Hauseur Eleanor Vaness Exam. 22. Feb. 1699. Sir John's Valet de Chambre used to be assisting to him as the Dutchess's Woman Susannah Barrington was to her at going to Bed and rising She proves the like Conversation at Fox-hall and the Dutchess's House at the Millbank till the Duke's first Bill for a Divorce was depending within which time Nicholas Hauseur by Sir John's Order carryed her away and Susannah Barrington with intention of going for Holland to prevent their being Examined to what they knew but the wind proving contrary they could nâ—t go till the Bill was rejected and then Sir John fetch'd back Susannah who was most useful to the Dutchess but Hauseur went for Holland with Ellen. He confirms Ellen's Evidence in every particular and besides the Persons mention'd by Ellen as privy to Sir John's lying with the Dutchess names Sir John's Brother Daniel Nicholas having been found very trusty his Master sent for him to return to his Service Nicholas Hauseur and gave him the opportunity of proving the Continuance of the same Adulterous Conversation at several Times and Places from the Summer 1692. to the 26th of April 1696 He swears he had after his return to Sir John's Service seen them in Bed together at Sir John's House at the Cockpit and at the Dutchess's Houses at Milâ—bank and where she now lives and used to be let into the Dutchess's Apartment by Susannah Barrington or Keemer Nor can any Man who shall read the ample Testimonials given Mr. Hauseur by Sir John by the last of which it appears that he served him faithfully as his Steward reasonable question Hauseur's Credit Another who had been advanced by Sir John from his Footman to Mr. Hauseur's place William Baylâ— and from thence to a good Office in the Excise very unwillingly confirmed the Testimony of Hauser and the Dutch Maid not only as to the time of their going from the Service of Sir John and the Dutchess but though being no Foreigner he could not so easily be sent away to prevent discovery and therefore was not let so far into the secret as Hauseur and the Dutch Maid yet he swears the Dutchess used to come mask'd to his Master's House that he has gone with him as far as the Horse-ferry towards her House at the Mill-bank that then his Master sometimes â—tay out all Night and the next morning he has carriâ—d Linnen and Cloaths for his Master to Keemer's House or Keemer has fetch'd them from him And this he proves to have been since the rejecting the former Bill and about Five Years since when he was succeeded by Hauseur as before he had succeeded Hauseur Two other Foreigners La Fountain who had lived with Sir John and was Served with Summons at the Dutchess's House at Draâ—ton and Hugonee who ran away from the Lord Haversham's since Summons was taken out against him seem to have had the same Trust that Hauseur had for both declared That nothing should oblige them to betray their Master's Secrets One said No Court could dispense with his Oath of Secrecy and â—oth declared they would immediately go beyond Sea Summons have been taken out for Mr. Brian and his VVife and Sir John German's Brother who are or lately were in Town to confess or deny what Nichola and Ellen appeal to them for and it cannot be imagined that Sir John should chuse theHonour of being thought to have to do with a Dutchess before the Clearing her and himself from the Imputation by bringing his Relations to disprove the Charge if what is sworn to be within their knowledge is false And if Sir John's Vanity should prevail with him at least it is to be presumed that his Relations would be more just to him and the Lady than to suffer any thing to pass against them which they could with Truth and Justice prevent But since none of them appear the World will believe their absenting more than a thousand Witnesses in confirmation of what Mr. Hauseur Ellen and Bayly have sworn Whose Evidence not only stands untouch'd by any thing offered by the Dutchess's Witnesses but is plainly confirmed by them in the principal parts This being the nature of the proofs 't is observable 1. That there never yet was any Case of this kind where the Evidence was not liable to greater Objections than can be made to this Though in the latest Case of this kind there was full Conviction of the Ladies having Children while she lived separate from her Husband and the presumption was very violent whose the Children were yet this was but presumption and that was weakned by the presumption in Law that they were the Husbands especially since there was no direct proof of the Lover's ever lying with her 2. Tho in that case by reason of the interval of Parliament and fear of the deaths of Witnesses a Suit was begun in Doctors Commons 't was taken from thence while the Suit was depending therefore that was rather an Objection against procceding in Parliament than an Argument for it 3 In that Case several Witnesses were examined at the Bars of both Houses who had not been examined at Doctors Commons nor any notice given of their Names before their Examination 4. It appears by that Case and the present that the Examinations in Parliament are more solemn and certain than those of the Spiritual Court which depend too much upon the Honesty of the Register or his Deputy 5. Before that Case Parliaments have either broken through the Rules which bind the Spiritual Court as in the Case of the Duke of Norfolk 1 Eliz n. 31. 1 Eliz. where the Parliament ratified a Marriage as lawful according to God's Law tho protracted and letted by reason of certain Decrees and Canons of the Popes Law or else have dissolved a Marriage where there had been no application to Doctors Commons as in the Case of Mrs. Wharton 2. 3. W. M. who has been married to Mr. Cambel and yet there had been no Examination of Witnesses but what had been before the two Houses So long before in the Case of Sir Ralph Sadler upon proof before the two Houses that the Lady Sadlers former Husband had deserted her and disappeared for Four Years before she Marryed Sir Ralph 37. H 8 the Parliament Legitimated her Children by Sir Ralph WHereas some Object against the Passing the Bill as if it would countenance a Jurisdiction in the House of Lords to examine to such matters in the first Instance or Originally the Objection would be the same if it had begun as it might in the House of Commons but in truth would be of equal force against most private and several publick Acts occasioned by the examination of Witnesses or Notoriety of Fact Since therefore the Duke has so long and so often in vain endeavoured to be freed from a Lady publickly famed and proved to have lived with Sir John Germain as his Wife the Duke 's former disappointments cannot but be powerful Arguments for his speedy obtaining that Justice which the Spiritual Court cannot give him their Power reaching no further than to that liberty of living as she list some years since setled by Articles But as none of less Art and Oratory than her Counsel could have turned this into a License to commit Adultery if she List or a Pardon afterwards had there not been evidence of her Acting according to such Construction the Duke would have hoped she had repented of the former Injuries he had received from her but now hopes she shall not longer continue to bear the Name of his Wife and put him in danger of being succeeded by Sir John Germain's Issue or deprive him of the expectation of leaving his Honours Offices and Estate to a Protestant Heir BY Vertue of an Order Obtain'd from His Grace the Duke of Norfolk Earle Marshal of England Jeremiah Wilkins is hereby Authoriz'd to Print and Publish His Case and that no other do presume to Print or Publish the same By His Grace the Duke of Norfolk 's Special Command London Printed by Jer. Wilkins near Fleet-street 1700.
Board beause the same Bed and the same Table were promised in the Marriage Contract but the Promise does not extend even to Tolerating Adultery or Malicious Disertion which according to God's Ordinance Dissolves the Marriage Our Saviour speaks of Divorces Instituted by the Mosaical Law but they were no other than Divorces from the Bond. The Form of the Bill of Divorce among the Jews was this Be Expelled from me and free for any Body else To give the Bill of Divorce is from the Hebrew Root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is to break or cut off the Marriage With this agree the Ancient Canons Councils and Fathers of the Church Concil Nâ—â—caesar Elib forbid the retaining an Adulterous Wife Concil Eliber Aurelian Arelatens give Liberty in such Case to Marry again Clement's Constitution Tertullian St. Basil in his Canons approved by a General Council are for Marrying again Concil Venet. If they Marry in any other Case than Fornication they are to be Excommunicated and not otherwise Concil Wormat. gives Liberty to the Innocent Party to Marry after a Divorce Concil Lateran gives leave for the Innocent Party after a Year to Marry again Concil Lateran If any one take another Wife while a Suit is depending and afterwards there be a Divorce between him and the First he may remain with the Second Lactaâ—tius S. Hierom and Epiphanius are for allowance of Marriage after Divorce Chrysostom Hâ—m 19. 1 Cor. 7. says That the Marriage is dissolved by Adultery and that the Husband after he hath put her away is no longer her Husband Theophylact on the 16th of St. Luke says That St. Luke must be interpreted by S. Matthew S. Hillary is for marrying again as Dr. Fulk saith upon S. Matthew the V. The Eastern Bishops in the Council of Florence are for marrying again Justin Martyr speaks of a Christian Woman's giving a bill of Divorce to a Dissolute Husband without finding any fault with it St. Ambrese says a Man may Marry again if he put away an Adulterous Wife Theodoret said of a Wife who violated the Laws of Marriage Therefore our Lord requires the Bond or Tye of Marriage to be dissolved All the Greek Church to this day allow it Erasmus Cajetan and other Papists The Civil Law and the Laws of the Emperor are clear for it And the Constitutions of our own Church of England in the time of H. 8. E. 6. and Queen Eliz. The Practice of the English Church In the Stat. 1 Jac. c. 11. against second Marriages Divorces are excepted and in Canon 107. 't is provided they shall not Marry again but it is not said such Marriages are void only the Caution is forfeited Neither doth the Canon speak of such Separations wherein the the Bond it self is broken as 't is by Fornication Even the Canon-Law allows Marrying again in case a Woman seek her Husband's Life and in case of a Bond-woman Gratian says in the Case of Adultery Lawful Marriages ought not to be denied In the Case of an Incurable Leprosie it was the Advice of S. Gregory to Austin the Monk That he that could not contain should rather Marry Bellermin owns that the Bond of the Marriage of Infidels is dissolvable but the Marriage of the Faithful and of Infidels is of the sâ—me nature And Justinian a Jesuit confesses that it is simply lawful for the Innocent Party to Marry again And the Roman Doctors allow a dissolution of the Bond of Marriage if the Parties should after consumation transfer themselves into a Friery or Nunnery The Canons which in the case of Adultery prohibit Marrying in the Life time of the guilty Person are contrary to Two Acts of Parliament made 25 H. 8. and 3 4 E. 6. wherein no Canons are allowed that be any way repugnant to the Laws of God Ref. Leg. Eccles Tir. de Adulteriis Divortiis or the Scripture the King's Prerogative Royal and the Statutes of this Land 32 Persons were to review the Canon-Law in which Review drawn up by Archbishop Cranmer the Innocent Person iâ— permitted to Marry again according to Christ's Law and Concession We have Examples of such Marriages in H. 4. of France H. 8. of England Lord Mountjoy Lord Rich Bishop Thornborough and divers others And it is observable That in the Case of the Marquess of Northampton 5 E. 6. who had been divorced for his Lady's Adultery and Married another before any Act of Parliament made concerning it an Act which passed afterwards only two Spiritual and two Temporal Lords dissenting declares he had been at liberty by the Laws of God to Marry and did Lawfully Marry another Where the Act manifestly supposes that whatever had obtained for Law till that time was void as being contrary to God's Law The most considerable Men of the Reform'd Churches both at home and abroad are of this Opinion Grotius quotes Tertullian in whose time it was Lawful for the Innocent Party to Marry Lancelot Inst Jur. Can acknowledges that Divorce is a dissolution of the Marriage Selden who is not likely to contradict the Laws of this Kingdom maintaineth That Marriage after Divorce is to be allowed And in that particular Dr. Hammond doth not contradict him but is clearly for it The Opinion of Amâ—sius deserves to be set down at large Marriage says he cannot be dissolved by Men at their pleasure and for that reason as it is considered simply and absolutely it is rightly said to be indissolvable because Marriage is not only a Civil but a Divine Conjunction and is also of that nature that it cannot be dissolved without detriment to either Party Yet it is not so indissolvable but it may be dissolved for a Cause which God approves as just for the Indissolvability was not in sâ—â—â—â—ted for a Punishment but for the Comfort of Innocent Persons and it admits an Exception wherein God ceases to conjoyn By Adultery two are made not to remain one Flesh hence it is that a Contagious Disease is not a Cause of dissolving Marriage By Adultery the very Essence of the Contract is directly violated but the Contract ceasing the Bond depending on the Contract necessarily ceases It is against all reason that all Matrimonial Duties should be for ever taken away yet the Bond or Obligation to those Duties should continue The words of our Lord Matth. 5.32 and 19.9 have no distinction or limitation of the putting away but simply and absolutely approve of putting away therefore they approve of a putting away not partial or to a particular purpose from Bed and Board but Total None are against the Râ—fâ—rmed Divines but Dr. Howson Mr. Bunny and Dr. Prideaux Dr. Howson was a professed Adversary to Dr. Raynolds who was a great Maintainer of the Church of England against all the Points of Popery and particularly in this Dr. Taylor Bishop Hell Dr. Fâ—lk are for Second Marriages no Authors against them but the Council of Trent and those of the Church of Rome whose Credit
is only saved by those of our Church who agree with them Upon the difference of Explication between S. Ambrose Origen and S. Austin a new kind of Divorce has been thought of from Bed and Board but this Divorce or Name of a Divorce was unknown to the Jews and Ancient Christians I said so much before at the First and Second reading of this Bill that I was in good hopes to have had no further occasion given me of answering any Objections against it now but seeing divers new Arguments have been studied and framed against it since that time I shall now endeavour to satisfie and clear them all 1. The First Argument against it is That the Separation from Bed and Board doth not dissolve the Bond of Marriage To which I must Reply as I did before That this is a distinction without a difference newly invented by the Canonists and School men and never heard of either in the Old or New Testament nor in the times of the Antient Fathers who accounted the Separation from Bed and Board to be the Dissolution of the Bond it self 2. That first Institution of Marriage that they may be one Flesh is by Adultery dissolved when the Adultress makes herself one Flesh with another Man and thereby dissolves the first Bond of her Marriage 3. The Objection that if the Bond be dissolved and afterwards if the Man or Woman be reconciled they must be Married over again is no necessary Consequence no more than 't is in a Person baptized who may break his Covenant and renounce his Baptism and yet upon true Repentance be received into God's Favour by virtue of the first Covenant without any new Baptism Suppose a Witch who they say makes a Compact with the Devil to renounce her Baptism should afterwards by the Grace of God seriously and truly Repent her self of the Wickedness I do not believe that any body would take upon him to Baptize her again and if a Priest should renounce his Orders and turn Turk and yet afterwards repent him and return into the Church he need not be Re-ordained a second time The Case will be the same in Marriage 4. I said heretofore That the Roman Doctors allowed this Dissolution of the Bond when the Man and Wife even after the Consumation of Marriage would transfer themselves into a Friary or a Nunnery but because it hath been since doubted that no Authority can be shewed for this particular I shall here shew it out of the old Constitutions of the Church of England And in the Case of Religion Prov. Will. Lindewode sive Const ng fol. 94. Ver nul latenus Separentur that is the true understanding that to wit either of them betaking themselves to Religion before Carnal Knowledge the Bond of the Marriage be dissolved but it both enter into Religion and make solemn Profession then such Marriage is dissolved even as to the Bond. 5. It hath also been said that if the Bill pass it will pass against the Church of England which I confess I do not understand For the Church of England is within the Kingdom of England and if the Laws of this Kingdome be for the Bill and have declared it by the Assent of the King Lords and Commons as in the Case of the Marquis of Northampton was heretofore declared in the time of King Edward the 6th That by the Laws of God the Innocent Party was at liberty to Marry again Certainly the Spiritual Lords as well as the Temporal and Commons are bound to admit it and I know not why they should be called the Church of England that joyn with the Council of Trent and plead so much to uphold it rather than others that join with all the Reformed Churches and plead against that Canon of the Church of Rome which hath laid an Anathema upon us if we do not agree with them As to the supposed Inconveniencies that will follow upon Marrying again 1. More Inconveniences will follow if they be forbidden to Marry again 2. The Father would be in an uncertainty of the Children if he should retain the Adulteress 3. There would be danger of Poysoning or killing one another if no Second Marriage were allowed 4. Where the Parties should consent to new Marriages for their own Lusts the Magistrates have Power to over-rule such Practices 5. If they be kept altogether by Divorce from Marrying it would occasion the Innocent Party to Sin THE Duke of Norfolk's Case WITH REASONS for Passing his BILL IF want either of Precedent for a Parliamentary Divorce before going through the tedious and ineffectual Methods of Doctors Commons or of Demonstration of Fact have hitherto deprived the Duke of Norfolk of that Relief against his Wives Adultery which the Divine Law allows The late Statute made in the like Case and the Coming in of Two who while the Duke 's former Bill was depending had been sent away to prevent that Discovery which they now make cannot but be thought to remove all Objections against an Act of Parliament not only for the benefit of the Duke but of the Publick as a means to preserve the Inheritance of so great an Office and Honours to Persons of the true Religion And since Bishop Cozens his Argument in the Lord Ross's Case has made it Evident That those Canons which govern the Spiritual Court in this matter are but the remains of Popery nothing can be now requisite to satifie the most scrupulous of the Reformed Religion but to set the Duke's Proofs of his Lady's Adultery in a true Light The Reputation which the Dutchess had maintained of Wit and Discretion made it difficult for many to believe that she could be surprized in the very Act of Adultery as had been formerly provâ—d And though then it appeared that one Henry Keemer lived with the Dutchess while she went by a feigned Name at an House hired for her at Fox-Hall by Sr John Germain's Brother and that Nicola who then lived with Sir John used to receive Wood sent from the Dutches to Sir John's house by the Cock-pit the withdrawing of Nicola and carrying with him the Dutch Maid equally Entrusted with the secret on Sir Johns side left no Evidence of their Constant Conversation but Keemer since dead and Susannah Barrington who had the like Trust from the Dutchess Keemer though very unwillingly some years since confessed his living with the Dutchess at Fox-hall where he pretended she was obliged to conceal her self for Debt and what share Susannah had in the secret was unknovn till Nicola appeared Nicola coming into England sometime since in Exâ—ectation of a Service express'd his readiness to discover what he knew and to Endeavour to bring with him the Dutch Maid She proves That for two Months the first Summer after the King came for England Sir John German and the Dutchess lived together as Man and Wife and were seen in Bed together by her Mr. Bryan and his VVife Sir John's Sister and that Nicholas