the Index of a Manuscript of Collections by Sir Julius Caesar Fol. 277. is referr'd to under his own hand in which Fol. is contain'd as followeth The Book is markt on the outside A. A. 10. UPon the Treaty with Gray Lord Chandois it was thought meet that 16500 l. should be alloted to the Lady for her right to the value of 14500 l. in Land and 2000 l. in Money But in regard the whole Estate moved from the Lady and that Sir John was able to give her no Advancement or Dower out of his Estate it was thought meet that the Lady should have 8000 l. at her sole dispose and the residue to be at their joint dispose After upon motion on the Lady's behalf out of a fear that the Estate might be wasted by Sir John and thereby she deprived of maintenance she then having on knowledge of the Marriage in Scotland or hope of a Divorce or Nullity of the said Marriage it was appointed that the same should be conveyed over to certain Feoffees in trust to her use that she by her Indenture under her Hand and Seal solely and without Sir John might dispose thereof The which conveyance was directed by three living of this Honourable board viz. The Lord Treasurer the Lord Privy Seal and the Lord Stanhope and by the Lord Popham Lord Tanfield Sir Thomas Hesketh Serjeant Dodridge and Mr. Stephens The Land allotted the Lady being sold for 7800 l with 6500 l. thereof Barn-Elmes was purchased but Sir John being trusted by the Lady to go to Mr. Stephens to draw the conveyance went to other Councel and in the clause where it should be freely at the Lady's disposal solely without Sir John he caused to be inserted these Words That the Lady should have power to convey the same to such intents and purposes as by the said Elizabeth solely and without the said Sir John Kennedy by writing under her Hand and Seal enrolled should be limitted and appointed Wherein besides the contradictariness of the Sence he caused in that Deed delivered the Lady the more to blind her Eyes enrolled to be razed and made indented Deed. 31. Decemb. 3. Jac. And after the Rasure was found out then by his Deed Dat. 2. Julij 4. Jac. he the said Sir John did limit power to the Lady by her Deed inrolled or not inrolled to limit uses The Lady hath been a Suiter two years if Sir John for saving his own Credit will not confess matter to make a Divorce then that in course of Justice she may be admitted to her proof which for that it concerneth matter of State as is suggested she is denyed 1. And therefore she hopeth it is but the same equity to stay his proceeding touching her Estate against her or her Feoffees in Course of Justice considering it is not by her lachess that the Marriage is not disproved untill both the said causes having a dependency one upon another may be handled at this Board 2. The course of Conveyance by Feoffees was by Honourable Personages Grave Judges and Learned Lawyers directed when the Lady was supposed the true Wife of Sir John and they held in Law and Equity sufficient and now à fortiore it should be more sufficient she being none of his Wife if she may be admitted to proofs 3. Sir John hath already advanced himself by the Sale of the Lady's Estate over and above the purchace of Tonbridge which cost 8500 l. wherein he hath a a joint Estate of Inheritance and all her Debts that he hath paid 7500 l. 4. If the course propounded at this Honourable Board shall not hold then will the Lady never assent to Sell and so shall the Debts of the Lady before Marriage now resting unpaid being 2207 l. and Sir John's own Debts rest unsatisfied to the oppression and clamour of many poor Men and the King still troubled with renewing his Protections 5. If Sir John should proceed in course of Justice and that the conveyance made to Feoffees should not be held sufficient and strong enough to convey the same to the Lady yet Sir John can have but the profits thereof being but 300 l. per annum and not that clear which is not able to pay half the use of the Money 6. Besides before any Sute began the said Mannor of Barn-Elms was for valuable consideration of Money lent Mortgaged and now resteth forfeited for Non-payment of 2000 l. In the Index of Sir Julius Caesar's Manuscript of Collections Fol. 280. is under his own Hand referr'd to in which Folio is contain'd as followeth The Book is markt on the outside A. A. 10. 'T is in the Index writ with his own Hand in relation to Fol. 280. Whether an English Jurisdiction may disanull a Marriage solemniz'd in Scotland A. B. a Scotchman in a Parish Church in Scotland publickly in the presence of the Congregation solemnizeth Marriage with a Scotchwoman About six or seven years after the said Marriage the Scottish Woman pretending that at the time of her Marriage she was but Ten years Old or at the least under Twelve before certain competent Judges in Scotland procureth a sentence of Divorce to be given against the said A. B. whereby the Marriage between A. B. and her was pronounced to be void and of no force and that she was at liberty to Marry again to any other upon this ground That she was under Twelve years of Age at the time of her Marriage and that she never consented thereto after she was Twelve years Old nor had Carnal knowledge of the said A. B. from which Sentence no appeal or provocation was made Afterwards the said A. B. coming into England did solemnize Marriage with an English Woman the Scottish Wife being then living after which marriage the said A. B. and the English Woman for certain years Co-habited together here in England as Man and Wife the said English Woman being ignorant of the premisses done in Scotland During the time of which her Co-habitation with the said A. B. the Scottish Woman dieth After whose death the English Woman being certified that A. B. had another Wife living when he married her so as he could not be her lawful Husband at the time of her Marriage the said A. B. and she dwelling both in England she refraineth from the company of A. B. and complaineth to the Ecclesiastical Judges in England having Jurisdiction in the place where the said A. B. and she dwelleth and craving Justice offereth to prove that the said A. B. and the said Scottish Woman were lawfull Man and Wife and after the said Marriage had Carnal knowledge of each other and that they Co habited together as Man and Wife five or six years after she was Twelve years of Age admitting she had been under that Age at the time of the Marriage and desireth to be admitted judicially according to the ordinary course of Law to alledge and prove her aforesaid Assertions before the said Judge and upon proof thereof to
have Sentence for the Nullity of her own Marriage according to Justice It is objected on the behalf of A. B. That she ought not to be admitted thereto for these causes viz. Because the Marriage with the Scottish Woman was solemnized in Scotland the sentence of Divorce was given in Scotland by the Judges there where the Judges of England have no Jurisdiction nor Superiority over them That there was no appeal or provocation from that Sentence That it was given by the Judges of an high Court in Scotland from whence no Appeal lieth And that if the English Woman's marriage should be pronounced void here in England the justice of the Realm of Scotland may thereby seem to be taxed The Question is Whether the Ecclesiastical Judges or Judge having Jurisdiction in the place in England where the said A. B. and the English Woman dwell be competent Judges and may and ought at the Petition of the English Woman to hear and determine this cause of Nullity of the marriage between her self and A. B. notwithstanding the former Objections We are of Opinion without any doubt That the Ecclesiastical Judge haing Jurisdiction in the place in England where the said A. B. and the said English Woman dwell may and in Justice is bound at the complaint of the said English Woman to hear and determine the said cause concerning the validity of her said Marriage and to pronounce the marriage between her and A. B. to be void if she prove before him the matters by her alledged notwithstanding the aforesaid Objections Neither can the Justice of Scotland be thought to be impeach'd thereby though upon sufficient proof made before the Judge here in England which was not made before the Judges in Scotland he giveth a Sentence which may seem repugnant to the Sentence given in Scotland In a Manuscript Book of several Collections made by Sir Julius Caesar Master of the Rolls and Chancellour of the Exchequer and one of the King 's most Honourable Privy-Council there is referr'd to in the Index of the Contents writ with his own hand viz. That the question between Sir John Kennedy Knight and his Lady touching the lawfullness or unlawfullness of their Marriage may be tryed heard or determin'd in England where both parties are inhabiting And from Fol. 2d of that Book to Fol. 8th the following Leaves are Transcribed the Page before Fol. 8th in Sir Caesar's Book is thus with his own Hand indors'd viz. The Reasons of the Resolution of A. B. 25. Jan. 1610. The said Manuscript Dr. Trumball borrowed of Sir Charles Caesar and it yet remains in the Doctors Hands 'T is markt in the back C. S. 8. Certain Points in Law and Reason whereby it may plainly appear that the question between the Lady Kennedy and Sir John Kennedy concerning the Validity of their Marriage may and ought by ordinary course of Law be heard and determin'd before the Ecclesiastical Judges in England who have jurisdiction in the places where they both dwell Whereupon the Civilians have grounded their Opinions given in this Case to that effect FIrst by Law and Reason there can fall out no Question or Controversie between any Persons inhabiting in any Civil Common-wealth or State but the same must be decided by some competent Judge or Judges who ought to have Authority to hear and determine the same or else there must needs ensue Confusion and Horrour Secondly When any Controversies happen between any Persons proceeding of any contract whatsoever that require a Determination or ending by Judgment wheresoever the Contract was made those Judges are by Law the competent Judges to hear and determine that Controversie who have jurisdiction and power in the place where both the parties or the party defendant dwelleth to hear and determine causes of that Nature Thirdly If there fall out any Controversie between any two Persons the Defendant cannot be compelled to appear to answer the Plaintiff but before the Judge of the place where the Defendant dwelleth and especially if the Plaintiff himself dwelleth under the same Jurisdiction Fourthly In all Causes where there may ensue peril of Soul and continuance in Sin the Judge of the place ought of his Office to enquire thereof and redress the same though no Man complain thereof Whereupon it followeth That the Ecclesiastical Judges here in England who have Authority to hear causes of Matrimony are the competent Judges and have power to hear and determine this matter of the lawfullness or unlawfulness of the Lady's Marriage and the rather for that the Lady's Marriage which is the principal matter in question was made and solemniz'd here in England If it be objected That because that Point whereupon the Validity or Invalidity of the Lady Kennedy's Marriage dependeth viz. the Marriage between Sir John and Isabel Kennedy is already adjudged by a definitive Sentence long since from which there hath been no appeal or provocation and therefore it must Barr the Lady We answer That although in Causes of other Nature where no danger of sin might ensue though the Sentence were against the truth if a Sentence be once lawfully given and not appealed from in due time the matter cannot be called in question again yet where a Sentence is given to dissolve or anull a lawfull Matrimony that Sentence may at any time though never so long after be called in question and reversed whensoever it may be made to appear that the truth is contrary to that Sentence and that may be done even by the party himself who obtain'd that Sentence And therefore not only Sir John Kennedy but Isabel her self might have reversed that Sentence proving the same was given by error much less shall the Lady who was not party to that Sute be thereby debarred from proving the Nullity of her Marriage being a distinct cause from that And the reason of the difference between a Sentence against a Matrimony and a Sentence in another Cause is because in other Causes where no fear is of Sin or peril of Soul to ensue the parties may by their agreement make what end of the Business they list by composition or otherwise And therefore if they do not appeal from the Sentence given against them they are thought by their consent to confirm the same but because a Marriage by God's Law cannot be dissolved by the Agreement or Consent of the Parties no Sentence therein given against a Marriage contrary to the truth by error can by the Parties agreement be confirmed lest if it should be otherwise thereby they might by colour of the erroneous Sentence marry other Persons and live in Adultery Nay more If the Parties themselves thus erroneously divorced contrary to the truth would hold themselves contented with the Sentence if either of them marry any other Person or they both live incontinently with other Persons the Judge of that place where they inhabit may and ought of his own Office to inforce the Parties so by error divorced to live together again
doubt not will be faithful in his Promises this secures me against such Fears and makes me willing to believe that the impious Popish Principles shall never be put in Execution in England Dirum omen qui solus potest averruncet Deus And because in these Times many who would be thought Wits and who by the Vanity and Loosness of their Principles have been tempted to malign the Clergy in general and have made the Priest-craft a Term in vogue it is thought seasonable to stop such Persons in their Career towards Atheism by letting them see from what Forge the virulent Expression of Priest-craft came Nor yet is this late Reverend Bishop's Testimony given in his Letter against the Rebellion of 41 fit to be conceal'd To … c. My Honoured Friend I Received yours and return what is most due for that and many more Civilities my hearty Thanks News here we have none and so I cannot requite your Kindness by sending you what you so kindly send me Intelligence You have seen I believe Machiavel's Works translated out of Italian or Latine in English which came out the last Year 1675. The Printer in the second Page says it was Licensed but tells us not by whom In the end of it there is a Machiavel's so 't is pretended in Vindication of his Writings That Letter indeavours two things 1. To magnify Democracy as the best Government and decry Monarchy 2. To decry the Clergy in general not only those of Rome as a sort of People so far from holy that they have nothing left of Integrity or Humanity He tells us of an execrable innate ill Quality inseparable from the Priest-craft and the Conjuration or Spell of their newnvented Ordination and would have them rooted out so as not one Sibra were left c. When t was printed by whose Authority or Advice I know not a considerable Piece one whole Leaf in Folio was left out which I have in MS. and do here enclosed send you a Copy of it The business of that Piece which is left out is to tell us what is not Rebellion so he pretends and if his Principles be true we have had no Rebellion in England this 40 Years My humble Service to your Neighbour and my honoured Friend I am in extreme haste and Q. Coll. Oxon. May 11 1676. Your affectionate Friend and Servant Tho. Lincolne Omitted out of Machiavel's Letter in Vindication of himself and his Writings between pag. 4 5. NOW having gone thus far in the Description of Rebellion I think my self obliged to tell you what I conceive not to be Rebellion Whosoever then takes up Arms to maintain the Politick Constitution or Government of his Country in the Condition it then is I mean to defend it from being changed or invaded by the Craft or Force of any Man altho it be in the Prince or Chief Magistrate himself Provided that such taking up of Arms be commanded or authorized by those who are by the Orders of that Government legally intrusted with the Custody of the Liberty of the People and Foundation of the Government this I hold to be so far from Rebellion that I believe it laudable nay the Duty of every Member of such Common wealth for he who fights to support and defend the Government he was born and lives under cannot deserve the odious Name of Rebel but he who endeavours to destroy it If this be not granted it will be in vain to frame any mixt Monarchies in the World yet such is at this Day the happy Form under which almost all Europe lives as the People of France Spain Germany Poland Sweedland Denmark c. wherein the Prince hath his Share and the People theirs which last if they had no means of recovering their Rights if taken from them or defending them if invaded would be in the same Estate as if they had no Title to them but lived under the Empire of Turkey or of Muscovy And since they have no other Remedy but by Arms and that it would be of ill consequence to make every private Man judg when the Rights of the People to which they have as lawful a Claim as the Prince to his are invaded which would be apt to produce frequent and sometimes causless Tumults therefore it hath been the great Wisdom of the Founders of such Monarchies to appoint Guardians to their Liberty which if it be not otherwise express'd is and ought to be understood to reside in the Estates of the Country which for that reason as also to exercise their Share in the Soveraignty as making Laws levying Monies are frequently assembled in all these Regions in Europe before mentioned These are to assert and mantain the Orders of the Government and the Laws Establish'd if it cannot be done otherwise to arm the People to defend and repel the Force that is upon them Nay the Government of Arragon goes farther and because in the Intervals of the Estates or Courts many Accidents may intervene to the prejudice of their Rights or Fueros as they call them they have during the Intermission appointed a Magistrate called Justitia who is by the Law and Constitution of that Kingdom to assemble the whole People to his Banner whenever such Rights are incroach'd upon who are not only justified by the Laws for such coming together but are severely punishable in case of Refusal So that there is no question but that if the Kings of Arragon at this day very powerful by the Addition of the Kingdom of Naples and of Sicily and the Union of Castile should in time to come invade their Kingdom of Arragon with the Forces of their new Dominions and endeavour to take from them the Rights and Priviledges they enjoy lawfully by their Constitution there is no question I say but they may tho their King be there in Person against them assemble under their Justitia and defend their Liberties with as much Justice as if they were invaded by the French or by the Turk for it were absurd to think since the People may be legally assembled to apprehend Robbers nay to deliver a Possession forcibly detained against the Sentence of some Inferiour Court that they may and ought not to bestir themselves to keep in Being and preserve that Government which maintains them in possession of their Liberty and Property and defends their Lives too from being Arbitrarily taken away But I know this clear Truth receives Opposition in this unreasonable and corrupt Age when Men are more prone to flatter the Lusts of Princes than formerly and the Favourites are more impatient to hear the Impartiality of Laws than the Sons of Brutus were who complained Leges esse surdas that is though they were fine Gentlemen in favour with the Ladies and Ministers of the King's Pleasure yet they could not Oppress Drink Whore nor Kill the Officers of Justice in the Streets returning from their Night-Revels but the Execution of the Laws would reach them as well as
others who in the time of Tarquin it seems found the Prince more exorable Nay the very Divines themselves help with their Fallacies to oppugn this Doctrine by making us believe as I said before that it is God's Will all Princes should be Absolute and are so far in a Conspiracy against Mankind that they assert that in the Text This shall the Manner of your King be God was giving that People the Jus Divinum of Government when in truth he was threatning them with Plagues of Monarchy But I spare the Divines here since I shall have occasion in discoursing of my next Accusation to shew how that sort of People have dealt with God's Truths and with the Interest of Men. And to be as good as my Word I shall presently fall upon that Point having been so tedious already in the former FINIS ERRATA Mr. Cottington's Case PAge 17. after the last word dele the Period p. 63. for Appella read Apella P. 72. line 2 f. excuse r. execute P. 117. l. 12. f. Tulin r. Turin P. 119. f. Monoch r. Menoch P. 127. l. antepenult f. Roe r. Rote P. 131. l. 6. f. senim r. enim The Case of the Jews In Title-Leaf r. Republica P. 8. in margine r. videsis P. 14. near the end r. vigilant P. 26. l. 2. r. practised P. 43. l. penult r. Practices P. 63. l. 7. r. principal Ibid. f. two r. too P. 70. l. 5. after was add not Vide Hist. H. 4. France by the Bp of Rhodes and Monsieur D'Ossat 's Letters Davila lib. 3. The M. of Hallifax a Privilegia quae contemplatione Religionis indulta sunt catholicae tantum Legis observatoribus prodesse oportet Haereticos autem Schismaticos ab his privilegiis alienos esse volumus Imperat. Constantinus ad Dracilianum l. 1. de Haereticis in Cod. Theodosiano pag. 493 Query Answer a Minutius Felix Octav. pag. 77. * Libertas inastimabilis res est Paul c. 2. ad Edict Leg. 106. Stat. de Reg. Juris And again Infinita aestimatio est libertatis Id. l. 13. ad Plantiam F. de R. Juris l. 176. Sec finali * By Populus I understand the whole Body Politick Head and Members King and People and not the People only in opposition to the King Appellatione populi viri cives significantur connumeratis Patriciis Senatoribus Instit. de Jure Nat. Gentium Civili L. Lex est * Vid. Gratian. Gaen 2 3 4. Causa 16. Quest. 6. Innocent Part. 5. Cap. ultimo c. * Vid. Concil Lateran sub Innocent 3. Can. 3. de Haereticis apud Petr. Crabb Tom. 2. pag 948. Col. 1. Concil Trident. Seyalt 25. de Reformation cap. 19. cap. 20. ubi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sic habet Cogantur omnes Principes Catholici conservare omnia sancita quibus immunias Ecclesiastica declara †Bellarminus de Romano Pontisic lib. 5. cap. 6. c. The supreme Power of this Nation by Act of Parliament command all to come to Common-Prayers and so all did Papists and Protestants till 11º Eliz. The Pope Julius 5. by his Bull forbids it The Papists obey him not the Act of Parliament * Gratia Can. Alius 3. Lucet 6. Can. 16. †Gratian. Can. Nulli 5. Dist. 19. †Gratian Can. in Canonicis 6 Distinct 19. Canon Enim verò 4. Ibidem * Idem ibidem Can. sic omnes 2. Juv. Part. 4. cap. 238. †Vid. Constit. Impp. Honorii Theod. in Append. Cod. Theod. Theod. pag. 31. contra Donatistas c. aliam Constit ibid. pag. 38. ubi â—idem Imperatores in Donatistas Pacis Ecclesiae turbatores sententiâ capitali Vindicant Et Cod. Theodosii L. si quis 31. de Episcopis †Seneca de Beneficiis lib. 3. cap. 6. num 27. pag. 38. in Edit Just. Lipsii H. Grotius de Jure Belli lib. 2. cap. 20. Sect. 50. pag. 345. †Lipsius in locum Senecae praedictum num 27. pag. 47. * Institut de Capitis diminut L. Maxima Query Answer Object * Heâ—â— Altingius Problem Theolog Part 2. Probl. 20. pag 337. Williel Zepperu Legum Mosaicarum Forens Lib 4. cap. 5. p. 258. Answ. †In such cases the Magistrate is and ought to be Nutritius Ecclesiae and Defensor fidei and may use the Sword against those who abuse it against the Church Act. 9. 5. Joh. 18. 36. Act. 5. 3 4 5. Act. 13. 11. Object 2. †Hen. Altingius Problem Theol. Part. 2. Problem 29. Pag. 333. Will. Zepperus in Explication LL. Mosaic Lib. 4. cap. 3. pag. 262. Calvin in Luc. 14. 23. pag. 182. August Epist. 50. ad Bonifacium alibi passim Answer * Vid. Groâ—â—um in Luc. 14. 2 3. de Jure Belli Lib. 2. cap. 20. Sect. 48. pag. 345. to the same purpose Dr. Hammond's Diodati the Assembly-Divines c. on Luc. 14. 23. * Theophyl in Luc. 14. 23. Pag. 438. c. †So Mat. 14. 22. Mark 6. 45. Gal. 11. 14. Vid. Grot. loco supra Citato Vide Theophylactum in loc c Reas. 2. Joh. 6. 6 7 Grotius in Joh. 6. 67. Athanasius Epistolâ ad Solitariam Vitam agentes Chrysost. in Joh. 6. 67. Idem habet Cyprian Epist. 55. a Mat. 13. 28 29. b Vers. 38. c Vers. 39. d Glossa ad Cap. Statuimus 4. Distinct 4. apud Gratianum Theophylact. in Mat. 13. pag. 77. A. B. Reas. 3. b Concil Toletanum 4. cap. 5. c Gratian. cap. de Jud. 5. Dist. 45. * Glossa ad dictum cap. 5. de Jud. Dist. 45. Reas. 4. Grotius de Jure Belli l. 2. cap. 20. Sect. 9. Salmanus de Arianis Haeretici sunt sed non scientes apud nos sunt haeretici apud se non sunt veritas apud nos est sed illi apud so esse Praesumunt Errant ergo sed bono animo errant non odio sed affectu Dei honorare se dominum credentes Et qualiter pro hoc ipso falsae opinionis errore in die judicii puniendi sunt â—cmo potest scire nisi judex c. * Seneca de Beneficiis 1. 3. cap. 7. Augustinus * Grotius de Jure Belli lib. 2. cap. 20. Sect. 50. Reas. 5. * See many Reasons for this in the Lord Faulkland's Reply pag. 224 225 c. †Vid. August de Haeresibus in Praefat. pag. 32. Edit in 80. * Aquin. 2. 2. Quest. 11. Art 2. Commentat ejus ibidem Filiucius Tractat 22. cap. 6. Sect. 152. San. lib. 2. cap. 7. Azorius lib. 8. cap. 9 c. * Augustin de Civitat Dei lib. 8. cap. 51. de Origine Animae cap. 15. †L. Nullus 2. Cod. Just. de Summa Trinitat vid. Grotium in Tit. 3. 10. a Vid. Theophyl Oecumenium in Tit. 3. 10 * Aquin. 2. 2 Quest. 11. Art 2. in Conclus Ita Filiucius Azorius Navarzus alii c. See the Lord Viscount Faulkland's Reply in defence of his Tract of Infallibility pag. 217 218 219 c.