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A92236
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Reasons for the Earl of Maclesfeld's bill in Parliament for dissolving the marriage between him and his wife, and illegitimating her spurious issue
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1697
(1697)
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Wing R513A; ESTC R42543
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7,994
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8
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REASONS FOR THE Earl of Maclesfeld's Bill in Parliament For Dissolving the Marriage between Him and his Wife and Illegitimating her Spurious Issue THE Bill by way of Petition according to the usual Form in like Cases recites the Lady's notorious open Adultery having had Children begotten on her Body in Adultery and using vile Practices to have her spurious Issue imposed and obtruded upon him therefore it enacts and adjudges That the Bond of Marriage being notoriously and scandalously violated by her Adultery be from henceforth dissolved annulled vacated and made void That it be lawful for the Earl to Marry again and that the Wife and Children of any other Marriage shall enjoy all advantages as if he had never been Married to this Lady or that she had no Issue It illegitimates and disinherits the Issue begotten or to be begotten on her Body and enacts that all the Estate of the Earl and of his Father shall be in the same plight and condition and Persons inheritable to it as if she had no Child Preserves the Settlement of the Estate which moved from the Earl's Father in all the Limitations other than to her and her Issue As to the Estate which came from her Father gives her what she has by the Settlement in Bishops-Castle during the Earl's Life or after his Death so that it extend not beyond her own Life As to Sutton preserves all the interest after the Earl's Death without restriction For Bishop's Castle Estate it is to be considered that this which was valued at 10000 l. with 2000 paid was to be as a Marriage Portion and therefore was setled in the Earl's Family with the Remainder to his right Heirs indeed she has her Life in it by way of Joynture but as Joynture comes in lieu of Dower according to the Reason of the Common-Law she ought not to have so much as her Life in it for Dower is forfeited by Adultery and this may be pleaded by the Heir though never proved in any Court during the Father's Life agreeably to which even Doctors-Commons takes away Alimony after Proof of Adultery But surely there can be no colour that her Adultery and the just consequent of that should deprive the Earl's Brother of what he claims in remainder by the Settlement The Earl of Maclesfeld's Bill having been Read in the House of Lords and Leave given for him to make good the Allegations of his Bill she has petitioned to be Heard against their Lordships hearing his Proofs upon the suggestion That the same matters are contained in his Libel in the Ecclesiastical Court and that they are properly determinable there Upon which these Particulars are humbly submitted to the Consideration of their Lordships 1. That an Order was made in a full House for admitting his Lordship to make out his Allegations 2. The Pendency of a Suit in Doctors Commons can be no Argument against Proceedings in Parliament unless they were judicially by way of Original Cause 3. If this came by way of Appeal from Doctors Commons before Sentence then it might be Objected That it is of the Nature of an Original Cause But if either Party were aggrieved by Sentence in Doctors Commons it has been held that no Appeal in Parliament will lye but that the Final Judgment is with Commissioners appointed by the King or Chancellor which makes it evident that if the Parliament cannot relieve by the Legislative Power it 's certain it cannot judicially and therefore according to the inference from its being as Ecclesiastical Cause there can be no Relief 4. The Matter is not wholly of Ecclesiastical Cognizance for only the Parliament can illegitimate the Issue 5. The Earl is in reason to be thought to stand better for relief in Parliament than if he had never proceeded in Doctors Commons having gone through all the tedious Methods of that Court for proving his Lady's Adultery where Publication has passed and as many of his Witnesses have been cross-examin'd as she has thought fit 6. Nothing could have hindred a Sentence but such gross delays as argue her Guilt nor ought her own Fault to serve her for an Exception 7. A Sentence in Doctors Commons cannot add to the clearness of the Proofs or credibility of the Witnesses which she has declined examining to 8. She has declared That she would use delays on purpose to keep him from remedy in Parliament and her Agents have declared They would keep the Cause Three years in Doctors Commons 9. If either Party should dye before this Cause were determined no Sentence could be obtained in Doctors Commons and it is to be considered whether it would not be much more difficult to have relief in Parliament against her spurious Issue if she were not alive to make her defence 10. The Earl has Proof to produce before the Lords which was not within his Allegations at Doctors Commons and that of such a nature as may shew that speedy Relief in Parliament is necessary for his safety and the preservation of his Family 11. She has manifestly waved those opportunities for clearing her self which are the only ground why in the case of Adultery after a Separation from Bed and Board chosen by either side the Innocent Party should proceed in the Spiritual Court 12. She has had several long days given her to plead any matter to clear her self and is at last justly denied to have any farther day from which 't is probable she will Appeal to spin out the time and however may according to the methods of Doctors Commons keep the Cause there several years upon those frivolous Allegations which she has put in 13. The Popish Canons still prevailing in that Court nothing but the Legislative Power can give the Remedy allowed by the Divine Law which permits Second Marriages whereas the Popish Canons allow of no farther Separation than has been between these Parties for several years 14. If want of Sentence in the Spiritual Court has been Objected in any other Case the Fact has not been proved in that Court and Publication of the Proofs passed Besides there has been no proof of Children offered in Parliament and either the proof of the Fact has been doubtful or there has been Cohabitation or Reconciliation after the Innocent Party has had notice of the Fact 15. A Sentence in Doctors Commons is not final or certain but subject to an Appeal before the Delegates and in the Case of the Earl of Banbury the Delegates set aside a Marriage which the Court of the Arches held good 16. The Legislative Power is not in its own nature confineable to any Ecclesiastical Rules or Laws and has set several good Presidents of breaking through them The Deprivation of Bishops is of Ecclesiastical Cognizance their Institution held as Sacred as Matrimony and yet in Popish times Bishops have been Deprived by Act of Parliament without Sentence in any Ecclesiastical Court and for matters for which they were not depriveable by any Ecclesiastical Law And
since the Reformation deprivations in the Spiritual Courts have been confirmed by Act of Parliament notwithstanding the Pendency of Appeals The Legislative Power has very lately in the case of Mrs. Wharton declared a Marriage from thenceforth to be Null and Void without any Proceedings in Doctors Commons And farther yet since the Reformation a Marriage which is declared to be contrary to certain Decrees and Canons of the Pope's Law is ratified ex post facto and enacted to be a Good Lawful and Perfect Marriage as agreeing with the Levitical Laws and Holy Scriptures whereunto it says All Marriages by the Laws and Statutes of this Realm have been heretofore most justly referred Further CONSIDERATIONS for the Earl of Maclesfeld's BILL Besides the former Reasons Bishop Cozens's Argument for the Lord Ross and the Earl's Printed Case In Answer to a Mock-Case published for the Lady Maclesfeld so little for her Service as if it had been writ by one of the Earl's Council THAT Pity which Men are apt to shew to the Frailties and Mischances of Ladies becomes ridiculous after a Woman has suppressed that sense of shame which may be thought in some measure to lessen the Faults which it covers with Blushes when she withstands the clearest Conviction and not only justifies that Injury to a Family for which even Repentance cannot expiate but has the assurance to ask to be publickly rewarded for it As if the Absolute Conquest of Modesty were matter of Triumph This would not be thought possible but for the Lady Maclesfeld's way of proceeding to support her Adultery and the Paper which she has published as her Case In which her gentle Casuist who it seems advised her to swear in the Spiritual Court That she was and is a Person of a Virtuous Life and for such was reputed and taken to be after publication of the most manifest proofs of two Children begotten in Adultery has persuaded her to argue upon the presumption of Innocence and yet to give it up as unnecessary for 〈◊〉 her Fortune one of the ends which she proposed to her self before she left the Late Earl's House For whatever her Life has been since her Casuist will have it that she ought to have all she brought back again because as the Paper groundlesly pretends her Husband had Maliciously secluded her from Bed and Board which is in effect to say that though she had been contented with her Separate Maintenance of 300 l. a Year before there was proof of her having Children in Adultery she ought now to have an Allowance from her Husband of 200 l. a Year and if she survive her Mother of Four over and above her Separate Maintenance in consideration of that Additional Charge In plain terms that her Husband ought to keep another Man's Bastards And yet this is not all but according to the Lady Maclesfeld's profound Casuist a Settlement ought to be broken and the Inheritance of Land taken away not only from the Earl but from his Brother Legally interested in the Remainder for the sake of an unrepenting Adulteress with the aggravation of having charged her Husband with subornation of Perjury for proving the Infamy upon her and whose hate to him has been so violent as to extinguish all tenderness for her Lover carrying her in the height of her Rage to wish for a Duel between them and who after all threatens her Husband with an interest against the passing an Act for an Absolute Divorce unless he and his Family consent to give back what had been setled on them for a consideration her share in which she has justly forfeited 'T is now so far from a Question Whether Adultery dissolves the Bond of Marriage without any Sentence in Doctors Commons that her indulgent Casuist supposing a Malicious Seclusion from Bed and Board to be her Case maintains this to be a just cause of Divorce and that a Divorce does always dissolve the whole Frame of the Marriage-Contract Which must needs be meant of Divorce according to God's Law or Natural Equity not such as is in Doctors Commons which does not always dissolve the Contract But 't is to be observed that the Casuist in applying his Notion to the Lady's Case 1. Contrary to truth and without the least shadow of Evidence takes it for granted that she was Maliciously secluded from Bed and Board When to use his own words with little variation 1. The Proof of this ought to be very cautiously received 2. It ought to be very full and clearly made out by Witnesses against whom there can be no shadow of a just exception because she who will venture the having Children in Adultery while she lives wholly Separate from her Husband and then swear in the Spiritual Court that she has lived a Virtuous Life may be suspected at least to be capable of bringing an unfair proof to extenuate as she thinks her Crime Besides Practices of this Nature have already appeared on her side 3. As he insinuates that there can be no just Cause of putting a Wife away till convicted of Adultery or other Personal Misbehaviour towards her Husband by parity of Reason there can be no excuse for living in Adultery with another till the Husband has been convicted of a Malicious Seclusion And they who have observed what Lies have been invented and vile Arts used to keep up the Reputation of the Lady's Innocence must think that even this pretence labours with a strong prejudice 4. Had not her Casuist too much consulted her Pleasures he might have informed her That if she had been without Cause secluded as is falsly given out she ought by her virtuous and retired Life to have endeavoured to regain her Husband's Esteem Whereas the Course of her Life and her own way of exposing it are a Confutation of all her vain Pretences and she her self removes those false Colours with which she would hide Facts that are notoriously known 5. 'T is now admitted by her greatest Advocates that she has had Children in Adultery and though the Children have not hapned till ten Years after living apart from her Husband 't is well known she did not live Virtuous so long 'T is in proof that she has owned a former Miscarriage and the World talks loudly of Occasions for more how largely soever she her self has sworn to her Reputation Therefore I would ask even her own Casuist 1. Whether upon his own Principles she is now entituled to demand a Divorce 2. Whether she has any right to demand her Fortune to be refunded unless she has right to demand a Divorce 3. Whether to give back her Fortune would not be a rewarding Adultery instead of punishing it 4. As he confesses it to be against natural Right that Innocency should suffer Damage would it not be so to deprive the Earl's Brother of part of his Remainder for no other reason but the more plentiful maintaining her in Adultery and easing her Keeper who has hitherto defrayed