Maintenance 2. Or only to declare a Nullity of the Matrimonial Contract between Patrimoniale and Gallina For the first If the Archbishop's Sentence was such as required Co-habitation that Mr. Cottington should give due Benevolence and Maintenance to Gallina Then his Sentence was absolutely Null Quia à non judice lata that Archbishop having no Jurisdiction over Mr. Cottington and an usurpation of the just Rights of our King the Supreme and of our Bishops who from and under him have a sub-ordinate Jurisdiction over the Subjects of England and so over Mr. Cottington Sure I am the Archbishop of Turin had no Jurisdiction over Mr. Cottington a subject of the King of England First Not Supreme that 's only in our King as our Laws and Oaths testifie Secondly Not Subordinate for that must be derived from the King who surely never gave the Archbishop of Turin any Jurisdiction over Mr. Cottington or any of his Subjects And therefore if the Archbishop of Turin's Sentence was such our King and Bishops might justly question and censure it for what it was a Nullity and an illegal usurpation of the Rights of the Church of England For the second If the Archbishop of Turin's Sentence was only that the Matrimonial Contract between Patrimoniale and Gallina was a Nullity then I consider First That it is confess'd that Res judicata pro veritate accipitur and the Sentence may be put in Execution Si sententia judicis appellatione nullâ suspensa sit nec ex alia causa potest restaurari But this must be understood in respect of the Parties litigant Facit jus irretractabile inter partes saies the Law and Lawyers And they add Sententia à qua non est appellatum facit jus inter partes etiamsi ab initio fuit injusta Secondly But yet this Rule has several limitations and fallentiae as they call them for Si sententia judicis sit ipso jure nulla contra jus lata tum sine appellatione infringitur non transit in rem judicatam And a good Lawyer with relation to the Laws cited in the Margint tells me His legibus dicitur quod sententia lata contra leges statuta vel constitutiones principum est ipso jure nulla ideo citra appellationem causa de novo in judicium deduci potest And Panormitan sententia pro Matrimonio non transit in rem judicatam cum extat impedimentum lege divinâ vel humanâ super eo non est dispensatum So that it is not every Sentence of a Judge though not suspended by an appeal which passes in rem judicatam no not in the same State or Kingdom and therefore the Archbishop of Turin's Sentence declaring the Matrimonial Contract between Patrimoniale and Gallina to be a Nullity if it be against any Law of God or Man as undeniably it is against both if the grounds on which it was given be such as they have been represented to me is it self Null and to all intents and purposes invalid Thirdly But let the Archbishop's Sentence as to the Nullity be what it will true or false just or unjust yet if it concerns a Subject of England our King and Bishops have good reason and a just power to question and examine it and according to its Validity or Nullity admit or reject it Fourthly And that it does highly concern a Subject of England is evident For although ab Origine it concern'd only Patrimoniale and Gallina two of his own Subjects yet Mr. Cottington having before or since the Sentence I know not married Gallina He is highly concerned to be sure that the Archbishop's Sentence is just and true For if it be not if indeed there be no Nullity in that Contract then what Casuist or Court soever determines and decrees that he shall Co-habit with Gallina as his Wife does ipso facto decree 1. That he shall Co-habit with another Man's Wife 2. That he shall live in continual Adultery 3. That if he have any Children by her they are none of his for is pater est quem nuptioe demonstrant 4. And so in case she out live him he shall not be in a possibility to leave any lawfull Issue to continue his Name and Family to Posterity Fifthly If then the Archbishop's Sentence be untrue if the contract between Patrimoniale and Gallina was Matrimonium ratum and no Nullity then all those sad or sinful consequences will necessarily follow and so not only Mr. Cottington by Co-habiting with another Man's Wife but his Judges too who command such Co-habitation will be guilty of those horrid Impieties For if it be true as undoubtedly it is that the Magistrate who prohibits not Impieties when 't is in his power is himself guilty of them Then much more will he be guilty who expresly commands them And that Magistrate whoever he be who by a judicial Sentence commands Mr. Cottington to Co-habit with another Man's Wife for so she is in case there be no Nullity commands him to commit and continue in Adultery Sixthly It will therefore both in Prudence and Conscience highly concern our Bishops and Ecclesiastical Judges to whom the cognizance of this cause belongs that they be morally sure that the Contract between Patrimoniale and Gallina was indeed a Nullity before they decree and require Mr. Cottington to Co-habit with her It is evidently repugnant to the nature of Justice and the integrity of a just Judge to give a certain damnatory Sentence upon an uncertain and dubious Ground Now 't is absolutely impossible that any Man should be sure of such a Nullity as is declared in the Archbishop's Sentence unless he know the reasons on which that Sentence is grounded and that they are such as efficaciously prove the Nullity And if Mr. Cottington doubt of the Nullity as of necessity he must till by some rational medium it appear and be not sure Gallina is indeed his Wife I am sure he sins if he Co-habit with her seeing he Co-habits with one who for ought he knows is another Man's Wife And then the Rule is certain Quicquid fit reluctante vel dubitante conscientiâ est peccatum Seventhly If it be said That the Archbishop of Turin has by a judicial Sentence declared that Contract to be a Nullity It is confessed but that is no just ground for Mr. Cottington nor any body else to be assured it is so unless the Reasons on which his Sentence is grounded appear to be cogent and sufficient to prove such Nullity That Archbishop and his Assessors neither are nor pretend to be Infallible and the Sentence of a fallible Authority so long as the Reasons of it are unknown is not sufficient to satisfie and quiet a doubting Conscience Our Holy Mother the Church of England has truly told us and all her Sons subscribe it that General Councils may and have actually erred much more may a particular Popish
as Man and Wife and separate them from their second Spouses If it be objected That the Sentence was given in another Country where the Judges of England have no Jurisdiction and in an High-Court from whence there lieth no Appeal and that the Judges of England have no Superiority to call their Sentences in question and that therefore the Lady cannot call that Divorce in question here We answer That the principal cause in this case of the Lady's is not to reverse or call in question the Sentence given in Scotland but the principal Cause here is Whether her Marriage made in England with Sir John be of Validity or no For that as we say Sir John had another Wife living viz. Isabel Kennedy at the time of her Marriage without any mention to be made by the Lady of any Sentence of Divorce given in Scotland against which our Allegations if Sir John object That he was Divorced from her by Sentence in Scotland this question of the Divorce is brought in but incidently by Sir John in this Cause and also vainly and impertinently if it can be proved that the truth is contrary to that Sentence for that Sentence is in Law meerly void and cannot Barr the Lady for the reasons before alledged and for that Ecclesia was decepta in giving of that Sentence Now when a Sentence which is void in Law and especially against a Marriage is called in question but incidently before any Judge whatsoever though an inferior in a Cause which doth principally belong unto his Jurisdiction that Judge may take knowledge of and incidently examine the validity of that Sentence whether it were good or no by whom and wheresoever that Sentence was given though he were never so Superior a Judge not to the end to reverse or expresly to pronounce that Sentence to be void or not void but as he findeth it by examination of the Cause to be good or void so to give Sentence accordingly and determine the Cause principally depending before him without ever mentioning the erroneous Sentence in his Sentence Neither can the Sentence given here for the Nullity of the Lady's Marriage upon other matter than was pleaded and proved before the Judges in Scotland although the same Sentence had been principally called in question and directly pronounced to be void any ways impeach the Justice of Scotland for sith Judges in all Courts and Causes must judge according to that which is alledged and proved before them what impeachment is it to the justice of any Judge although his Sentence be revoked and a contrary Sentence given by another Judge when the parties between whom the Sute is either cannot or through negligence or collusion will not alledge or make such proof before him the first Judge as they might but afterwards before the second Judge good and sufficient proof is made a matter which falleth out every day here in England in every Civil and Ecclesiastical Court upon appeal made from one Court to another and the like falleth out in all other Countreys and yet the former Judge whose Sentence is revers'd thinketh not himself any whit impeached of injustice thereby That the absurdities which would ensue may by example more plainly appear if the Law should not be as we say Put this Case A Widower in the confines of England towards Scotland marrieth a Wife in a Parish-Church publickly in the presence of a hundred Witnesses and afterwards they live together by the space of a Year and have a Child at the years end upon some discontentment they both being desirous to be rid the one of the other the Woman in England sueth her Husband to be Divorced from him pretending that at such time as he married her he had another Wife living and produceth Witnesses which prove that he had married another Wife before he married her and Paradventure make some probable shew that that Wife was living when he married his second Wife who in truth was dead before as the Man could have plainly proved by twenty Witnesses if he had listed notwithstanding the Husband being willing to be rid of his Wife either would not plead that his former Wife was dead or else would not make any proof thereof Whereupon the Woman obtaineth Sentence against the Man whereby the marriage between them two by this collusion and error is pronounced void from which Sentence there was no Appeal or Provocation Now within a Month after this Divorce this Man goeth into the Confines of Scotland not ten Miles from the place where he and his divorced Wife formerly dwelt and there marrieth another Woman being ignorant of the former Wife and collusory Divorce and there Co-habiteth and dwelleth with her This Woman shortly after understanding of the premisses and that she could not be his lawful Wife but liv'd in Adultery with him desireth before the Judge in Scotland under whose jurisdiction they both dwell to be divorced from him and to be delivered from her adulterous living with him and offereth to prove all the Premisses most manifestly Were it not now a most absurd and abominable thing that this Woman should have no remedy any where but be enforced to live still in Adultery with this Man because the Sentence of divorce was given by a Judge in England pronouncing the Marriage between the Man and his second Wife to be void whereas it can be most manifestly and apparently proved that his first Wife was dead before his second Marriage and so the Sentence was given against the apparent truth And what impeachment of injustice can this be to the judge in England before whom it was never proved That the Man's first Wife was dead to have his Sentence reversed upon new proofs made before the Judge in Scotland Now between the Lady's Case and this Case there is no difference in truth of matter and point of Law only by reason of the multitude of the Witnesses the nearness of the time and place when and where these things in this case were done The truth thereof may more easily and readily be proved than in the Lady's cause it can but if the truth in her Case be proved though with more difficulty the Cases are all one If any Man shall yet doubt whether this cause can be heard and determin'd by the Ecclesiastical Courts in England it is desired That Sir John's Councel considering the Marriage was made here in England and the Lady and Sir John do both dwell here and by Law Sir John is not compellable to appear in any other place than England for this matter they would tell before what Judge this matter should be heard and determined For it is to be presumed that when two persons live in Adultery together and so in continual sin and the one of them seeketh redress and to be freed from that sinfull and adulterous life no Man will say That he or she shall be compelled to live notoriously in Adultery still and have no Judge at all to separate
the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to
them and remedy this enormity If further doubts be made how where or in what manner proof shall be made in this Cause it is said that this Question doth not concern the Question What Court or before what Judges the cause shall be heard and determined but to this it is answered That the proofs shall be made in such manner as they be ordinarily in all other Cases that is by the Answers of the contrary Part upon Oath by such Witnesses as they can procure voluntarily to come before the Judges here from whence or out of what Countrey soever they can procure them If they will not come voluntarily then if they be within the jurisdiction of the Judge and the party producent think so good he shall have Processes to compell them to come before the Judge if they dwell so far off as that it will be too chargable to bring them before the Judge then a Commission shall be granted to some Commissioners to examine them near the places where they dwell and this if they dwell within the Judge's Jurisdiction but if the Witnesses dwell out of the Judge's Jurisdiction in any other Place Realm or Countrey Then the Judge of the Cause may direct a Commission requisitory to the Judges of the Places or Countreys where the Witnesses dwell to intreat them to examine the Witnesses remaining there by their Authority and to send their Depositions to the Judges of the Cause also by the Records of other Courts or any other Instruments or Writings which may any ways further the Cause these being the ordinary and usual courses used for making of Proof in every Cause every Day and will not be denied by any acquainted with the Proceedings in any Ecclesiastical or Civil Courts Q. 1. Whether in the Tucin Process for the dissolution of the Marriage betwixt Frichinono and Gallina there appears so manifest a Collusion that if the said Process comes to be examin'd before our Court the Sentence for the dissolution grounded on that Process will be declared Void A. I am of Opinion in the Affirmative A Collusion as all other Clandestine Acts and Agreements is accounted by the Law to be Difficilis Probationis and therefore a direct Proof is not required but Conjectures and Presumption alone arising not only from what has been done but from what was omitted will pass for full and concludent Evidence ut per Felin c. Praeterea n. 2. de Testibus D. D. com omnes in c. Literis c. tertio loco de praesumpt Now there does not appear throughout all the Acts that the parsrea used any diligence to defend the Cause 'T is true there was the formality of a Proctor but he seems rather to be appointed to substantiate Proceedings on the other side than to defend the Marriage on this for that it appears by the Sentence there was nothing done on the part of Frichinono the words are Visis Actis ex parte Gallinae tum distributis Then 't is Gallina that is at all the expence though she obtains in her Suit and likewise gives an ample Reward of 100 Crowns in Gold to the Court for Testimonials Frichinono though in his Answer upon Oath he believes it to be a good Marriage and never knew of any such Aversion as is alledged yet he adds That if it shall be so determined he doth not dissent but that the Marriage may be declared Void and as he doth nothing in this instance so neither does he Appeal Now by these Omissions the Collusion appears which Collusion renders the Judgment Void but especially against a third Party and that it has been thus often determined in like manner Monoch Consil. 501. n. 8. 688. n. 35. Sententia inter alios lata etsi certis in casibus nocet id tamen intelligitur quando ille victus omnem adhibuit diligentiam ne vinceretur Atque ita constare debet eum bona fide litem pertractasse L. Si duo patroni F. De jurejur and. ita communiter Atqui nostro in casu non adhibuit ut ne vinceretur quia non modo non contradixit sed quodammodo consensit in that he declares he will not dissent Praeterea saith he culpa negligentia ejus detegitur quia à sententiâ latâ non appellavit ut fieri solet jure permissum est Et accidit quod haec omissio Appellationis est tacita quaedam jurium renunciatio quae alteri quam renuncianti nocere minimè potest sicuti in specie Baldus Salicet in L. 2. C. quibus res jud non nocet ibi Imo non appellans cum facere id debuit colludere cum adversario praesumitur L. Si servus plurium § Sed si anteF De Leg. Decius Consil. 306. n. 4. allique ibid. This was in a Civil Cause but the present Case is much stronger being a spiritual Cause ubi vertitur periculum animae and odious too in that it is for the dissolution of a Marriage which in consequence may occasion the Sin of Adultery in which there might have been pleaded many things as exceptions to the Persons of the Witnesses and their sayings But chiefly the Cohabitation with all its Circumstances and at last the Fear that is pretended is but Reverential Why what can be concluded from hence but that by such Artifice the Church is deceived and the Law in that Case is Quod quandocunque constiterit de errore retractabitur sententia c. Fraternitas de frigidis maleficiatis Q. 2. Whether the pretended proof of the Force and Fear she suffered from her Father in that Process be not insufficient in Law A. I am of Opinion that the Proof is insufficient 1. For that they are but single Witnesses nunquam probant etiamsi mille jungentur especially in Arduis such as are Criminal and Causes de matrimonio dirimendo But more especially where the presumption of Law is against it as in our Case if we Consider the Co-habitation with all its Circumstances 2. The matter deposed does not amount to such a Force as the Law takes notice of And 't is chiefly ex auditu either from her own Relation or the Father's or Brother's as they heard her say She had no Affection That she would not consent That her Father would Force Her Giacono Batta and Compeggio depose no more Rath Quaglini and Monfort say He told them so and she too but separate Galliero heard Dominico chiding and threatning but 't was but the Father told him 't was in the Business with Frichinono None but Cornelius swears to Knowledge and he to an uncertain time At Supper once she told her Father She would not consent for that she had no Affection for him Dominico then rose and gave her two Blows and when she was gone he said He would strangle her if she would not have him This is the substance of all the Evidence which certainly can make no concludent Proof either of the