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A92236 Reasons for the Earl of Maclesfeld's bill in Parliament for dissolving the marriage between him and his wife, and illegitimating her spurious issue 1697 (1697) Wing R513A; ESTC R42543 7,994 8

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REASONS FOR THE Earl of Maclesfeld's Bill in Parliament For Dissolving the Marriage between Him and his Wife and Illegitimating her Spurious Issue THE Bill by way of Petition according to the usual Form in like Cases recites the Lady's notorious open Adultery having had Children begotten on her Body in Adultery and using vile Practices to have her spurious Issue imposed and obtruded upon him therefore it enacts and adjudges That the Bond of Marriage being notoriously and scandalously violated by her Adultery be from henceforth dissolved annulled vacated and made void That it be lawful for the Earl to Marry again and that the Wife and Children of any other Marriage shall enjoy all advantages as if he had never been Married to this Lady or that she had no Issue It illegitimates and disinherits the Issue begotten or to be begotten on her Body and enacts that all the Estate of the Earl and of his Father shall be in the same plight and condition and Persons inheritable to it as if she had no Child Preserves the Settlement of the Estate which moved from the Earl's Father in all the Limitations other than to her and her Issue As to the Estate which came from her Father gives her what she has by the Settlement in Bishops-Castle during the Earl's Life or after his Death so that it extend not beyond her own Life As to Sutton preserves all the interest after the Earl's Death without restriction For Bishop's Castle Estate it is to be considered that this which was valued at 10000 l. with 2000 paid was to be as a Marriage Portion and therefore was setled in the Earl's Family with the Remainder to his right Heirs indeed she has her Life in it by way of Joynture but as Joynture comes in lieu of Dower according to the Reason of the Common-Law she ought not to have so much as her Life in it for Dower is forfeited by Adultery and this may be pleaded by the Heir though never proved in any Court during the Father's Life agreeably to which even Doctors-Commons takes away Alimony after Proof of Adultery But surely there can be no colour that her Adultery and the just consequent of that should deprive the Earl's Brother of what he claims in remainder by the Settlement The Earl of Maclesfeld's Bill having been Read in the House of Lords and Leave given for him to make good the Allegations of his Bill she has petitioned to be Heard against their Lordships hearing his Proofs upon the suggestion That the same matters are contained in his Libel in the Ecclesiastical Court and that they are properly determinable there Upon which these Particulars are humbly submitted to the Consideration of their Lordships 1. That an Order was made in a full House for admitting his Lordship to make out his Allegations 2. The Pendency of a Suit in Doctors Commons can be no Argument against Proceedings in Parliament unless they were judicially by way of Original Cause 3. If this came by way of Appeal from Doctors Commons before Sentence then it might be Objected That it is of the Nature of an Original Cause But if either Party were aggrieved by Sentence in Doctors Commons it has been held that no Appeal in Parliament will lye but that the Final Judgment is with Commissioners appointed by the King or Chancellor which makes it evident that if the Parliament cannot relieve by the Legislative Power it 's certain it cannot judicially and therefore according to the inference from its being as Ecclesiastical Cause there can be no Relief 4. The Matter is not wholly of Ecclesiastical Cognizance for only the Parliament can illegitimate the Issue 5. The Earl is in reason to be thought to stand better for relief in Parliament than if he had never proceeded in Doctors Commons having gone through all the tedious Methods of that Court for proving his Lady's Adultery where Publication has passed and as many of his Witnesses have been cross-examin'd as she has thought fit 6. Nothing could have hindred a Sentence but such gross delays as argue her Guilt nor ought her own Fault to serve her for an Exception 7. A Sentence in Doctors Commons cannot add to the clearness of the Proofs or credibility of the Witnesses which she has declined examining to 8. She has declared That she would use delays on purpose to keep him from remedy in Parliament and her Agents have declared They would keep the Cause Three years in Doctors Commons 9. If either Party should dye before this Cause were determined no Sentence could be obtained in Doctors Commons and it is to be considered whether it would not be much more difficult to have relief in Parliament against her spurious Issue if she were not alive to make her defence 10. The Earl has Proof to produce before the Lords which was not within his Allegations at Doctors Commons and that of such a nature as may shew that speedy Relief in Parliament is necessary for his safety and the preservation of his Family 11. She has manifestly waved those opportunities for clearing her self which are the only ground why in the case of Adultery after a Separation from Bed and Board chosen by either side the Innocent Party should proceed in the Spiritual Court 12. She has had several long days given her to plead any matter to clear her self and is at last justly denied to have any farther day from which 't is probable she will Appeal to spin out the time and however may according to the methods of Doctors Commons keep the Cause there several years upon those frivolous Allegations which she has put in 13. The Popish Canons still prevailing in that Court nothing but the Legislative Power can give the Remedy allowed by the Divine Law which permits Second Marriages whereas the Popish Canons allow of no farther Separation than has been between these Parties for several years 14. If want of Sentence in the Spiritual Court has been Objected in any other Case the Fact has not been proved in that Court and Publication of the Proofs passed Besides there has been no proof of Children offered in Parliament and either the proof of the Fact has been doubtful or there has been Cohabitation or Reconciliation after the Innocent Party has had notice of the Fact 15. A Sentence in Doctors Commons is not final or certain but subject to an Appeal before the Delegates and in the Case of the Earl of Banbury the Delegates set aside a Marriage which the Court of the Arches held good 16. The Legislative Power is not in its own nature confineable to any Ecclesiastical Rules or Laws and has set several good Presidents of breaking through them The Deprivation of Bishops is of Ecclesiastical Cognizance their Institution held as Sacred as Matrimony and yet in Popish times Bishops have been Deprived by Act of Parliament without Sentence in any Ecclesiastical Court and for matters for which they were not depriveable by any Ecclesiastical Law And
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.