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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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the Charges of Lying in and all other Expences which mercenary Women put Men to But in answer to the Natural Query which the admirable Female Casuist and Defender of Corrupt Nature supposes to arise from the Circumstances of her Case viz. Q. Whether a Man who is guilty of making his Wife commit Adultery deserves to be plentifully rewarded out of the same Wife 's former Fortune Ans 1. The Lady Maclesfeld was not denied Marriage-Rights while she cohabited with her Husband nor was put away by him and she well knows how tender the Earl was upon a Letter of Assignation which fell into his hands within a very short time after they were Married nor are the other early Occasions which he had to have put her away unknown to her self And whether she had not been guilty of Personal Misbehaviour towards her Husband he might appeal to her Mother were it to be expected that she who would give 1000 l. to blacken him and his Witnesses could imitate the late Marquess of Dorchester in a generous concern for a Son-in-Law injured by a Daughter 2. Unless the Lady had liv'd virtuously ten Years and after so long sober Conversation had been rejected by her Husband and at last prevailed upon to Transgress his putting her away if he had done himself that Right could not be the Cause of her committing the Adultery with which she is charged Besides had not her Casuist very partially considered Bishop Cozens ' s Argument and Sacred Writ he might have found that as one Text supplies what is left out in another an Husband does not commit Adultery or cause the Wife to commit Adultery by the bare putting her away till he has cut off all possibility of Reconciliation by a Second Marriage For as 't is Matth. 19. 9. `` Whosoever shall put away his Wife except `` it be for Fornication and shall marry another commiteth Adultery And he might have learned of the Bishop That 't is not the Dismission that is Adultrous but the marrying of another which shews That she ought by her good Life and respectful Discourses of him to have endeavoured to be freed from the Temptation to Adultery much rather than to accuse him of her Crime 3. If she her self had with Tears of Repentance discovered her Misfortune or after it was discover'd by others had been so far from maintaining her Innocence by Subornations and imputing her own Perjury to his Witnesses that she had thought the complying with his Request of being seen by two of his Relations when she was big with Child a more happy necessity than to poyson her self or Lye-in in Newgate and had she in that Condition applied her self to his Compassion and done what was in her power to repair an Injury of the highest Nature then there might have been greater Colour for her having back her Fortune than now that she has openly defied her Husband and the Justice of the Nation and put him to such excessive Trouble not to mention Charge to free himself from her and the dishonourable Burthen she would lay upon him and his Family 4. The Provision which the Earl offers in his Bill is as much as she had by Law while she would be thought to live with the Reputation of Virtue and as much as the Dean of the Arches judged sufficient Alimony till the time of forfeiting it by the course of the Spiritual Court And as that Grave and Learned Judge thought it unreasonable to advance her Maintenance after Allegation and Proof of Adultery it would be very strange if after the Matter were passed into the most solemn Judgment a Divorce for Adultery which works a forfeiture of Alimony even where the Remedy is short of what God's Law allows if not requires should occasion a larger Provision than she had before 5. If the Earl had put her away 't is manifest it could not be from any temptation of being better'd by her Fortune for she or her Mother has from the first parting received all the Profits of the Estate which came with her nor would have been put to account for the Overplus beyond the separate Maintenance but for the greatest Provocations that could be given As to 1000 l. a Year Rent-charge out of his own Estate which was setled in Jointure that could not be saved by the putting her away nor is it any Ease to the Estate during the Earl's Life or after his Death if he marry another on whom he has power to make the like Settlement And besides the 1000 l. a Year is not taken from her by the Bill but falls by natural consequence upon the dissolution of the Marriage-Contract 6. Even the provision which the Bill makes for her out of the Estate which came from her Father is more than consists with the Reason of the Jewish Law and the Laws of other Nations by which the Adultress ought to be put to death 7. 'T is more than agrees with the Reason and Wisdom of our Law as we have received it from our Ancestors even though the Earl had put her away and that without cause When in truth whatever cause he had for it he did not put her away 'T is to be considered that so much of the Estate as her Father gave instead of Money is setled on her as part of her Jointure and in this the Bill allows her no more than her Life but leaves another Estate as 't was given in worth near 4000 l. to her and her Family after the Earl's death when according to the Equity if not to the Letter of the Statute of Westminster the 2d 13 E. 1. she ought not to have any Allowance whatsoever That Statute declares That if a Wife goes away voluntarily and stays with an Adulterer she shall lose her Dower for ever unless the Husband voluntarily and without Ecclesiastical Coertion be reconciled to her and permit her to cohabit with him This has been held to extend to a subsequent Consent though a Woman was forced away at first But more directly to the Casuist's Question it has been adjudged by the King and his Council in Parliament 30 E. 1. that though a Wife be formally made over by the Husband and resigned to another Man yet she forfeits her Dower Nor is it any Objection that the Statute mentions only Dower because 1. Jointure is but in lieu of Dower and within the same Reason 2. Dower at the Church-door or at least with assent of the Father which as has been held ought to be by Deed is truly a Jointure And yet this would be forfeited in such a Case 3. The forfeiture of Dower is incurred without any manner of Divorce and a Divorce for Adultery takes away Alimony in the Spiritual Court but by an Act of Parliament which dissolves the Bond of Marriage a Jointure supposing it of a different nature from Dower of course falls to the ground It being setled upon the Woman no otherwise than as a Wife which relation ceasing there remains no colour of Law to support it Nor can there be Equity because Equity follows the Law and must be governed by the Reason of the Statute of Westminster the 2d Since however some make Scruples because there has been no Divorce in Doctors Commons and as if there could be no other due conviction of Adultery not here to repeat what has been mentioned in the former Reasons for the Earl's Bill 't is to be observed That the Memorable Judgment in Parliament 30 E. 1. was even contrary to a Sentence in the Ecclesiastical Court where the Woman that eloped with the consent of her Husband had been purged or acquitted from Adultery And the Parties believing it seems that a Jury would not go contrary to Holy Church offered an Issue that they had not lived in Adultery during the Life of the former Husband but were denied the benefit of a Trial because as was then declared in Parliament there 's no need of Trial for Matters which appear manifest to the Court. FINIS 2 3. W. M. n. 17. Note Though she was particularly charged with this above 9 Months since she has not to this day pleaded contrary matter Vid. Some Thoughts concerning Divorce As she declared her choice upon notice that the Earl desired she might be produced Some Thoughts c. No man should be encouraged to put away his Wife by the largeness of that Fortune which she brought Leviticus 20. 10. The man that committeth adultery with another man's wife the adulterer and adultress shall surely be put to death 2d Inst f. Placita Parl. f. 231 232 233.
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