where so much as in us lies to â—oot out and extirpate and Hereticks so convict to punish with Condigâ— Punishment holding that such an Hâ—retick in the aforesaid Form Conviâ—â— and Condemned according to thâ— Laws and Customs of this our Kingdom of England in this part accustomed ought to be Burned with Fireâ— We command thee that thou cause the said Edward Wightman being iâ— thy Custody to be committed to the Fire in some publick and open Placeâ— below the City aforesaid for the Cause aforesaid before the People and the same Edward Wightman in the same Fire cause really to be Burned in the Detestation of the said Crime and for manifest Example of other Christians that they may not fall into the same Crime And this no ways omit under the Peril that shall follow thereon Witness c. Anno Dom. 1616. An. Reg. Jac. 14. â— Order of the King 's Privy Council sent to the Peers of the Realm for the Tryal of the Earl and Countess of Somerset Whitehall Apr. 24. 1616. AFter our very hearty Commendations to your Lordship â—hereas the King 's Majesty hath reâ—ved that the Earl of Somerset and â—e Countess his Wife lately indicted â—f Felony for the Murder and Poyâ—ning of Sir Thomas Overbury then â—s Majesties Prisoner in the Tower â—all now receive their Lawful and â—ublick Tryal by their Peers immeâ—ately after the end of this present â—aster Term. At the Tryal of which â—oble Personages your Lordship's â—resence as being a Peer of the Realm â—nd one of approved Wisdom and Inâ—grity is requisite to pass upon them â—hese are to let your Lordship understand that his Majesties Pleasure â—â— and so commandeth by these our Leâ—ters that your Lordship make youâ— repair to the City of London by thâ— Eleventh day of the Month of Mâ—â— following being some days before thâ— Tryal intended at which time youâ— Lordship shall understand more of hiâ— Majesties Pleasure So not doubtinâ— of your Lordships Care to observe hâ— Majesties Directions we commit yoâ— to God Your Lordships very loving Friends G. Cant. T. Ellesmere Canc. Fenton E. Wotton Tho. Lake Lo. Dare. C. Edmonds E. Worcester Lenox P. Herbert R. Winwood F. Grevyll J. Caesar â—he Speech of Sir Francis Bacon at the Arraignment of the Earl of Somerset the Countess having received the King's Pardon â—T may please your Grace my Lord High Steward of England and you â—y Lords the Peers You have here â—efore you Robert Earl of Somerset â—â— be Tried for his Life concerning â—e Procuring and Consenting to the â—oysoning of Sir Thomas Overbury â—â—en the King's Prisoner in the Tower â—f London as an Accessary before the â—act I know your Honours cannot beâ—old this Noble Man but you must â—emember the great Favours which â—he King hath conferred on him and â—ust be sensible that he is yet a Memâ—er of your Body and a Peer as you â—re so that you cannot cut him off â—â—om your Body but with grief and â—herefore you will expect from us that give in the King's Evidence sound â—nd sufficient matter of Proof to satisfie your Honours Consciences As for the manner of the Evidence the King our Master who amongst other his Vertues excelleth in that Vertue of the Imperial Throne which is Justice hath given us Command that we should not expatiate nor make Invectives but materially pursue the Evidence as it conduceth to the points in question A matter that though we are glad of so good a Warrant yet we should have done of our selves For far be it from us by any Strains of Wit or Arts to seek to play Prizes or blazon our Names in Blood or to carry the Day other ways than on sure grounds We shall carry the Lanthorn of Justice which is the Evidence before your Eyes upright and so be able to save it from being put out with any grounds of Evasion or vain Defence not doubting at all but that the Evidence it self will carry that Force as it shall need no Advantage or Aggravation First My Lords The Course that will hold in delivery of that which shall say for I love Order is First I will speak something of the Nature and Greatness of the Offence which is now to be Tried not to weigh down my Lord with the greatâ—ess of it but rather contrariwise to â—ew that a great Offence needs a â—ood Proof And that the King howâ—ever he might esteem this Gentleâ—an heretofore as the Signeâ— upon his â—inger to use the Scripture Phrase â—et in such a Case as this he was to â—ut it off Secondly I will use some few words â—ouching the Nature of the Proofs which in such a Case are competent Thirdly I will state the Proofs And Lastly I will produce the â—roofs either out of Examination â—nd matters of Writing or Witnesses â—iva voce For the Offence it self it is of Crimes â—ext unto High Treason the greatest is the foulest of Felonies It hath â—ree Degrees First It is Murder by Impoysonment Secondly It is Muâ—der committed upon the King's Prisoner in the Tower Thirdly I might say it is Murder under the colour â— Friendship but that it is a Circumstance Moral and therefore I leavâ— that to the Evidence it self For Murder my Lords the firâ—â— Record of Justice which was in thâ— World was Judgment upon a 〈◊〉 therer in the Person of Adam's First born Cain and though it was not punished by Death but Banishment and marks of Ignominy in respect of the Primogenitors or the Population oâ— the World yet there was a severâ— Charge given that it should not gâ—â— unpunished So it appeareth likewise in Scripture that the Murder of Abner by Joab though it were by David respited in respect of great Services past or reason of State yet it was not forgotten But of this I will say no more because I will not discourse It was ever admitted and ranked in God's own Tables That Murder is of Offences between man and man next unto High Treason and Disobedience to Authority which sometimes have been referred to the first Table because of the Lieutenancy of God in Princes the greatest For Impoysonment I am sorry it should be heard of in our Kingdom It is not nostri generis nec sanguinis pecâ—atum it is an Italian Comfit fit for the Court of Rome where that person that intoxicateth the Kings of the Earth is many times really intoxicaâ—ed and poysoned himself but it hath three Circumstances which makes it grievous beyond other matters The First is That it takes a man away in full peace in God's and the King's peace that thinks no harm â—ut is comforting of Nature with Reâ—ection and Food so that as the Scripture saith his Table is made a Snare The Second is That it is easily committed and easily conceal'd and on â—he other side hardly prevented and hardly discovered For Murder by violence Princes have Guards and Private Men have Houses Attendants and Arms. Neither can such Murder be committed but Cum sonitu with some
Neither can the Justice of Scotland be thought to be Impeached thereby though upon sufficient proof made before the Judges 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 Anno Dom. 1610. An. Jac. Reg. 8. Certain Points in Law and Reason whereby it may plainly appear that the Question between the Lady Kenneda and Sir John Kenneda concerning the validity of their Marriage may and ought by ordinary Court of Law be heard and determined 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 horror Secondly when any controversies happen between any Persons proceeding of any Contract whatsover and 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 party defendent dwelleth to hear and determine Causes of that Nature Thirdly If there fall out any controversie between any two Persons the Defendent cannot be compelled to appear to answer the Plantiff but before the Judge of the place where the Defendent 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 of 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 udges and have poâ—er to hear and determine this matter of the lawfullness or unlawfullness of the Ladies Marriage and the rather for that the Ladies Marriage which is the Principal matter in Question was made and solemnized here in England If it be objected That because that Point whereupon the validity or invaliâ—ity of the Lady Kenneda's Marriage â—ependeth viz the Marriage between Sir â—ohn and Isabel Kenneda is already adâ—udged by a definitive Sentence long â—ince from which there hath been no Appeal or provocation and therefore it must barr the Lady We answer alâ—hough 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 annul a lawful 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 obtained that sentence and therefore not only Sir John Kenneda 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 suite 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 may by their agreement make what end of the business they list by Composition or other ways and therefore if they do not appeal from the sentence given against them they are thought by the consent to confirm the same but because a Marriage by Gods Law cannot be disolved by the agreement or consent of the Parties no sentence threin 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 erroneouâ—ly 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 errour divorced to live together again as man and wife and seperate 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 lyeth no Appeal and that the Judges of England have no superiority to call their sentences in question and that herefore the Lady cannot call that divorce in question here We answer that the Principal cause in this case of the Ladies 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 Kenneda at the time of her Marriage without any mention to be made by the Lady of any sentence of divorce given in Scotland this Question of 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 that doth principally belong to 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 tho he were never so superior a Judge not to the end to reverse or expresly 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 Ladies 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 wayes impeal the Justice of Scotland for sith Judges in all Courts and causes must Judge according to that which is alleadged and proved before them
what impeachment is it to the Justice of any Judge although his sentence be revoked and and a contrary sentence given by another Judge when the parties between whome the suite is either cannot or through negligence or collusion will not alleadge 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 Countries and yet the former Judge whose sentence is reversed 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 Widdower 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 disirous to be ridd 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 peradventure 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 ridd 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 errour 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 he marrieth another woman being ignorant of the former wife and Collusory Divorce and there Cohabiteth and dwelleth with her This woman shortly after understanding of the premises and that she could not be his lawful wife but lived in Adultery with him desireth before the Judge in Scotland under whose Jurisdiction they both dwell to be devorced from him and to be delivered from her Adulterous living with him and offereth to prove all the Premises most manifestly were it not now a most absurd and abominable thing that this woman should have no remedy any where but be inforced 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 the first wife was dead before his second Marriage and so the sentence was given against the apparent Truth And what impeachment of Justice can this be to the Judge in England before whom it was never proved that the mans first wife was dead to have his sentence reversed upon new proofs made before the Judge in Scotland Now between the Ladies 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 whereof may more easily and readily be proved than in the Ladies Cause it can though with more difficulty the cases are all one If any man shall yet doubt whether this cause can be heard and determined 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 in England for this matter I 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 redâ—ess and to be freed from that sinful 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 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 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 Country 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 process to compel them to come before the Judge if they dwell so far off as that it will be too chargeable to bring thâ—m before the Judge then a Commission shall be granted to some Commnsioners to examine them near the places where they dwell and this if they dwell within the Judges Jurisdiction but if the witness dwell out of the Juâ—ges Jurisdiction in any other place Realm or Country then the Judge of the Cause may direct requisitory to the Judges of the places or Countries where the witness dwells to intreat them to examine the witness remaining there by their Authority and to send them depositions to the Judge of the Cause Also by the Records of other Courts or any other Instruments or Writings which may any way further the Cause these being the ordinary and usual courses used for makeing of Proof in every Cause every day and will not be denyed by any acquainted with the proceedings in any Ecclesiastical or Civil Courts Anno Dom. 1611. An. Reg. Jac. 9. The Commission and Warrant for the Condemnation and burning of Bartholomew Legatt who was burnt in Smith-feild in London 1611. for Heretical Opinions JAmes by the Grace of God King of England Scotland France and â—reland defender c. To our right Trusty and well beloved Councellor Thomas Lord Elsmere our Chancellor of England Greeting Where the Reverend Father in God John Bishop of London haveing judicially proceeded in a Cause of Heresy against Bartholomew Legatt of the City of London in the Diocess of the Bishop of London concerning divers wâ—cked Erours Heresies and Blasphemous Opinions holden affirmed and published by the said Bartholomew Legatt and châ—ifly in these thirteen Blasphemous Posâ—â—ons following viz. That the Creed called the