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and which also findeth • lucida intervalla.' It easily follow, if such dissolutions of marriages was the assertion of him in the law, (Cap. Li- be permitted. I will name only two. The teræ). That he did not know his wife, but that first is the hazard of violating and annulling of he bad a power to know other women.' But marriage by an ordinary practice; for if the what wise man doth believe him? Or what is gap be open, who will not run in? And the
there in the text which doth declare it to be judge must dispense the law indifferently to all, - true? I will end this point with that of our Sa- if the proofs be accordingly; for we may not
viour in the 29th of St. Matthew, That there say, that it is for noble personages, and great are three sorts of Eunuchs, or men unfit to peers in the state, and not for others of inferior marry; the one is of God's making, the second rank. Whatsoever couple therefore have no is of men's making, and the third is of their children, and live discontented, come presently own making. The first are they that are past to take part of this general jubilee: And albeit from their mother's belly, who either are fri- they know in their consciences, that it which gidi, or such as have not members fit for gene- they attempt is unlawful; yet, to satisfy their ration, or some apparent debility. The second fancy, they will colluule the one with the other, are those who are castrated by men, or by some and enter a prosecution secretly agreed upon, violence liave that bindred in them, whereunto howsoever in open shew they seem to differ the by nature they are fit in respect of procreation. one from the other : And who can doubt, but I'will not here dispute that idle mulejicium, be for money or favour, they may procure wit-, cause yourselves are flown from it. The third nesses, and others who are to be used by the hath no coherence with this nobleman. Let formality of the law, to testify and depose so me know then, in which of the former two you much as serves the turn ? By which means we do place it. Is he past from his mothers are at a fair pass, when not only the marriagewomb? Why then do you give hiin leave to bed shall be defiled, and adulteries made free inarry again, that he who hath deluded and quent, which is against the second table of the frustrated one, may also delude another? If he law, but perjury shall be committed, and God's be in the second rank, why do you not tell us baine taken in vain, which is repugnant unto
the from men, or from any other creature ? Let us A second inconvenience is the danger, lest have, I pray you, some kind of satisfaction, both parties which are freed froin their matriand let not this ænigma in general blind us, mony, should divers years after be returned to lest the world should say, that wilfully we shut it again, when perhaps the husband by a second our eyes against the truth.
wife hath children, and the wife by a second 6. One reason I have more, why I yield not husband hath store of issue also; for there is to this nullity, and then I have done. It is no doubt in the law, but if a man supposed to drawn from the inconveniences which will fol- be frigidus, and therefore divorced, shall afterlow thereupon, if we dissolve the matrimony in wards marry, and by begetting of children shew such case as is now desired. I look first on the himself not to be impotent, but apt for generadetriment and harm which will follow, if the tion, this man is to be taken from his second marriage do continue in force and in vigour, woman, and returoed to his first wife; and the and I do find, that all the inconvenience doth woman for whose marriage a nullity was proredound but to one person, Between a lady ounced in respect of the insufficiency of her and her husband there is some discontentment, matc, must be now taken from ber second comwhich time and God's grace may easily remove: panion, and returned to the first. Of this the There is then an end of that controversy. Or, reason is apparent, quia decepta est ecclesia ; if the disagreement shall never be appeased, it they adjudged him to be impotent upon wrong is no more but one lady doth want that solace information, whom experience and truth bath which marital conjunction would afford unto declared to be potent. And what man can her; which many a good woman is enforced to foretel, bow variety of times may produce other endure, and yet comunits no sin, neither labours judgments? There may be question of land or to violate the laws of the church : For suppose inheritance, of legitimation or illegitimation ; the husband be sick of some long disease, or and a wise man would be anwilling to bring it languishing weakness, must not the wife sustain on the stage when he is dead and gone, and to it with patience and quietness ? Suppose the make it the fable of the world, whether his chilhusband be captive in some foreign nation, or dren be born lawfully, or to be reputed in the prisoner in his own country, wherehy occasion rank of bastards. The world is subject to much of marital connexion is taken from the wife, no mutability, and judges of future times may perdivine will pronounce, that a separation is in adventure be led with the power of some great this case to be sought. Let a woman do that persons, and perhaps may think upon other in modesty, which others are enforced to do considerations, that it is but a conceit, that a out of necessity; and let her expect God's lei- man should be potent unto another woman, and sure, in fasting and in prayer, and in other hu- impotent to his wife; or that the common law miliation. This is all the inconvenience which doth not know any maleficium; or that they ariseth to one person, if she have not the per- do not believe, that there may be latens impeformance of conjugal duty:
• dimentum, perpetuum et incurabile versus But look on the other side, what are the in hanc,' when they see that the busband is, in congruities, or other absurdities, which will shew of the world, a lusty able man, and hath
well proved bis potency, by begetting three, or | no ground of conscience, and therefore that it five, or seven, or teu children upon another is the hand of God upon thein, who giverb not woman. These are pretty things, if a man do a blessing unto that which was unduly sought. well consider theni, and will serve to make dis You have thus at large heard my opinion traction between kinsman and kinsman, and against the annullation of this marriage. Now, make work for the lawyers, and keep the courts if you ask me, What would you then have at Westminster that they shall not be idle ; done concerning this couple of noble perwhich if we could not learn otherwise, yet Bury's sonages? My answer is, That I would have a case before remembered doth teach us, who was reconciliation by all means to be laboured; divorced from his wife in the third or fourib and although that be ditcult to bring about, year of queen Elizabeth; and when his brother yet it is the more honour when it is expected. Bad enjoyed his land until the fortieth year of Charity will forgive and forget the highest the said queen, then was be thrust out of it, ofences. It is St. Augustine's jodguient, and the questioned son, or his heir, was put into “ That in the greatest breaches between man possession of it by trial of law; a great deal of and wite, reconciliation is the best; and the money being spent in that contention, and both worthiest pains that can be bestowed, is to civilians and common lawyers in great numbers bring that about.” There wanteth only one or were entertained of both sides; and yet the more good mediators, and then great things controversy was not so appeased, but that of will be conspassed. The disagreement was limy certain knowledge, within these three years conceivable between God and man, yet Christ, it had been raised again, and a strong device that great mediator, did take it away. The was laid how to bring this about again ; only breach was very bitter between England and myself withstood it, and would not give way Spain, yet our most blessed sovereign, as a unto it, when I was divers times consulted gracious intercessor, did give an end unto it. thereabout; conceiving very well that it would | Let divines be used now, as much as lawyers not be long before some prohibition would come have been used heretofore. Take the godly out of some of the king's courts, because the counsel of the one, which will be given freels, common law disliked, that men's inheritance, as you have taken the advice of the other with especially after judgments, should be disturbed, much expence of money. This I wish for, this when the parties whom most of all it concerned, I pray for; and if my counsel had been useri, are dead long before, and cannot answer for before things grew to this height, I would themselves; whereas, peradventure, if them have used my best means to have wrought an selves had been living, they could have answer- atonement. But because there is no hope ed that for themselves wbich other men knew thereof, and this doth expect a legal decision, not.
And there ought to be a settled course in proceed you that please unto this separation. all things appertaining to inheritance.
Give your sentance in scriptis as you have By this time, I hope you see, that it is ont declared your opinion in verbis. Five might out of wilfulness, or prejudicate conceit, that I have serred the iurn by the words of ihe Comhave impugned this nullity, but out of ground | mission, if seven had dissented; but you have of reason, and out of scruple of conscience, seven suffrages, and therefore proceed; only which is it that must accuse me, or excuse me this I crave of the register, that he do make before the ever-living God. I know you have his act, that this sentence is given, Joanne Episheard what other men have said, and they have copo London.; 1). Joanne Bennet milite; D. answered for themselves. Upon all which Francisco James; D. Thomas Edwards; dissengrounds I make this conclusion, That howso- tientibus, potissimum verò Georgio Archiepisever this inatter of separation with great ear-copo Cantauriensi renitente. nestness hath been pursued, yet it is the surer and the safer way to leare it as we find it, and This is the substance of that matter which io no case to dissolve it. I oft remember that the Archbishop of Canterbury, out of certain saying, which is frequent among the canonists, Notes wbich he had drawn up, was ready to • Tolerabilius est aliquos contra statuta homi- have nitered, and no one material point is num dimittere copulatos, quam conjunctos added thereunto, as appeareth unto me, the
legitimè contra statuta Domini separare.' writer hereof, comparing it with the Notes at That concerneth us who be the judges; and for such time as I ended the writing of this, which the parties themselves, who perhaps can be was on the 28th Sept. 1613, three days after content to be severed, and to marry elsewhere, the time when it should have been spoken. 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 i hey shall be
CANTERBURY.' free in leaving their old conjunction, and be. My Lord; After I had received, and read taking themselves unto a new, I refer to their your papers, which the, bishop of Litchfield wiser thoughts, when in all probability, if any brought me, I found it very necessary that I cross or thwart shall arise in their new-intended should make answer thereupto at my first leimatrimony, this perplexity and anguish will still sure: for whereas, before, at my last meeting follow their souls, that they have done that with you, ye seemed to me to be only as yet whereof in their truest meditations they have unresolved wbat sentence to give in this busi
ness, till you had heard it thoroughly disputed, last words to me at your parting from Windsor, that by that means ye might be fully informed and partly upon a line scraped out in your of the state of the cause ; it appears now by paper of doubts : for I am sure you think me these papers, that you have, after your last day's noi so blunt a secretary, but that I can read a consultation, put on a negative resolution, line so scraped out. In your last speeches with grounded upon fundaments of divinity and con me, you remember you told me what assurance science, as you think, which hath moved me to you had of the earl's ability out of his own send you herewith my judgment upon your ar- mouth, which you said you could not but trust, guments, in regard that I did ever hold it ne- because he was so religious a nobleman. But cessary, that in a matter of this weight all my when I told you of the other party's contrary commissioners should be as near of one mind, affirmation, you remember how you used the as might be ; and therefore I would be sorry word of iniquity; and how far your interlined that your private conceits should so blind your line seems to have a harmony with this word, judginent, as to make you and your followers yourself can best judge. Now then, if I would draw the catharrows (perplex or torment) ask you what proof you have of the one's reliagainst your yoke-fellows; for that I may now gion more than the other's, you must answer open plainly my heart unto you, at my first me, by judging upon the exterior ; and how reading of your papers from the bishop, I deceivable that guess is, daily experience chanced to cast mine eye first upon the paper teaches us---But with a holy protestation that of your arguments, before I had looked upon I never knew any thing but good in the young your letter, and lighting upon your first words, earl. Was not this the ground of master Ro
Inasmuch as we do firmly believe, &c.' Ibert Bruse's incredulity, because he knew the protest I thought it had been some strange earl of Gowry to be truly religious; and did confession of faith, that you had intercepted not beg a register. See Bothwell in his preface amongst some of the sectaries ; but when I of his book · De viris illustribus.' And as for had read out the rest of that first article, God your judgment of the other party, Christ's preis my judge, I thought that paper had been cept is the best answer unto you, Nolite judisome pasquil made against this divorce, which care.' But if the question were to judge of the coming to your hands ye had sent me, and earl's inclination, whether is it likely that you therefore without reading any farther therein, I or I could best judge of it; I, he having been looked upon your letter, which resolved me of bred with my late son, and served him so long; all these doubts; but after that I had fully or you, that never spoke with bim but once or perused, and rightly considered of all your twice in your life, and never koew either good papers, I found your principles so strange, and or evil of him but out of his own mouth? I will your doubts so far sought, that I thought it ne- conclude, therefore, with inverting the argucessary, as I have already said, to set down ment ; that if a judge should have a prejudice unto you my observatioos upon them. But to in respect of persons, it should become you conclude my letter with that plainness that be- rather to have a kind of faith implicit in my cometh one of my quality, I must freely con- judgment, as well in respect of some skill í fess, that I find the grounds of your opposition have in divinity, as also that I hope no honest so weak, as I have reason to appreliend, that man doubts of the uprightness of my conscithe prejudice you have of the persons is the ence; and the best thankfulness that you that greatest motive of breeding these doubts into are so far my creature, can use towards me, is, you ; which prejudice is the most dangerous to reverence and follow my judgment, and not thing that can fall in a judge for misleading of to contradict it, except where you may denionhis mind. And the reason moving me to this strate unto me that I am mistaken, or wrong apprehension, is partly grounded upon your informed; and so farewel. James R.
97. The Earl of NorthAMPTON'S Case: Mich. 10 JAMES I. A. D.
1613. [Coke's Reports, 132.] The Attorney-general informed against Tho. ton was guardian of the Cinque-ports, than Gooderick, gent. sir Richard Cox, kt. Hen. before. Vernon, gent. Henry Minors, serjeant of the 2. That the said earl had writ a book openly waggons, Tho. Lake, gent. and James Ingram, against Garnet, &c. but secretly he had writ a merchant, ore tenus in the Star-chamber, the letter to Bellarmine, intimating that he writ last day of the Star-chamber, and charged the said book ad placandum regem, sive ad Gooderick that he had spoken and published of faciendum [placendom) populum,' and rcthe earl of Northampton, one of the grandees quested that his book might not be answered ; and peers of the realm, one of the king's Privy and that the archbishop of Canterbury had cerCouncil, lord Privy Seal, and lord guardian of tified it to the king, and that the said Goodethe Cinque-ports, divers false and horrible scan. rick did relate it to one Dewsbury, a bachelor dals, scil. that more Jesuits, Papists, &c. have in divinity, who had acquainted the said earl come into England, since the earl of Northamp- with it. Gooderick being examined, confessed
the words spoken; but to extenuate his of other, or of any the great officers of the realnı' fence said that he was not the first founder: ut 2 R. 2, c. 5, and the king is contained withand he vouched the said sir Richard Cox, who in the act of West. 1. cap. 36, as appears in confessed that he related to Gooderick the Dyer 5. Mar. 155. matter concerning the book of the earl, and his 3. As to the tbird point it was resolved, that letter to Bellarinine, but not the words con if one hear such false and horrible rumours, cerning the Cinque-poris; and that the arch- either of the king, or of any of the said grandees, bishop of Canterbury had intormed the king of it is not lawful for him to relate to others, that it, to the intent that the earl of Northampton he hath beard J. S. to say such false and horrishould not be lord treasurer, and to extenuate ble words; for if it should be law jul, by wis bis offence, he vouched the said Vernon, who means they may be published generally, &c. upon examination confessed that which Richard And this doth appear by the said statute, viz. Cox had published, but that he was not the that the party shall be imprisoned until he find first author, but he cited tbe said Lake, who out the party who spoke them, wbich proves did likewise confess what Vernon had said, but that it was an offence, or otherwise be should that be heard it from serjeant Nichols, who be not be punished for it by tine (for this is implied) ing exainined confessed it; and with all, that and imprisonment. one Speaket related it to bim, and that he had 1. It was also resolved, that the offenders at heard it from one Janes Ingram, and James bar, if against then the proceedings had been Ingram being examined, confessed the words by indictment upon these statutes, no judgment concerning the said book of the earl, and of the could be had against them that they should be lettter to Bellarmine ; and that in the month imprisoned until they found their author : for, of October he heard the said words of two Eng-for example, Gooderick did not relate to Dewslish fugitives at Leghorn, and never did publish bury that he heard from sir Richard Cox, but them until the death of the earl of Salisbury, he related the saine words as of himselt': and treasurer, who died in May last: and all the for this no judgment can be given ugamst hiin, said defendants confessed at the bar, all that that he shall be imprisoned until he tind bis auwith which they were charged, and at the hear-thor; for this that be ought to be indicted tor ing of this case were eleven judges of law, the words which he lumseni did speak, and then, Fleming justice being absent propter ægritudi de non apparentibus et non existentibus eadem
est ratio.' When the indictment is general And so it was resolved, that the publishing without any relation to a certain author, the of talse rumors, either concerning the king, or judgment, which always ought to be given of of the higla grandees of the realm, was in soine matter apparent within the record, cannot be cases punished by the common law: but of this that he shall be imprisoned, until lie liatii found were divers opinions. Yet it was resolved in his author. general:
And it was resolved, that if A. say to B. 1. Touching the matter and quality of the “ did you not hear that C. is guilty of treason," words. 2. Touching the persons of whom they &c. this is tantamount to a scandalous publicaare spoke. 3. The manner of contrivance, or tion: and in a private action for slander of a publishing of them. 4. Touching the punish- common person, if J. S. publish that he hath ment, for which cause divers acts have made heard J. N. say, that J. G. was a traitor or declaration, and bave put things in certainty. thiet; in an action of the case, if the truth be
And first of all, as to the words or rumours such, he may justify. themselves.
But if J. S. publish that he hath heard gene1. They ought to be false and horrible. 2. Of | rally without a certain author, that J. G. was which discord or slander may arise betwixt the a traitor or thief, there an action sur le case king and his people, or the grandees of the lieth against J. S. for this, that he hath not realm, West. 2. cap. 24, or between the lords given to the party grieved any cause of action and commons, 2 l. 2, c. 53, by which great against any, but against himself who published peril and mischief may come to all the realm. the words, although that in truth he might bear Ib. The subversion and destruction of the realm. them; for otherwise this might tend to a great ibidem. And for this the said act of 2 R. 2, slander of an innocent: for if one who hath against rumours, faise and horrible messages læsam phantasiam, or who is a drunkard, or of (mesoignes) i. e. lies.*
no estimation, speak scandalous words, if it 2. As to persons, they are declared to be should be lawful for a man of credit to report prelates, dukes, earls, barons, and other nobles them generally, that he had heard scandalous and grandees of the realm, and also of the words, without mentioning of bis author, that chancellor, treasurer, clerk of the privy seal, would give greater colour and probability that steward of the houshold of our sovereign lord | the words were true in respect of the credit of the king, justice of the one bench and of the the reporter, than if the author himself should
be mentioned, for the reputation and good name Note, these statutes were occasioned by of every man is dear and precious to him: and reason of some scandalous rehections, that had a record was vouched in Mich. 33 and 34 Ed. been raised by William Wickham, and the and in the 30 Ass. pl. 10, and in the exchequer, clergy, against Jobo of Gaunt, &c. et è Mich. 18 E. 1, rot. 4. tra.
Note, that all the Commissions of Oyer and
Terminer give authority to enquire, de illici- , which the king shall have a fine, and the party 'tis verborum propalationibus.' Vide le stat. shall be imprisoned, and the court of Star-cham5 R. 2, cap. 6, and 17 R. 2, cap. 8, concerning ber may inilict corporal punishment, as to stand 'rumours, and in 3 Ed. 2, in the exchequer, upon the pillory, and to have papers about his Henry Bray spoke of John Foxlee baron of the head. exchequer: it was resolved, that the judgment And if the ofienders confess it, then to pro(in an indictment upon the said statutes, when ceed ore tenus upon their own confession; and the words are spoken generally, without relation for the publication of the said words, all the to a certain author, is, that ihe offender shall | defendants were punished by all the presence, be fined and imprisoned, for this is implied and l'una voce nullo contradicente,' by fines and included in the said statutes, as an incident to imprisonments; and Gooderick and Ingram the offence, although that it is not expressed. were fined the most, for that Gooderick had no Also the party grieved may have an action authority for the words concerning the Cinque
de scandalo magnatum,' and recover bis da- ports, nor could Iogram find any author for to mages. Also the party grieved, and the king's vouch, that he heard by persons unknown at attorney, if the offenders deny it, may exbibit a Leghorn in foreign parts; and therefore it was bill in the Star-chamber against the offender, in taken as a fiction of his own.
98. Proceedings against Dr. RICHARD NEILE, Bishop of Lincoln,
for Words spoken in the House of Lords : 12 JAMES, A. D.
1614.* [1 Cobb. Parl. Hist. 1259.] On May 23, 1614, a Message from they had taken the said oathis might not enter, House of Commons was sent up to the Lords, safely, into conference of the said matter. by sir Edw. Hobby and others, in these words : Aftirining farther, That it did strike, not at a
“ That at such time as the knights, citizens, • branch, but at the root of the prerogative of and burgesses of the Commons House of Par • the imperial crown; and that be doubted liament sent up to the Lords a Message, pray
lest in such a Conference, as was desired, ing a Conference with their lordships about "there would, from some of the committees of Impositious: they hoped that, neither out of that house, proceed some unduritul and sedithe words' nor watter of the Message, it had tious speeches, unfit for their lordships to been possible to have framed any sinister or 'hear, tending w a dangerous rent and distracunworthy construction. That notis is hstanding, tion of both houses, and to make an alienation by public and constant fame, they had heard, | between the king and his subjects.' That of to their heart's grief, that one in this place such scandal their house is so sensible, that and within these walls, namely, the lord Lishop they have sent these messengers to signify 01 Lincoln (Richard Neile), in order to dissuade their grief, and that they held the Lords so hothe Lords from a Conference so desired, as nourable, that they cannot but also take notice aforesaid, did use words to the effect following, thereof. Wherefore, that house did desire or the same words, viz. • That the matter, that their lords hips will join with them in some • whereof conference was by that house desired, course to give theni satisfaction for so great a ' is a noli me tangere ; in conferring, also, wrong done to the Commons; which they have • that the taking the oaths of allegiance and taken so to heart, that they have determined supremacy is an impediment; so, as whoso to forbear all parliament maiter, until they may
* The following story, printed in the account parliament ?'. The bishop of Durbam readily of Waller the poet's Life, 1712, and repeated answered, God forbid, sir, but you should': by Harris in his Life of James 1, and also by you are the breath of our nostrils.' WhereFiume in his Ilistory, and Johnson in his Lite upon the king turned and said to the lishop of Waller, throws some light on this bishop's of Winchester, Well, iny lord, what say you?" character. “ Waller frequented the Court of Sir,' replied the bishop, I have no skill to James 1, where he heard a very remarkable judge of parliamentary cases.' The king ariconversation, which the writer of the Life pre. swered, “No put-offs, my lord ; answer me fixed to his Works, who seems to have been well
· Then, Sir,' said he, ' I think it is informed of facts, though he may sometimes err lawful for you to take my brother Neale's moin chronology, has delivered as indubitably cer ney; for he offers it.' 'Mr. Waller said, clic tain : He found Dr. Andrews, bishop of Win-company was pleased with this answer, and the chester, and Dr. Neale, bishop of Durham, wit of it seemed to affect the king; for a cerstanding behind his majesty's chair; and there tain lord coming in soon after, his majesty happened something extraordinary, continues cried out, “Oh, my lord, they say you lig with this writer, in the conversation those prelates my lady i' No, Sir,' says his lordship in had with the king, on which Mr. Waller did confusion; but I like her company, because she often reflect. His majesty asked the bishops, has so much wit.' "Why then,' says the hing,
My lords, cannot I take my subjects' money, do you not lig with my lord of Winchester when I want it, without all this formality of there?'