failings as our Blessed Saviour only excepted the best men in the world ever bad then all the members of that Body as by the indispensable Law of Allegiance they are bound ought to conceal the frailties of their Prince and not to censure or publish them to his dishonour either by word or writing 2. But notwithstanding this it is too certain that in this Nation in the late unhappy times of confusion and most horrid Rebellion we have had a multitude and rable of seditious people who miscall'd themselves the Goldy party who have been so far from duly honouring their Gracious Soveraign maintaining the known Rights of his Crown and preserving his Sacred person from danger that they have without all ground falsly slandered and in the Press and Pulpit by Lyes and Libels indeavour'd to ruin his honour and reputation Nor stay'd they here but having got power to compleat the Tragedy they did what before they desired seise the Kings Revenue and all the Rights of the Crown into their own bands and at last with a prodigious and more than Pagan impiety horresco referens they murdered their innocent and pious Prince An act so villanous and so far beyond all expression barbarous that since our Blessed Saviours death no Age or Nation ever had or I hope ever will have any Villany equal to it and all circumstances considered of parallel impiety And since his Majesties happy and Miraculous Restauration to his Fathers Throne in peace it is too evident by the impious Plots and Conspiracies happily discovered and their disloyal and Trayterous designs disappointed some still remain who if they had What I hope they never will ability want not a mind to do mischief who have talk'd so long of that liberty and property of the subject that to maintain the just Rights and Prerogative of their Prince which in the first place ought to have been consider'd and preserved is no part of their care and desire but rather the diminution of it and had they ability and opportunity the utter abrogation of it The Premisses consider'd I think that every loyal subject as he is by natural or sworn Allegiance or both at all times so especially in the circumstances we now are is obliged with more care and diligence to maintain and vindicate his Soveraigns just Rights and Prerogatives For where and when there is greater and more eminent danger there ought to be greater care and diligence to prevent it These Considerations and some addresses of some honest Cavaliers who believed that the King had power by his Prerogative Royal to pardon in the Cafe proposed but could more easily believe the truth than answer Objections against it and therefore desired my assistance to help them to answer the principal and indeed the only pretended Objection which seem'd and only seem'd to prove that his Sacred Majesty could not pardon a person legally condemn'd for Murder I say that these reasons induced me more seriously to consider the Case proposed and after diligent consideration of all the particulars being in my own judgment convinc'd and having satisfi'd my doubting friends That his Majesty might lawfully pardon such a condemn'd Malefactor I shall now in short give you an account of those Reasons which satisfy'd me and them and refer them to your better Judgment And here that I may set down what I have to say with more method and perspicuity I shall 1. Suppose two or three things which to me seem evident Truths and will conduce to manifest his Majesties power to pardon and then I shall proceed I suppose then 1. That the Kingdom of England is a Monarchy That is as the word signifies a Government wherein the Supreme power is in one single person This our Statutes say and in our Oath of Supremacy we swear That the King is the ONLY SUPREME Governour of this Realm 1. Supreme and therefore none above him 2. ONLY Supreme and therefore none coordinate with him or equal to him 2. That England is an Hereditary Monarchy We say the King never dies The man who was King may die and cease to be but the King and Royal Power ceases not but immediately descends to and is seated in his next Heir and Successor In the next minute after any King's death the next Heir to the Crown is actually King as well and as much before as after his Coronation As in Matrimony it is not the Solemnization of it in the Church nor the Prayers and Benediction of the Priest that makes Husband and Wife For it is by Law and Reason certain that consensus facit Matrimonium Solemnization of it in the Church is only a publick Declaration of the antecedent consent which made the parties man and wife coram Deo before they came to the Church So is Coronation to a King it does not constitute and make him so but presuppose and declare publickly that this person is indeed our Prince Neither has the Pope or people any thing to do by way of Election or approbation of a Successor to the Crown And so in our Oath of Allegiance we swear fidelity to the King His HEIRS and SUCCESSORS The same Oath of Allegiance we took to Charles the Martyr in the next minute after his death as equally and indispensably bound us to be loyal and faithful to his Son and Heir Charles the Second our now Gracious King 3. The Kingdom of England is not only a Monarchy but an ABSOLUTE Monarchy So my Lord Cook tells us in these signal words Thus it hath appeared as well by the ancient COMMON LAWS as by the Judgment and RESOLUTION of the JUDGES of the Laws of England in All AGES and by the Authority of MANY ACTS of Parliament that the Kingdom of England is an ABSOLUTE Monarchy and that the King is the Supreme Governour c. And Sir John Davis that I may not trouble you with any more Quotations says the very same thing The King of England are ABSOLUTE EMPERORS in their Dominions c. And again The King of England has the same ABSOLUTE Liberties in his Dominions as the Emperor in his Empire The meaning is not that our Kings are so absolute as to be freed from obedience of the Laws of God natural or positive in the Gospel but because there is no power on earth except their own which can lay any obligation or limitation upon them And this is evident because our Kings being supreme having none superior or equal to them it is impossible that any power on earth for it is most certain that no inferior power can do it should be able to oblige or limit them But it may be said If our Kings be absolute so as no power on earth can oblige or limit them then they may by themselves make and abrogate Laws lay Taxes on the people c. This does not follow for although no power on earth is superior to them or can oblige or limit them yet they
have Sentence for the Nullity of her own Marriage according to Justice It is objected on the behalf of A. B. That she ought not to be admitted thereto for these causes viz. Because the Marriage with the Scottish Woman was solemnized in Scotland the sentence of Divorce was given in Scotland by the Judges there where the Judges of England have no Jurisdiction nor Superiority over them That there was no appeal or provocation from that Sentence That it was given by the Judges of an high Court in Scotland from whence no Appeal lieth And that if the English Woman's marriage should be pronounced void here in England the justice of the Realm of Scotland may thereby seem to be taxed The Question is Whether the Ecclesiastical Judges or Judge having Jurisdiction in the place in England where the said A. B. and the English Woman dwell be competent Judges and may and ought at the Petition of the English Woman to hear and determine this cause of Nullity of the marriage between her self and A. B. notwithstanding the former Objections We are of Opinion without any doubt That the Ecclesiastical Judge haing Jurisdiction in the place in England where the said A. B. and the said English Woman dwell may and in Justice is bound at the complaint of the said English Woman to hear and determine the said cause concerning the validity of her said Marriage and to pronounce the marriage between her and A. B. to be void if she prove before him the matters by her alledged notwithstanding the aforesaid Objections Neither can the Justice of Scotland be thought to be impeach'd thereby though upon sufficient proof made before the Judge here in England which was not made before the Judges in Scotland he giveth a Sentence which may seem repugnant to the Sentence given in Scotland In a Manuscript Book of several Collections made by Sir Julius Caesar Master of the Rolls and Chancellour of the Exchequer and one of the King 's most Honourable Privy-Council there is referr'd to in the Index of the Contents writ with his own hand viz. That the question between Sir John Kennedy Knight and his Lady touching the lawfullness or unlawfullness of their Marriage may be tryed heard or determin'd in England where both parties are inhabiting And from Fol. 2d of that Book to Fol. 8th the following Leaves are Transcribed the Page before Fol. 8th in Sir Caesar's Book is thus with his own Hand indors'd viz. The Reasons of the Resolution of A. B. 25. Jan. 1610. The said Manuscript Dr. Trumball borrowed of Sir Charles Caesar and it yet remains in the Doctors Hands 'T is markt in the back C. S. 8. Certain Points in Law and Reason whereby it may plainly appear that the question between the Lady Kennedy and Sir John Kennedy concerning the Validity of their Marriage may and ought by ordinary course of Law be heard and determin'd before the Ecclesiastical Judges in England who have jurisdiction in the places where they both dwell Whereupon the Civilians have grounded their Opinions given in this Case to that effect FIrst by Law and Reason there can fall out no Question or Controversie between any Persons inhabiting in any Civil Common-wealth or State but the same must be decided by some competent Judge or Judges who ought to have Authority to hear and determine the same or else there must needs ensue Confusion and Horrour Secondly When any Controversies happen between any Persons proceeding of any contract whatsoever that require a Determination or ending by Judgment wheresoever the Contract was made those Judges are by Law the competent Judges to hear and determine that Controversie who have jurisdiction and power in the place where both the parties or the party defendant dwelleth to hear and determine causes of that Nature Thirdly If there fall out any Controversie between any two Persons the Defendant cannot be compelled to appear to answer the Plaintiff but before the Judge of the place where the Defendant dwelleth and especially if the Plaintiff himself dwelleth under the same Jurisdiction Fourthly In all Causes where there may ensue peril of Soul and continuance in Sin the Judge of the place ought of his Office to enquire thereof and redress the same though no Man complain thereof Whereupon it followeth That the Ecclesiastical Judges here in England who have Authority to hear causes of Matrimony are the competent Judges and have power to hear and determine this matter of the lawfullness or unlawfulness of the Lady's Marriage and the rather for that the Lady's Marriage which is the principal matter in question was made and solemniz'd here in England If it be objected That because that Point whereupon the Validity or Invalidity of the Lady Kennedy's Marriage dependeth viz. the Marriage between Sir John and Isabel Kennedy is already adjudged by a definitive Sentence long since from which there hath been no appeal or provocation and therefore it must Barr the Lady We answer That although in Causes of other Nature where no danger of sin might ensue though the Sentence were against the truth if a Sentence be once lawfully given and not appealed from in due time the matter cannot be called in question again yet where a Sentence is given to dissolve or anull a lawfull Matrimony that Sentence may at any time though never so long after be called in question and reversed whensoever it may be made to appear that the truth is contrary to that Sentence and that may be done even by the party himself who obtain'd that Sentence And therefore not only Sir John Kennedy but Isabel her self might have reversed that Sentence proving the same was given by error much less shall the Lady who was not party to that Sute be thereby debarred from proving the Nullity of her Marriage being a distinct cause from that And the reason of the difference between a Sentence against a Matrimony and a Sentence in another Cause is because in other Causes where no fear is of Sin or peril of Soul to ensue the parties may by their agreement make what end of the Business they list by composition or otherwise And therefore if they do not appeal from the Sentence given against them they are thought by their consent to confirm the same but because a Marriage by God's Law cannot be dissolved by the Agreement or Consent of the Parties no Sentence therein given against a Marriage contrary to the truth by error can by the Parties agreement be confirmed lest if it should be otherwise thereby they might by colour of the erroneous Sentence marry other Persons and live in Adultery Nay more If the Parties themselves thus erroneously divorced contrary to the truth would hold themselves contented with the Sentence if either of them marry any other Person or they both live incontinently with other Persons the Judge of that place where they inhabit may and ought of his own Office to inforce the Parties so by error divorced to live together again
declared both by our Church and State For 1. Our Church has declared her Judgment that all Images are not absolutely unlawful or simply forbidden in the New Testament but only some in some Places and Circumstances when they may especially to poor ignorant People be dangerous Occasions of Superstition and Idolatry and more expresly a little after the Words are these We are not so scrupulous as to abhor Flowers wrought in Carpets Hangings Arras c. or Images of Princes on their Coin nor do we condemn the Art of Painting or Image-making c. Whence it is evident that our Church is neither against the Art of Painting nor any Civil Use of Images 2. Our State has by express Act of Parliament declared even in the time of our Reformation That they did not condemn any Civil Use of Images For even in that Statute in which they severely condemn and command the defacing Images in Churches they have this Proviso Provided always That this Act shall not extend to any Images or Pictures set or engraven on any Tomb in any Church Chappel or Church-Yard only for a Monument of any King Prince Noble Man or any other dead Person which hath not commonly been reputed for a Saint but that all such Images may continue Whence it is evident that our Church at the Reformation did not condemn any Civil Use of Images no not in sacred Places as Church-Yards Chappels or Churches much less in other Places And that we may more distinctly know what Images they condemn'd and why they would not tolerate them in Churches It is further to be considered 1. That the Church of England absolutely condemns all Images of the Trinity or any Person in it Father Son or Holy Ghost as absolutely unlawful and expresly condemned in Scripture Such Images are not to be tolerated neither in nor out of Churches 2. No Images of our Blessed Saviour of any Saints and Martyrs which with stupid Superstition and Idolatry have been and still are worshipped in the Popish Church are in the Judgment of our Church to be tolerated in our Temples or any Place of God's publick Worship For if they be it will be to the great and unavoidable danger of Idolatry This I conceive is the approved and received Doctrine of the Church of England and that it may more plainly and distinctly appear to be so I shall cite the Judgment of our Church and her Reasons for it in her own express Words and amongst other things too many to be transcrib'd she plainly tells us 1. That it is an ungodly thing to set up Images or Idols which in her Judgment signify the same thing in our Churches because it may give a great occasion of worshipping them 2. That Images in Churches painted on Clothes or Walls are unlawful and contrary to Christian Religion 3. That setting up Images in Churches is to the great and unavoidable danger of Idolatry and that the Law of God is against it 4. That the setting up the Image of God of our Blessed Saviour or any Saints is not tolerable in Churches but against God's Law 5. Wo be to the setters up and maintainers of Images in Churches 6. It is not possible if Images be in Churches to avoid Idolatry 7. Images of God our Blessed Saviour and the holiest Saints are of all others the most dangerous to be in Churches 8. Images in Churches are a Snare and tempting of God to the great danger and destruction of many 9. That Images in Churches in the Judgment of the Prophet and Apostle are only Teachers of Lies 10. God's horrible Wrath cannot be avoided without utter abolishing Images in Churches This is evidently the express Doctrine of our Homilies which absolutely condemns not only the worshipping but having Images in our Churches And it is no less evident that the Homilies and the Doctrine contained in them are both approved received and established by the Supreme Authority of our Church and State Canons of Convocation and Acts of Parliament This will appear 1. By the Testimony of King James who commends the diligent reading of our Articles and Homilies set forth by the Authority of the Church of England 2. By the Convocation of Q. Elizabeth the Supreme Ecclesiastical Power which expresly and particularly names and approves all our Homilies and declares the Doctrine contained in them to be a godly Doctrine as appears by the Articles of our Church composed and published in that Convocation 3. By the Convocation I Jacobi For as the Article last named declares our Homilies to contain a godly Doctrine so the Convocation of King James declares all things contained in that Article to be agreeable to the Word of God 4. All the Clergy of England all Graduates in the Universities all Chancellors Commissaries and Officials before they exercise any Ecclesiastical Jurisdiction are willingly and ex animo to assent consent approve and subscribe these Articles and this Doctrine and that absolutely without any Glosses or Senses of their own 5. And these Subscriptions are required and so the Doctrine subscribed to confirm'd by several Acts of Parliament 6. And if any impugn this Doctrine so declar'd and establish'd by the Supreme Power or maintain any Doctrine contrary or repugnant to it he is by our Canons to be excommunicated ipso facto and by the Statute if he be a beneficed Clergyman deprived The Premisses being certain and evident Truths the natural and necessary Consequences which follow from them to omit others will be these 1. That neither the Deputy-Chancellor of Lincoln nor any inferiour Court has or can have any just Authority or Power to approve and authorize the setting up of such Images in the Church which by the Supreme Power Ecclesiastical and Civil in Convocation and Parliament is expresly condemn'd as altogether unlawful and to the poor ignorant People pernicious 2. That they who maintain and encourage this Doctrine of setting up Images in our Churches if they persist in it are by our known Laws now in Force to be excommunicated ipso facto and if they be beneficed Clergy-men to be deprived Viderint quorum interest 3. And if any Ecclesiastical Judg or Court quod absit should approve authorize or encourage the setting up of such Images in our Churches it evidently follows from the Premisses that in so doing they approve and authorize that which the Church of England has publickly declared to be dangerous against the Law of God against Christian Religion and to many pernicious And therefore we have reason to believe that no good Son of the Church of England will approve authorize or encourage that which his Holy Mother has so absolutely and publickly condemned A Friend of the late Bishop of Lincoln's observing how customary it is to Protestant Writers to charge on the Papists the Tenet of Dominium fundatur in
Immutable and Indispensable and therefore Marriage in the Law is defin'd to be Maris Faeminae Conjunctio Divini humani Juris communicatio omnis vitae consortium 3. And hence it follows evidently That if the conjugall contract between Patrimoniale and Gallina was Matrimonium legittimum ratum a legall and valid marriage ab Origine and when it was made then it continues so both parties being yet living and was and still is valid and obligatory If it was a just and valid contract in 1664. it must continue and be so now in this year 1677. 4. And further if this be true and granted that Gallina's Marriage with Patrimoniale in 1664. was and to this day continues valid then her Marriage with Mr. Cottington Anno. 1671. is absolutely Null and to all intents and purposes void for first Impossibilium nulla est obligatio or contractus contra naturam bonos more 's initus est omnino nullus If Gallina's pre-contract and marriage to her former Husband was legal and valid when her subsequent Marriage with Mr. Cottington was an evident violation of the Law of Nature which indispensably oblig'd her to be Faithfull to her former Husband and of her Faith before Solemnly given to another and so absolutely Null and in it self Void Secondly It is consonant to Law and right Reason and a received rule in all contracts as well as Matrimonial Quod nemo potest alterâ parte invitâ a contractu semel perfecto recedere And therefore if Gallina's conjugal contract with Patrimoniale was perfect and legally valid she could not without manifest Injustice recede from it leave him and adhere to another Husband In Matrimony as generally in other contracts our consent in making them is and should be free and voluntary but when they are made their Obligation and our Observance of them is necessary So that if this be so if the Matrimonial contract between Patrimoniale and Gallina be legall and really valid then no power on Earth or de Jure can oblige Mr. Cottington to Co-habit with Gallina as with his Lawfull Wife seeing on the foregoing Hypothesis she is indeed Wife to another Man And if any though the Supreme Authority should command Mr. Cottington so to Co-habit with Gallina this were to require him to live in impious and abominable Adultery with another Man's Wife which as no Humane Power can justly command so neither Mr. Cottington nor any other can obey without wounding his Conscience and hazard of his Soul and Salvation T is active Obedience I mean for if such commands should come though we cannot do what 's requir'd yet we may and ought quietly to undergoe the punishment agere pati fortia Christianum est no Courage like that of a good Christian who will suffer any thing patiently from his Governour rather than sin against his God 2. The next Query will be concerning the Invalidity and Nullity of Gallina ' s Marriage with Patrimoniale For if it be indeed Null as it seems some do and would persuade others to believe then the Case is alter'd Mr. Cottington may and ought to Co-habit with Gallina as his lawfull Wife For if her first Marriage were indeed a Nullity then her second with Mr. Cottington will be lawfull and valid and he obliged to Co-habit with her as her undoubted Husband Now in the Case propos'd I find but two Mediums brought to induce a belief that Gallina's Marriage with Patrimoniale was a Nullity 1. The Authority and Judicial Sentence of the Archbishop of Turine declaring it to be a Nullity 2. The reason alledged on which it seems that sentence was grounded drawn from the Force and Fear which made Gallina's consent involuntary Now I conceive with submission to better Judgments that these Mediums are too weak and insufficient to give satisfaction to Mr. Cottington or to quiet his Conscience so as that he may without danger or doubting Co-habit with Gallina For if he should Co-habit with her and only doubt of the Lawfullness of it he certainly sins It is a received and certain rule amongst Casuists That quicquid fit reluctante vel dubitante conscientiâ est peccatum If may Conscience tell me 't is not or doubt whether the thing I do be good and Lawfull what ever it be I sin if I do it And that 's the meaning of that saying of the Apostle many times mistaken whatsoever is not of Faith is Sin That is whoever does any thing without a Moral Certainty that what he does is just and lawfull he sins in doing it Now concerning the former of those two Mediums the Archbishop's judicial Sentence in this Case it is to be consider'd That admit that Archbishop and the Pope too his Superiour and beyound Sea their supreme Judge had both concurr'd in giving the same Sentence and declared the Marriage of Patrimoniale and Gallina a Nullity yet seeing by the known and just Laws of England they have no Authority or Jurisdiction over any here 't is certain they can lay no Obligation on any English Men to approve or submit to such Sentence 2. Nor can such Sentence if the Pope and Archbishop had given it be any reason or just ground to warrant any Judge or Court in England to give the same Sentence in the same or the like Case or be any just bar or reason to hinder them to give the contrary Sentence All know that a Facto ad jus non sequitur Argumentum the Pope this or that Court or Council judg'd so ergo we must or may do so is evidently inconsequent In the Case of Hen. 8. and Queen Katharine the Pope in and with his Consistory judg'd that he had Power to give and actually gave a Dispensation to Marry Relictam Fratris his Brothers Wife and yet afterwards our own at home and abroad the greatest Universities in Christendom judg'd the quite contrary in their Convocations call'd for that purpose Nay our own Supreme Court the Parliament in Hen. 8. time Judg'd that Marriage to be against the Laws of God and in Queen Mary's time the Parliament by Publick Act declared that it was according to the laws of God The Sentences of that Supreme Court are contradictory and ergo one of them be which it may be is evidently Untrue and Erroneous and therefore can neither be a just Warrant for any in England to approve it or judg according to it or a just Bar or Let to hinder us to judge the Contrary Now if notwithstanding the respect and reverence we owe to that Supreme Court we may in this and many the like Cases disapprove its definitive Sentence and be of a contrary Judgment Then much more may we disapprove and be of a Judgment contrary to the definitive Sentence of the Archbishop of Turin who is in nothing our Superiour nor hath any Authority or Jurisdiction in England especially in a matter of Fact wherein neither
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
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