lightning, and knew not which way to turn them: as was manifest not only unto us, but to all the standers-by; which I do not utter to do them any wrong, for they are worthy men, both learned and faithful to the cause which they

tuum et incurabile versus hanc,' is nothing but a device to serve a present turn, which we must deliver in such obscure words, to blind posterity that comes after, and to amuse those which will enquire into it, as if we had known something which we held not fit to utter, when in truth we know nothing. I find the texts of the law do still set down the reason, and give a case particular, as frigidity, or section, or unfitness of the generative part, or some such other matter; but for an inability, propter

latens impedimentum,' my dullness is such, that in the whole book I cannot discover: And it is a mystery that cannot enter into me, how a man should be potent unto other women, and impotent to his wife, if it be not in case of plurensy, which is not latens impedimentum,

and which also findeth lucida intervalla.' It was the assertion of him in the law, (Cap. Literæ) That he did not know his wife, but that he had a power to know other women.' But what wise man doth believe him? Or what is there in the text which doth declare it to be true? I will end this point with that of our Saviour in the 29th of St. Matthew, That there are three sorts of Eunuchs, or men unfit to marry; the one is of God's making, the second is of men's making, and the third is of their own making. The first are they that are past from their mother's belly, who either are frigidi, or such as have not members fit for generation, or some apparent debility. The second are those who are castrated by men, or by some violence have that hindred in them, whereunto by nature they are fit in respect of procreation. I will not here dispute that idle maleficium, because yourselves are flown from it. The third hath no coherence with this nobleman. Let me know then, in which of the former two you do place it. Is he past from his mother's womb? Why then do you give him leave to marry again, that he who hath deluded and frustrated one, may also delude another? If he be in the second rank, why do you not tell us what the violence is which he had sustained from men, or from any other creature? Let us have, I pray you, some kind of satisfaction, and let not this ænigma in general blind us, lest the world should say, that wilfully we shut our eyes against the truth.

easily follow, if such dissolutions of marriages be permitted. I will name only two. The first is the hazard of violating and annulling of marriage by an ordinary practice; for if the gap be open, who will not run in? Aud the judge must dispense the law indifferently to all, if the proofs be accordingly; for we may not say, that it is for noble personages, and great peers in the state, and not for others of inferior rank. Whatsoever couple therefore have no children, and live discontented, come presently to take part of this general jubilee: And albeit they know in their consciences, that it which they attempt is unlawful; yet, to satisfy their fancy, they will collude the one with the other, and enter a prosecution secretly agreed upon, howsoever in open shew they seem to differ the one from the other: And who can doubt, but for money or favour, they may procure wit nesses, and others who are to be used by the formality of the law, to testify and depose so much as serves the turn? By which means we are at a fair pass, when not only the marriagebed shall be defiled, and adulteries made frequent, which is against the second table of the law, but perjury shall be committed, and God's name taken in vain, which is repugnant unto the first table.

A second inconvenience is the danger, lest both parties which are freed from their matrimony, should divers years after be returned to it again, when perhaps the husband by a second wife hath children, and the wife by a second husband hath store of issue also; for there is no doubt in the law, but if a man supposed to be frigidus, and therefore divorced, shall afterwards marry, and by begetting of children shew himself not to be impotent, but apt for genera tion, this man is to be taken from his second woman, and returned to his first wife; and the woman for whose marriage a nullity was pronounced in respect of the insufficiency of her mate, must be now taken from her second companion, and returned to the first. Of this the reason is apparent, quia decepta est ecclesia ; they adjudged him to be impotent upon wrong information, whom experience and truth bath declared to be potent. And what man can foretel, how variety of times may produce other judgments? There may be question of land or inheritance, of legitimation or illegitimation; and a wise man would be unwilling to bring it on the stage when he is dead and gone, and to make it the fable of the world, whether his children be born lawfully, or to be reputed in the rank of bastards. The world is subject to much mutability, and judges of future times may peradventure be led with the power of some great persons, and perhaps may think upon other considerations, that it is but a conceit, that a man should be potent unto another woman, and impotent to his wife; or that the common law doth not know any maleficium; or that they do not believe, that there may be latens impedimentum, perpetuum et incurabile versus But look on the other side, what are the in-hanc,' when they see that the husband is, in congruities, or other absurdities, which will shew of the world, a lusty able man, and hath

6. One reason I have more, why I yield not to this nullity, and then I have done. It is drawn from the inconveniences which will follow thereupon, if we dissolve the matrimony in such case as is now desired. I look first on the detriment and harm which will follow, if the marriage do continue in force and in vigour, and I do find, that all the inconvenience doth redound but to one person. Between a lady and her husband there is some discontentment, which time and God's grace may easily remove: There is then an end of that controversy. Or, if the disagreement shall never be appeased, it is no more but one lady doth want that solace which marital conjunction would afford unto her; which many a good woman is enforced to endure, and yet commits no sin, neither labours to violate the laws of the church: For suppose the husband be sick of some long disease, or languishing weakness, must not the wife sustain it with patience and quietness? Suppose the husband be captive in some foreign nation, or prisoner in his own country, whereby occasion of marital connexion is taken from the wife, no divine will pronounce, that a separation is in this case to be sought. Let a woman do that in modesty, which others are enforced to do out of necessity; and let her expect God's leisure, in fasting and in prayer, and.in other humiliation. This is all the inconvenience which ariseth to one person, if she have not the performance of conjugal duty.

well proved his potency, by begetting three, or five, or seven, or ten children upon another woman. These are pretty things, if a man do well consider them, and will serve to make distraction between kinsman and kinsman, and make work for the lawyers, and keep the courts at Westminster that they shall not be idle; which if we could not learn otherwise, yet Bury's case before remembered doth teach us, who was divorced from his wife in the third or fourth year of queen Elizabeth; and when his brother had enjoyed his land until the fortieth year of the said queen, then was he thrust out of it, and the questioned son, or his heir, was put into possession of it by trial of law; a great deal of money being spent in that contention, and both civilians and common lawyers in great numbers were entertained of both sides; and yet the controversy was not so appeased, but that of my certain knowledge, within these three years it had been raised again, and a strong device was laid how to bring this about again; only myself withstood it, and would not give way unto it, when I was divers times consulted thereabout; conceiving very well that it would not be long before some prohibition would come out of some of the king's courts, because the -common law disliked, that men's inheritance, especially after judgments, should be disturbed, when the parties whom most of all it concerned, are dead long before, and cannot answer for themselves; whereas, peradventure, if themselves had been living, they could have answered that for themselves which other men knew not. And there ought to be a settled course in all things appertaining to inheritance.

no ground of conscience, and therefore that it is the hand of God upon them, who giveth not a blessing unto that which was unduly sought. You have thus at large heard my opinion against the annullation of this marriage. Now, if you ask me, What would you then have done concerning this couple of noble personages? My answer is, That I would have a reconciliation by all means to be laboured; and although that be difficult to bring about, yet it is the more honour when it is effected. Charity will forgive and forget the highest offences. It is St. Augustine's judgment, "That in the greatest breaches between man and wife, reconciliation is the best; and the worthiest pains that can be bestowed, is to bring that about." There wanteth only one or more good mediators, and then great tinngs will be compassed. The disagreement was uconceivable between God and man, yet Christ, that great mediator, did take it away. The breach was very bitter between England and Spain, yet our most blessed sovereign, as a gracious intercessor, did give an end unto it. Let divines be used now, as much as lawyers have been used heretofore. Take the godly counsel of the one, which will be given freely, as you have taken the advice of the other with much expence of money. This I wish for, this I pray for; and if my counsel had been used, before things grew to this height, I would have used my best means to have wrought an atonement. But because there is no hope thereof, and this doth expect a legal decision, proceed you that please unto this separation. Give your sentance in scriptis as you have declared your opinion in verbis. Five might have served the turn by the words of the Commission, if seven had dissented; but you have seven suffrages, and therefore proceed; only this I crave of the register, that he do make his act, that this sentence is given, Joanne Episcopo London.; D. Joanne Bennet milite; D. Francisco James; D. Thomas Edwards; dissentientibus, potissimum verò Georgio Archiepis

This is the substance of that matter which the Archbishop of Canterbury, out of certain Notes which he had drawn up, was ready to have uttered, and no one material point is added thereunto, as appeareth unto me, the writer hereof, comparing it with the Notes at such time as I ended the writing of this, which was on the 28th Sept. 1613, three days after the time when it should have been spoken.

By this time, I hope you see, that it is not out of wilfulness, or prejudicate conceit, that I have impugned this nullity, but out of ground of reason, and out of scruple of conscience, which is it that must accuse me, or excuse me before the ever-living God. I know you have heard what other men have said, and they have answered for themselves. Upon all which grounds I make this conclusion, That howsoever this matter of separation with great ear-copo Cantauriensi renitente. nestness hath been pursued, yet it is the surer and the safer way to leave it as we find it, and in no case to dissolve it. I oft remember that saying, which is frequent among the canonists, Tolerabilius est aliquos contra statuta hominum dimittere copulatos, quam conjunctos legitimè contra statuta Domini separare.' That concerneth us who be the judges; and for the parties themselves, who perhaps can be content to be severed, and to marry elsewhere, let them know this from me, that they may best expect a blessing from God when they live in that state where fewest scruples shall arise in The KING'S LETTER to the Archbishop of their mind: From which whether they shall be free in leaving their old conjunction, and be taking themselves unto a new, I refer to their wiser thoughts, when in all probability, if any cross or thwart shall arise in their new-intended matrimony, this perplexity and anguish will still follow their souls, that they have done that whereof in their truest meditations they have

CANTERBURY.

My Lord; After I had received, and read your papers, which the, bishop of Litchfield brought me, I found it very necessary that I should make answer thereunto at my first leisure: for whereas, before, at my last meeting with you, ye seemed to me to be only as yet unresolved what sentence to give in this busi