Sir Thomas Overbury came to his End The Statute of the Sovereign Lord Richard the â—econd Late King of England in the Thirteenth Year of his Reign or any other Statute Act Ordinance Proâ—ision Restriction to the contrary â—hereof notwithstanding In Testimoâ—y whereof c. Witness c. Francis Bacon Anno Dom. 1621. An. Reg. Jac. 19. An Order of the Privy Council Whitehall January 18. 1621. Present Lord Keeper Lord Treasurer L. President L. M. Hamilton Earle Marshall L. Vis Falkland Lord Digby Lord Brook Mr. Treasurer Mr. Secret Calvert Mr. Câ—anc Excheq Master of the Rolls Whereas his Majesty is Graciously pleased to enlarge and set at Liberty the Earl of Somerset and his Lady now Prisoners in the Tower of London â— and that nevertheless it is thought fit that both the said Earl and his Lady be consined to some convenient place It is therefore according to his Majesties Gracious Pleasure and Command Ordered That the Earl of Somerset and his Lady do repair either to Grayâ— or Cowsham the Lord Wallingford's Houses in the County of Oxon and remain confin'd to one or either of the said Houses and within three Miles compass of either of the same until further Order be given by his Majesty The Duke of Buckingham ' s Answer to the Spanish Ambassador's Informations c. Anno Dom. 1624. in the 22d of King James From the Original written by Sir Edward Coke's then Attorney General own Hand MY Master 's known Wisdom Justice and constant Favour towards me attended with Confidence in my own Faith and Innocency may make it seem both needless and unfit by any Defence to shew respect to a Libellous Information which reflecteth wholly upon the Author's Dishonour For who will not abhor this deplored Art of Calumniating boldly Because no Aspersion how false soever can be wash'd off so clean but some discolouring will remain Besides tho' Conspiracy be a Work of Darkness hardly to be cleared because in it Suspitions go for Proof yet my Youth and manner of Life and even that Character of Irregular Freedom which the Accusers set upon me will by Caesar's known Judgment acquit me thereof And therefore if my Personal Disgrace or Danger were the Marks they aim at I would stand or fall by his Knowledge of me who hath made me what I am and hath both Right and Power to unmake me at his pleasure But as that Wife King well understood that when his Brother demanded the Shunamite he sought not her but the Kingdom so his Majesties piercing Judgment will discover my Name to be the Mask Himself his Royal Children and his Kingdomes to be the true Subjects of this practicing Complaint And tho' the Particulars thereof are forged partly by Jesuites and their Factions at Home and partly by corrupt Ministers and Emissaries Abroad yet the Workmen that manage them are Publick Ministers of State of whose Offices and Sway amongst us we already feel the smart and have cause to prevent the Danger that may ensue especially considering they are Engines of that affected Monarchy which hath inlarged it self by Negotiations more than by Arms And which by advantage of late Treaties hath not lately invaded the Patrimonies of his Majesties Children but procured such Liberty and Connivance with his own Kingdoms as they supposed would produce a Rebellion not to be appeased without the help of their Arms. And since their Designs by God's Providence are now brought to light what could Malice it self have attemped more pernicious than by such Infectious Breaches fury-like to stir Jealousies betwixt the King his People and most obliged Servants and which is more horrible betwixt the Bark and the Tree Nay betwixt the Tree it self and all the Branches thereof Now in respect of these Consequences altho' my Person be of no Consideration and happily by saying nothing or doing easie Offices might redeem their Displeasure Yet where my Duty is so deeply engaged I in my Heart cannot hold and therefore for their Interests for whom by my humble thankfulness and Faith I account the chief Hopes and Fruits of my Life yet so as the World shall bear me Witness I plead my Cause the demonstration that his Majesty commanded these Informations first to be told and then to be written in the Letters they alledge whereby they excuse themselves of being Informers as of a Practise too base for Persons of their Rank But the Truth redoundeth only to his Majesties Honour For as in their Treaties they ever drew us on by making us rich and happy in general Promises so now by such general contriving of strange Conspiracies and Plots among our selves they endeavour to divert us from any further Discovery or Prevention of theirs And this his Majesty perceiving First pressed them to Particulars finding their Verbal Charges uncertain and subject to Inlargment or Restriction at the Peoples Pleasure he then commanded them to be written so as now they are fixed and no more in their Power but may be examined and judged by all men of Understanding to whose Construction and Censure I willingly submit both them and my Answer For what can be the Danger When in the very Entrance of my Accusation they acknowledge that the matters objected against me are not such as may be cleared by Judicial Proofs And must his Majesty then take them merely upon Trust Indeed Ambassadors have an Honourable Trust for their Masters Affairs and if they obtain a like Trust with those Princes to whom they are imployed what will they not persuade Shall not the Restitution of the Palatinate the Marriage and Dispensation and the Portion be made Articles to be added to our Creed But the Original Sin and Root of all Treasons and Offences laid to my Charge is that by eating the forbidden Fruit in Spain mine Eyes have been opened to discover the Evil as well as the Good and so to trust them no further than they deserve And yet I will not here take them too short for they say they have Witnesses but such as for fear of my Power do withdraw themselves such as dare not speak and deliver their minds though commanded by the King and though thereby they suffer the best King in the World to be brought into Extremities and such as neither will nor dare speak if first they be not freed from Jealousie and Fear yet these they pronounce to be his Majesties Most Faithful Subjects Surely of our Faith they cannot be which holdeth them Traytors Faithless and Perjured that prefer not the Safety and Honour of their Prince and Country before the Fear and Respect of any person whomsoever And if this Fear proveth them to be of their Faith how can they think the Entring into the Ambassador's House to be so heinous a matter as here is pretended Doth not all the World know the Liberty they give and which as Papists have taken beyond Examples in this kind They are not then Mass-Papists but perhaps of Higher Rank having Place and Access
Nicene Creed and Athanasius Creed contain not a profession of the true Christian Faith or that he will not profess his Faith according to the same Creeds that Christ is not God of God begotten not made but begotten and made that there are no Persons in the God-head That Christ was not God from Everlasting but began to be God when he took flesh of the Virgin Mary that the World was not made by Christ that the Apostles teach Christ to be man only that there is no Generation in God but of Creatures that this Assertion God to be made Man is contrary to the Rule of Faith and monstrous Blasphemy That Christ was not before the fullness of time Except by Promise that Christ was not God otherwise than an anoynted God that Christ was not in the form of God Equal with God that is in substance of God but in Righteousness and giveing Salvation that Christ by his Godhead wrought no Miracle that Christ is not to be prayed unto wherein he the said Bartholomew Legatt hath before the said Reverend Father maintained his said most dangerous and Blasphemous Opinions as appeareth by many his Confessions publickly made and acknowledged for which his Damnable and Heretical Opinions he is by Difinitive sentence by the said Reverend Father John Bishop of London with the Advice and Consent of other Reverend Bishops Learned Divines and others Learned in the Laws assisting in Judgment Justly adjudged pronounced and declared to be an obstinate and incorrigible Heretick and is left by them under the sentence of the great Excommunication and therefore as a Corrupt Member to be Cutt off from the Chruch of Chist and society of the Faithful and is to be by our secuâ—ar Power and Authority as an Heretick punished as by the Significavit of the said Reverend Father in God the said Bishop of London bearing date at London the third day of March in the year of our Lord 1611. In the ninth year of our Reign and remaining in our Court of Chancery more at large appeareth And although the said Bartholomew Legatt hath since the said sentence pronouced against him been often very Charitably moved and exhorted as well by the said Bishop as by many grave and Learned Divines to disswade revoke and remove him from the said Blasphemous and Heretical Opinions yet he arrogantly and willfully persisteth and continueth in the same We therefore according to our Regal Function and Office minding the Execution of Justice in this behalf and to give Example to others lest they should attempt the like hereafter Have determined by the Assent of our Councel to will and require and do hereby Authorize and Require you our said Chancellor Immediatly upon the receipt hereof to award and make out under our great Seal of England our Writ of Execution according to the Tenor in these Presents ensuing and these Presents shall be your sufficient Warrant and Discharge for the same The WARRANT THE King to the Sheriffs of London greeting Whereas the Reverend Father in Christ John Bishop of London hath signified unto us that when he in a certain business of Heretical pravity against one Bartholomew Legatt our Subject of the City of London of the said Bishop of Londons Diocese and Jurisdiction rightly and lawfully proceeding by Acts enacted drawn proposed and by the Confessions of the said Bartholomew Legatt before the said Bishop Judicially made and acknowledged hath found in the said Bartholomew Legatt very many wicked Errours false opinions Heresies and cursed Blasphemies and Impious Doctrines expresly contrary and repugnant to the Catholick Faith and Religion and the Holy word of God knowingly and maliciously and with a pertinacious and obdurate plainly Incorrigible mind to believe hold affirme and publish the same Reverend Father the Bishop of London with the advice and consent as well of the Reverend Bishops and other Divines as also of men Learned in the Law in Judgment sitting and assisting thâ— same Bartholomew Legatt by hiâ— Definitive Sentence hath pronounced decreed and declared to be an Obdurate Contumacious and incorrigible Heretick and upon that occasion as a stubborn Heretick and rotten contagious Member to be cut off from the Church of Christ and the Communion of the Faithful whereas the Holy Mother Church hath not further to do and prosecute in this part the same Reveren'd Father hath left the aforesaid Bartholomew Legatt as a Blasphemous Heretick to our secular power to be punished with Condign punishment as by the Letters Patents of the said Reverend Father in Christ the Bishop of London in this behalf above made hath certified unto us in our Chancery We therefore as a Zealot of Justice and a defendor of the Catholick Faith and willing to maintaine and defend the holy Church and Rights and liberties of the same and the Catholick Faith and such Heresies and Errours every where what in us lyeth to Root out and extirpate and to punish with Condign punishment such Hereticks so Convicted and deeming that such an Heretick in form aforesaid Convicted and Condemned according to the Laws and Customs of this our Kingdom of England in this part occasioned ought to be Burned with Fire We do Command you that the said Bartholomew Legatt being in your Custody you do Commit publickly to the Fire before the people in a publick and open place in West-Smithfield for the Cause aforesaid and that you cause the said Bartholomew Legatt to be really burned in the same Fire in detestation of the said Crime for the manifest Example of other Christians lest they slide into the same fault and this that in no wise you omit under the peril that shall follow thereon witness c. Anno Dom. 1611. An. Reg. Jac. 9. The Commission and Warrant for the Condemnation and Execution of Edward Wightman at Lichfield 1611. with an Account of his Heretical Opinion â—Ames by the Grace of God King of England Scotland France and â—eland Defender of the Faith c. To our Right Trusty and Right â—ell-beloved Councellour Thomas â—ord Ellesmere our Chancellour of â—ngland Greeting Whereas the Reâ—erend Father in God Richard Biâ—op of Coventry and Lichfild Having â—diciously proceededf in the Examinaâ—on Hearing and Determining of a Cause of Heresie against Edward Wightâ—an of the Parish of Burton upon â—rent in the Diocese of Coventry and â—ichfield Concerning the wicked Heâ—sies of the Ebionites Corinthians Vaâ—ntinians Arrians Macedonians of â—imon Magus of Manes Manichees of Photinus and Anabaptists and 〈◊〉 other Heretical execrable and unheard of Opinions by the Instinct 〈◊〉 Satan by him excogitated and holden viz. 1. That there is not the Trinity 〈◊〉 Persons the Father the Son and the Holy Ghost in the Unity of the Deity 2. That Jesus Christ is not the true Natural Son of God perfect God and of the same Substance Eternity and Majesty with the Father in respect of his Godhead 3. That Jesus Christ is only Man and a mere Creature and not both God and Man in one Person
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
Advertisement the Lady received from time to time from the Lieutenant or Weston touching Overbury's State of Body and Health were ever sent nigh to the Court though it were in Progress and that from my Lady such a Thirst and Listening he had to hear that he was dispatched Lastly That there was a continual Negotiation to set Overbury's Head on Work that he should make some to clear the Honour of the Lady and that he should be a good Instrument towards her and her Friends all which was but Entertainment For your Lordships shall see divers of my Lord of Northampton's Letters whose Hand was deep in this Business written I must say in dark words and Clauses that there was one thing pretended and another thing intended that there was a real Charge and somewhat not real a main Drift and Dissimulatien Nay further there be some Passages which the Peers in their Wisdoms will discern to point directly at the Poysonment King James his Pardon to Frances Countess of Somerset for Poysoning of Sir Thomas Overbury James Rex THe King to whom c. Greeting Whereas the Fountains â—s well of Mercy as Justice are wont â—nd ought to flow from the King's Throne of which the former of Juâ—tice in the memorable Case of the Death and Murther of Sir Thomas Oâ—erbury in a constant and right Course â—ath flowed and is derived from us â—nd our Royal Court for the full Saâ—isfaction of our selves and Subjects And whereas divers and manifold Causes of our Clemency occur which â—ay move our Regal Mercy towards Fr. Carre late Countess of Somerset â—hiefly that Murther with so many â—nd such examples of Justice before this â—ime expiated especially two whereof the first respecteth her Father and Friends and Family and Noble Progeny the other hath respect to her self because she freely and willinglâ— confessed her Offence submitting anâ— prostrating her self at the Altar of ouâ— Mercy not only during the time â—â— her Imprisonment but also publicklâ— and in her Trial And forasmuch aâ— Lord Ellesmere our Chancellor â—â— England and being our High Steward of England in that behalf and aâ—â— her Peers by whose Judgment shâ— was Convict at the Humble Petitioâ— of the said Frances publickly made solemnly bound themselves by theiâ— promise to intercede for our Royaâ— Mercy towards her and first weighâ—ing with our selves the Nature of he Offence upon which she was Indicted Arraigned Convicted and Condemned viz. that the Process and Judgment were not as of a Principal but as of an Accessary before the Fact and that she seemed to have begun by the Procurement and wicked Instigation of certain base Persons Know ye that We moved with Pity oâ— our special Grace and of our certain Knowledge and our meer Motion Pardoned Remitted and Remised and by these Presents for us our Heirs and Successors do Pardon Remise and Release to the aforesaid Frances Carre late Countess of Somerset or by whatsoever other Name or Sir-name or Addition of Name or of her Sirname of Dignity Place or Places the same Frances may be known esteemed called or named or lately was known esteemed called or Named the Slaughter Killing Poysoning Bewitching Death Felony and Felonious Murthering of the aforesaid Sir Thomas Oâ—erbury or by whatsoever Name Sir-name or Addition of Name or Sir-name of Place or Places the said Sir Thomas Overbury may be known esteemed called or named or lately was known esteemed called or named by the said Frances by her self alone or with any other Person or Persons whatsoever howsoever in what manner soever whensoever or wheresoever done committed or perpetrated all and all manner of Conspiracies Felonies Abettments Procurements Incitations Partnerships Maintainances Helps Hirings Commands Councils Crimes Transgressions Wrongs Offences and Faults whatsoever the aforesaid Death Slaughter Killing Poysoning Bewitching Felony and Felonious Murthering of the aforesaid Sir Thomas Overbury in any wise touching or concerning and the Accessary of them as before the Fact as after the Fact and Flight and Flights made thereupon although the said Frances of the Premisses or any of the Premisses stand or not stand Indicted Impeached Appellat Vocat Rectat Maneat Convicted Condemned Attainted or Adjudged by the Judgment of her Peers before the aforesaid High Steward of England or otherwise howsoever or thence in time to come shall appear to be Indicted Impeached Appellari Rectari Vocari Waviari Convicted Condemned Attainted or Adjudged and all and singular Indictments Judgments Condemnations Executions Pains of Death Pains of Corporal Punishments and all other Pains and Penalties whatsoever of for or concerning the Death Slaughter Killing Poysoning Bewitching Felonies and Felonious Murthering of the aforesaid Sir Thomas Overbury in upon or against the same Frances had made returned or adjudged or which we against the same Frances may have in time to come Imprisonment at our Royal Pleasure or Restraint confining to a certain place only excepted Moreover we do pardon and by these presents for us our Heirs and Successors remit and remise to the aforesaid Frances all and every Outdowries which against the same Frances by reason or occasion of the Premisses or any of them have been proclaimed or hereafter shall be proclaimed and all and all manner of Suits Complaints Impeachments and Demands whatsoever which we against the same Frances for the Premisses or any of the Premisses have had have or in time to come shall have and the suit of our Peace which appertained to us against the same Frances or may appertain by reason of the Premisses or any of them and by these Presents we do give and grant our firm peace to the same Frances willing that the same Frances by the Justices Sheriffs Escheators Bayliffs or any other our Ministers by the occasions aforesaid or any of them be not molested troubled or in any manner vexed so as nevertheless she stand right in our Court if any towards her should speak concerning the Premisses or any of the Premisses although the said Frances do not find good and sufficient Security according to the Form of a certain Act of Parliament of the Sovereign Lord Edward the Third Late King of England our Progenitor held at Westminster in the Tenth Year of his Reign for her Good Behaviour from henceforth towards us our Heirs and Successors and all our People And farther for us our Heirs and Successors of our more ample special Grace and out of our certain Knowledge and our meer motion we will and grant by these presents that these our Letters Patent of Pardon and all and singular the things contained in the same â—hall stand and be good firm valid sufficient and effectual in the Law and from henceforth shal by no means beâ—ome void and that in time to come â—he said Frances by any means shall not be Indicted Arrested Accused â—exed or troubled of for or concernâ—ng the Death Murther Slaughter Poysoning Bewitching Felony or â—elonious Killing of the aforesaid Sir Thomas Overbury howsoever or by whatsoever means the said
Lord Treasurer the Lord Privy-Seal and the Lord Stanhope and by the Lord Popham Lord Tanfeild Sir Thomas Hesktâ— Serjeant Dodridge and Mr. Stephens The land allotted the Lady being sold for 7800 l. with 6500 l. thereof Barne-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 â—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 limited and appointed wherein besides the contradictoriness of the sense he caused in that Deed delivered the Lady the more to blind her Eyes Enrolled to be rased and made Indented Deed. 31. December 3d. Jac. 8. And after the rasure was found out then by his Deed Dat. 2. July 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 â—ut the same Equity to stay his proceedings touching her Estate against her or her Feoffees in Course of Justice considering it is not by her laches that the Marriage is not disproved until 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 fortiorè 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 Ladys Estate over and above the Purchase of Tonbridge which cost 8500 l. wherein he hath a Joynt Estate of Inheritance and all her Debts that he hath Paid 7700 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. and not that clear which is not able to pay half the Use of the Money 6. Besides before any Suite began the said Manner of Barne-Elms was for Valuable Consideration of money lent mortgaged and now resteth forfeited for non-payment of 2000 l. Whether an English Jurisdiction may disannul a Marriage made in Scotland A. B. a Scotch man in a Parish Church in Scotland publickly in the presence of the Congregation Solemnizeth Marriage with a Scotch-woman About six or seven years after the said Marriage the Scotch woman pretending that at the time of her Marriage she was but ten years old or at the most 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 promounced 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 from 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 Cohabited together here in England as Man and Wife the said English woman being Ignorant of the Premises done in Scotland during the time of her cohabitation with the said A. B. the Scottish woman dyeth 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 Eccleastical Judges in England haveing 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 Scotish woman were lawful man and wife and after the said Marriage had Carnal knowledge of each other and that they cohabited 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 her Marriage and desireth to be admitted Judicially according to the ordinary course of Law to alleadge and prove her aforesaid assertions before the said Judges and upon proof thereof to 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 Courtin Scotland from whence no appeal lyeth and that if the English womans Marriage should be proved 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 haveing 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 haveing 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 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