The case of impotency as debated in England: in that remarkable tryal an. 1613. between Robert, Earl of Essex, and the Lady Frances Howard, who, after eight years marriage, commenc'd a suit against him for impotency. ... Written by George Abbot, ... In two volumes. [pt.1]
Abbot, George, 1562-1633.
Page  [unnumbered]

The SPEECH intended to be spoken at Lambeth, Sep∣tember 25, 1613. by the Archbishop of Canterbury, when it came to his Turn, to declare his Mind concerning the Nullity of Marriage be∣tween the Earl of Essex, and the Lady Frances Howard.

[Seven of the Commissioners having before de∣clared themselves that they would Sentence for a Nullity, and great Reason being to think, that the Bishop of London, Sir John Bennet, Dr. James, and Dr. Edwards would give Voices against the Nullity.]

MY Lords, and you the rest of the Commissioners, I have had a great Contenti∣on and Deliberation with∣in my self, in what man∣ner I should utter my Judg∣ment in this present Cause, Page  98 since, after the Speech of those Three who first began, so great a Stream and Con∣currence together of the rest, (my Lord excepted, who spoke last) have given their Opinions for the annulling of the Marriage. But yet I hold not my self concluded thereby, but that I may declare my Judgment, having learned that Suffragia among Wisemen are as well appendenda and ponderanda, as numeranda: And it was no shame for Phocion in Athens, upon good Ground, to contradict the whole City; neither was Paphnusius, in the Coun∣cil of Nice the less respected, when he stood against the whole Synod; nay, it was his Honour, that by delivering of his Sen∣tence, he altered the Resolution which that whole Assembly had intended to take, which I freely acknowledge I have no hope to affect at this Time. And yet, though I have not that hope, but might very well spare this labour, yet my Conscience tell∣eth me, that it becometh me to speak in a Matter of this importance, because, not only, Deum timeo, I fear God, which I doubt not but all of this Company doth; but I am afraid of God, least he should be angry with me if in this Case I be silent. And I think it is expected of me, since I am here present, that I should not sit as an Idol, and only fill a room; for that were to lay an Imputation on my self, that I had undertaken a Cause, which in publick I durst not offer to maintain.

Page  99 I must acknowledge, that in delivering of my Mind in this Business of so great Weight, I do find two defects, that I can∣not so pertinently speak unto the Purpose as divers of the Judges here: The one is, That I am no Lawyer; and the other is, That I am no married Man; by both which I am disabled, that I cannot speak with that Confidence concerning some Particu∣lars, as most of you, the Commissioners, are able to do; but in lieu thereof, I have endeavoured to furnish my self some other way concurrent to this Purpose. As by reading, by conferring with some whom I do trust, with pondering thereupon, so that it hath lost me much sleep at several Times, with frequent Prayer unto God, that he would direct me aright; which I have more begged of God in this Cause, than ever in any that was before me in Judgment. And besides, I bring with me animum candidum, a Mind devoid of Passion, or any Perturba∣tion, which inclineth to no part for fear, or for favour, for spleen or for hatred: From which, I thank God, in pronouncing of Sentence, I ever have been free, re∣membring that Judges are in the Place of God; and as Jehosophat said, 2 Chron. 29. Non hominis judicia exercetis sed Domini, & quicquid judicaveritis in vos redundabit. He then who sitteth in the Place of God, and in pronouncing of Sentence will vary from Page  100 Justice, he leaveth God, and sheweth him∣self worthy to lye in the flames of Hell, for abusing of the Trust which is commit∣ted unto him, which I hope I shall not do. And cui boni? to what end should I trans∣gress in Judgment for either side, when I have no reason to be partial for either, since it is indifferent to me in any particular, whether this Question receive one or other determination.

Where least I should be mistaken, I think it not amiss, as publickly I have done divers Times before, to let the World know what my Judgment is concerning the Impotency of a Husband towards his Wife. That since Marriage in young Couples is for carnal Copulation and Procreation there∣upon, and that it is the intendment of those which contract Matrimony to receive Satisfaction in that Kind, that if this No∣bleman be not able to perform those mari∣tal Rights unto his Lady, he doth unto her a very great Injustice to retain her as his Wife; and we shall perform a great part of Injury and Cruelty towards her, if we do not free her from this Burthen and Yoke. We are bound in Conscience to do it, since it is in truth no Marriage, but a pretended Matrimony, that Consummation being wanting which was one of the first Things in Intention when they two came together: For impossibilitas officii, by a received Maxim, Page  101solvit vinculum Conjugij. But the Point is, that before this Separation be pronounced, it must appear unto the Church, that there is good Cause for the same; which must not be upon light Surmises, or questionable Sug∣gestions, but upon evident Declarations and Proofs, which may give full Contentment to the Conscience of the Judge. The Mar∣riage was overt and in the Face of the Church, whereby they were joyned into one; let the Reason of Separation be as clear as that was, if it possibly may be; or let it be so apparent, that the Church may well know, that there is ground to stand upon for pronouncing of a Nullity. Now this is it which I doubt will not fall out in this Case of my Lord of Essex; there is not proof sufficient to inform the Minds of the Judges that this knot should be dis∣solved, and themselves set at liberty, the one from the other. And then you understand what the general Rule is, Quod dubitas ne feceris. And in this Con∣troversy there seems in my Judgment ma∣ny Reasons of doubting, that the Separati∣on desired ought not to be granted. You shall hear some few of them.

1. The first Scruple which ariseth in my Mind, is from the uncertainty of that Pro∣ceeding, which we have had in this Busi∣siness. For in the handling of it formerly, we had it propounded, that there must be Page  102 a Nullity propter maleficium versus hanc. That was it which we debated, and for the which we turned our Books; that the Counsel for my Lady did still insist upon, not naming the Words indeed, but by a Pe∣riphrasis, or Circumlocution, describing the same. And it cannot be forgotten, how Dr. Stuard, being told by one, or more of the Commissioners sitting then in Court, that his whole Speech did still point out maleficium, he answered, it is true, that is it which we intend. The Authorities al∣ways brought out of the Canonists were in direct Terms upon maleficium, the Proofs intended nothing else. And we all under∣stand, that to have an Impotency unto a Man's own Wife, and an Ability unto o∣ther, and that incurably, and that for some Latent Reason, which cannot be known, is the Case of maleficium; and that is the mat∣ter alledged in the Libel, and whereupon my Lord is examined. And yet, now since we sit upon the second Commission, male∣ficium is disclaimed. One of my Lords* hath avowed it, that he dislikes that maleficium; that he hath read Del-Rio, the Jesuit, writing upon that Argument, and doth hold him an idle and fabulous Fellow; that he rather suppo∣seth it to be God's own handy Work, than any Thing from the Devil. Another of Page  103 my Lords* hath assented thereunto, and maleficium must be gone. Now I for my part will not absolute∣ly deny, that Witches by God's Permission may have a Power over Men, to hurt all, or part in them, as by God they shall be li∣mitted; but how shall it appear that this is such a Thing in the Person of a Man? The Question is, An factum sit, and how it shall be discovered. But to make it a Thing ordinary, as the Romish Writers do beyond the Seas, I take it to be a Fable, acknowledging that for Truth, which a Bi∣shop well versed in that Argument did late∣ly write, that Maleficiation is the very gar∣bage of Popery; a Thing so base, that we who have learned Christ aright, should de∣spise and contemn, allowing it no place a∣mongst us. Which Course it were a shame if we should not observe, since the Papists themselves grow very weary of it; and that even in France, where there hath been more ado with this Maleficiation than in any other Country; for there the common Sort at the Time of their Marriages, were wont to be afraid to have the Words of Con∣junction in Matrimony to be spoken aloud, Quos Deus conjunxit nemo separet, or the Be∣nediction to be publickly given, lest some Witch or Sorcerer in the same Instant should tye a knot upon a Point, or play Page  104 some other sorcering Trick, whereby the new Bridegroom so long as that knot lasted, should be disabled from actual Copulation with her whom he had married. And for avoiding of that hazard, they had there∣fore their Matrimonies celebrated in the Night Time, and in some private Place, where none came but such Friends as they dared to trust. This Superstition grew so common, and Men were so abused by the fright that came thereof, that the Prelates of France, about Thirty Years since, in a Council at Rheimes, made this Decree a∣gainst it. *Peccare graviter admonemus eos, qui noctu vel clanculum benedictionem nuptialem sibi dari procurant propter metum maleficij: Ma∣leficium enim se vitare posse, credere debent, si eo pietatis affectu ad conjugi∣um accedant, qui praescribitur in sacris literis, videlicet ut cum timore Domini, & amore fi∣liorum, magis quam libidine impulsi copulentur, devotè susceptis paenitentiae & Eucharistiae Sa∣cramentis. And the Year after that, ano∣ther Council in that Kingdom doth speak yet more plainly. *Et quia Christiano nomine indignus error nostro seculo inolevit, ut signationibus, consignatio∣nibus, vinculis & nexibus Matrimonia impediantur: Haec Synodus com∣munionePage  105Ecclesiae interdicit omnes eos, qui hu∣jusmodi superstitionibus utuntur: monetque fi∣deles, ne hujusmodi commentis fidem habeant, sed in Deo fiduciam certam constituant, nec id circò matrimonia noctu fiant, sed in luce & frequentia hominum. If it be rotten ripe in France; if it be Error indignus Christiano nomine; if Men must not fidem habere hu∣jusmodi commentis; what do we with it here in England? let it be cast away as a rotten Rag of Popery. And yet I do now find, that in the very Sentence which is this Day to be given, it falleth directly upon the De∣scription of maleficium versus hanc. So that what should I think of this Case of my Lords, which is built on such a Foundation as no Man will stand to? We are on it, and off it, and avow it we dare not, yet fly from it we will not. This moveth Scruple in me, how I should assent to that whereof I can learn no certainty from the Council of my Lady, nor from you that be the Judges, who speak for this Nullity: I dare not rest my Building on such a sandy Foundation.

2. Another Matter which troubleth my Mind, is the Novelty of that which is now set on Foot; a Thing unheard of in our Church, and unknown in our Kingdom. We have many Stories, Old and New, of Things done in this Land; we have Regi∣sters extant in every Diocese; we have Acts and Records which specify those Accidents Page  106 which have fallen out in the Days of our Fore-fathers. I have caused search in ma∣ny Places to be made, and so I know have some of you, the Commissioners; and I have called upon you for the same, but I can have no Precedent of any such Exam∣ple that hath passed in our Kingdom. No Memory of Man can express unto me the Name of that Person, whose Marriage was annull'd for Impotency towards his Wife, when he found an Ability of carnal Copu∣lation with any other Woman. It is this Year, 1613. that hath set Abroad this pre∣sent Imagination, for the former Ages knew it not. It is safe walking in the Ways which are treaded out unto us. We have great Reason for our doings in these Human Actions, when we do those Deeds which formerly were done by our Predecessors. I have had many worthy Men, which have gone before me in the Place which I now hold, Men learned, Men judicious, great discoverers of Impostures; Men that have done great Services for the Nation where we live; but of them never any had such a Case before them, they never gave Sen∣tence for a Nullity of Marriage upon such an inability. I know not whether it be a happiness or unhappiness, that I must be the first to sit in a Commission for determi∣ning such a Controversy.

Page  107 I know to meet with this Objection, it is whispered sometimes, that there is an Ex∣ample, and that is Bury's Case, which is urged as a Precedent unto this now in Que∣stion. But indeed, that is no Pattern of this, the dissimilitude is great between the one Case and the other, for Bury had his Stones stricken off with an Horse, that nothing but a little part of one of them remained. I will read you the very Case, which if any Man doubt of, shall be avowed unto him. Thus then it doth follow.

John Bury, Esquire, was lawfully seised in his Demeanes as of Fee, of, and in di∣vers Mannors, Lands and Tenements, with∣in the County of Devon. The said John Bury, did the 20th Day of November, in the first Year of Queen Mary, marry one Willimot Gifford, and they lived together Three Years; and the said Bury could not carnaliter cognoscere dictam Willimotam.

Afterwards, viz. the 17th of May 1561, the said Willimot called the said Bury before the Ecclesiastical Judge, and charged him to be impotentem ad coeundum cum dicta Wil∣limota, propter vitium perpetuum, & incura∣bile impedimentum ad generationem, & ejus inhabilitatem, &c. and thereupon desired to be divorced, In the Proceeding before the Judge, it was proved by divers Witnes∣ses, of which two were Physicians, that the said Bury had but one little Stone, and Page  108 that no bigger than a Bean. It was also deposed by divers Matrons, that the said Willimot Gifford remained a Virgin, and incorrupt; and the said Bury confessed no less: Upon which Proof, and Confession of John Bury, the Ecclesiastical Judge pro∣nounced Sentence of Divorce, and did thereby separate them.

Afterward the said John Bury took to Wife one Philip Monjoy, his first Wife, Willimot Gifford, being then alive; and the said Philip had a Son in the Time of their continuing together, John Bury's first Wife being alive.

Afterwards, the said Willimot being still living, the said Monjoy, of her own ac∣cord, without any Sentence of Divorce, forsook the said John Bury, and married one Langeden, with whom she continued. The said John Bury, and his first Wife Willimot died, the said Monjoy and Langeden then li∣ving, married together.

The Question is, Whether John Bury, being divorced from Willimot Gifford for Impotency, the second Marriage, solemni∣zed between the said John Bury, and Mon∣joy, during which Time the Issue Male was born, be in Law a Marriage or not.

It appeareth by the Process made in the Cause, and the Words of the Sentence grounded upon the same Process, that the first Marriage was pronounced to be void, Page  109Propter defectum & vitium testiculorum, which made the said John Bury, impoten∣tem & ineptum ad actum generandi, & coitum conjugalem. And so in all Respects, this second Marriage with Monjoy is void, and of no effect: For either this Cause of the Dissolution of the first Matrimony is true, which is always to be presumed, un∣til the contrary do appear, and then the same Cause doth make the second Mar∣riage void also; or else, if it any ways ap∣pear, this Cause of the Dissolution of the first Marriage to be false; Et Ecclesia erat decepta, quia satis potens ad generandum, & quod in ipsa generavit. And in that Case the first Marriage is good, in Law, & debet re∣dire ad priora connubia: And so the second Marriage is utterly void.

We are of the Opinion above laid down.

  • John Loyde,
  • Henry Jones,
  • John Hone,
  • Nicolas Stuard,
  • Edward Crompton,
  • Robert Fourth,
  • William Farrand.

Whether this be true or no, I appeal to Dr. Stuard, who is here in Presence, and of Counsel for my Lady, who, I know, will affirm it, because, not long since, be∣ing asked by me of it, he confessed the same. And here is Dr. Farrand now of Page  110 Counsel for my Lord, who was used—for his Advice in this Case of Bury; and Dr. Hone is yet living, who can testify the same. For I will suppose, that a Man can∣not forget such a famous Case as that was, wherein himself was employ'd; but if all these were dead, I know where Records, be, which still will continue. If this then were the Matter in Question touching Bury, defectus testiculorum, what is this to the great Controversy now depending before us? And if this be the only Precedent, that should be the Inducement, that the Sen∣tence to be given in this Cause is not new, but the like hath been heard of before; I am where I was: We are now to act a No∣velty, a thing strange, and unheard of in this Church of England, whereof let other Men be the Managers, I may have no hand in it.

But perhaps it will be said, that in some other Countries, and especially in France, these things are well known, and the Ex∣amples of one Kingdom, especially being so near unto us, may be an Inducement for us to do the like, since the Reason is the same. My Answer thereunto is, That I that live in England, am to frame my self to those things, which I find in the Church of England, whereof I see no reason, but there should be as great Esteem, as of any Church in the World. In the Days of our Page  111 Fore-fathers, as our Nation was held a ve∣ry noble Nation, so was the Church of England held a very famous Church. Eccle∣sia Anglicana, as might easily be shewed out of Matthew Paris, and by divers things in some later general Councils, did carry a greater Sway. And why should we at this time, in any thing, yield unto any Church in the World, since it is a thing well known, that the Knowledge of Divi∣nity doth abound here, beyond all other Nations? and Men of this Land have beat down the Power of the Pope, and made e∣vident divers Quesions in Matters of The∣ology, beyond all the Parts of Christen∣dom! But beyond this, I do know, that the Customs of Churches, even by the De∣termination of the Pope himself, ought to be the Rule of Judgment in this Nature. We have a famous Place interserted into the Body of the Law, written by Pope A∣lexander the 3d. unto the Bishop of Amiens in France. It is worth your hearing; *Quod sedem Apostolicam consuluisti super his, quae tibi dubia ex∣istunt, gratum gerimus & acceptum, & tua exinde fra∣ternitas non parum commen∣danda videtur. Ex tua siquidem parte nobis est intimatum, quod quaedam mulier, tui Episcopatus cuidamviro nupserit, asserens quod os utrius{que} inguinis rupturam, genitaliaPage  112ejus abscissa fuissent, nec dum ab eo cognito fu∣isset, qui uti{que} factus leprosus, se pariter & sua domui reddidit infirmorum. Mulier vero ad domum patris reversa sicut asseris invenis, alii viro nubere desiderat, & conjugali affectu conjungi. Ʋnde licet Romana Ecclesia non consueverit propter talem infirmitatem, vel propter alia maleficia legitimè conjunctos divi∣dere, si tamen consuetudo generalis Gallicanae Ecclesiae habet, ut hujusmodi matrimonium dissolvatur; nos patienter tolerabimus, si secun∣dum eandem consuetudinem, eidem mulieri cui voluerit nubendi in Domino concesseris faculta∣tem. By this we do find, that the Church of Rome it self doth grant no Separations in Matters of Matrimony, where the Church of France doth; and if the Pope permit in France it self, that a Divorce should be made, it is but a Toleration, and not this neither, but where it is consuetudo generalis Ecclesiae Gallicanae; which if you will apply unto this Cause in Question, you must shew me, that in England it hath been a general Custom, that a Nullity in Marriage may be pronounced propter impotentiam versus hanc; which if you cannot shew, as indeed you cannot, nor give any true Example, that ever hath been of any such Separation within this Church; I may both in Law and Conscience conclude, that I dare not introduce any Novelty, and so consequently pronounce for the Nullity of Page  113 this Marriage. Many things are done in France, whereof if we in England had the Examination, we should peradventure find the Fact different from that which they conceiv'd; or if we agree in the Fact, we should give another Sentence. It is not unknown how, within the Space of one Year, there hath been much a-do in France, about two Women, Magdalen and Louyse, pretended to be possessed with a great ma∣ny Devils, and how Verrine, a principal Spi∣rit in one of them, hath avowed and main∣tained the Mass, Invocation of Saints, Ado∣ration of Images, and a great many other Points of the Grossness of Popery; and a Book hereof hath been printed and reprint∣ed in Paris, with Approbation of the State, and Allowance of learned Men; in which the Church of England would certainly dissent, and proclaim the whole Business to be but an Imposture; as the very like was in the Days of Queen Elizabeth, when the Devils of Denham were said to possess Sarah Williams and her Sister, and some o∣ther Persons; and much a-do was made of it, and divers fond People believing those Knacks, turn'd Papists thereupon; yet the Issue of all was, that it proved no better than a shameful Delusion, and a great abusing of credulous and light-belie∣ving Persons.

Page  114 3. But now to proceed farther; if it shall be said, It is not the Novelty, nor the Want of Custom here in England, which should prejudice the Truth; valeat veritas, wheresoever or whensoever it appears: The Proofs are evident whereupon we do stand, and that will enforce the Sentence. My Answer thereunto is, let that be made manifest, and clear and perspicuous, unto the Conscience of an understanding Man, and I shall concur with you; but how shall I find this in a Matter of this Quality? Because it is nothing else but Truth which we do aim at, it were fit that all Probati∣ons, if not which are possibly, yet at the least which reasonably may be had, should be got together to enforce a Conclusion of this Consequence. My Books tell me, In valore matrimonii investigando quaecun{que} pro∣bationes possibiles adhibendae sunt, & potius de∣bent esse superfluae quàm diminutae. It is Solomon's Saying,*It is the Honour of a King to find out a thing. And wherein can Judges bestow their Time better in a Point of Difficulty, than to search and search again, by all ho∣nest and good Means, to know what is the Bottom of that which lieth secret, that so they may satisfy their own Conscience, and the Conscience of others, in the Sentence which they give, and leave no kind of Scruple, which may trouble their own Page  115 Thoughts? Whether these things have been done in this present Case, I appeal to your own Consciences; whether the Wri∣ters do not mention divers things; whether the Council for my Lord have not spoke of sundry Matters; whether we that be the Judges, have not thought of divers Cour∣ses convenient to be held; of all which, no Piece or Parcel hath been permitted unto us. The Proofs then which we have had, do arise only out of the Depositions, and if there be not Proof sufficient, where shall we seek for it? Let us then consider them. I will tell you my Opinion of them. I find nothing in them all, which is not in Sub∣stance contained in the Answers of my Lord of Essex; a noble Personage saith, that in the hearing of divers things, the Earl hath said, that he was not able to know his Lady carnally; the Earl think∣ing this to be true. But this is but a Rela∣tion of Wonder spoken extrajudicially; and therefore for the understanding of the Truth therein, we are to have Recourse unto that, which by the said Earl is judi∣cially deposed. Divers Witnesses do speak, that the Earl and the Lady have lived and lain together for divers Years, my Lord doth acknowledge it in his Answer; the Matrons and Mid-wives do declare, that in their Judgment, my Lady is a Virgin, and therefore that she was never known Page  116 carnally by the Earl; himself confesseth that he did never know her. So that now, all in Substance depending upon his Lord∣ship's Answer, it ought to be our Labour to scan that exactly, and to judge of it circumspectly. Doth not he then say, in responsione ad quartum; that tho' divers times, in the first Year of their Cohabita∣tion, he did attempt to know her (which divers times may be twice or thrice, and no more) yet in the two latter Years, he did never attempt it? But doth he not say plain∣ly, in responsione ad tertium; that since the time of his Marriage, he had not, nor hath any Sickness or Impediment, to hin∣der him, but that he might have had, and may have carnal Knowledge with a Wo∣man. This is for the General, that he hath no Impediment; but in responsione ad quintuni, doth he not descend more parti∣cularly unto his own Lady; that it is true that he did never carnally know the said Lady Frances? Mark now what followeth; but that to the Act of carnal Copulation, he did not find any Defect in himself. In∣deed he was not able to penetrate into her Body; but he layeth the Faults of that up∣on her, as may be seen in his Answer unto the 7th Article. And it may not be forgot∣ten, that in the End of the Answer to the 4th Article, he saith, that sometimes she refused him; these things are evident, and Page  117 cannot be denied. The only Matter which maketh shew against this, is, that he ac∣knowledgeth that he hath lain by her, and hath had no Motion to have carnal Know∣ledge of her; but especially, that in the End of his Answer unto the 6th Article; and believeth he never shall. These Words are the Shield and Buckler of the contra∣ry part; but how easily do they vanish a∣way, or fall to the Ground! For I appeal unto you all, who were present at the Ex∣aminations (and those were ten of us in Number, who now sit here present) whe∣ther the Earl did not openly subjoin that to his Answer; When I came out of France, I did love her, but I do not so now, nei∣ther ever shall I. I appeal unto the Con∣science of you all, except my Lord of Winton, and my Lord of Rochester, who were not then Commissioners, whether this be so or no; here then is the Matter, it is the Want of Love, which restraineth all Motions of carnal Concupiscence, and not any Impotency; it is defectus voluntatis, and not defectus potestatis. Let Discontentment be removed, and there will be an End of all the Inability: Married Men best know these things; but out of common Reason, there can be no great Longing, where there is no great Liking; many things they say fall out between Man and Wife, that for some good Space of time, Page  118 there is no carnal Conjunction, and yet no Impotency concluded thereby may be. The Case is famous of Pulcheria, Sister unto the Emperor Theodosius the younger, who having vowed Virginity, was notwithstanding af∣terward, for great Reason of State, thought fit to be marry'd unto Martianus, who thereupon was chosen Emperor; she would not condescend thereunto, till she had Pro∣mise from him, that her Virginity should be preserved, and with such a Promise he did marry her, so that they lived toge∣ther in Shew as Man and Wife; but indeed as a Brother and a Sister. Our Stories do make mention, that he who was called Saint Edward in England, I mean King Edward the Confessor, did marry a Lady, the Knowledge of whose Body he never had, neither did this wedded Couple ever en∣deavour to break their Virginity. The Writers do declare no other Reason hereof, but that they had an Opinion, that to live in Virginity, was the more meritorious, ac∣cording to the Superstition of those times. Now were it not a strange Argument, to conclude in this manner, that because Mar∣tianus had not conjugal Copulation with Pulcheria, therefore he was a Man impo∣tent; or, because King Edward had not carnal Knowledge of his Wife, therefore he could not know her. I know the Cir∣cumstances of this present Question do Page  119 differ from those, but the Ground of the Argument is the same. Want of Act up∣on private Reason, will never enforce a Want of Power. And this is our Case, as I understand it, which maketh me unwil∣ling to consent to this Nullity.

4. There followeth now another Argu∣ment, which I shall deliver briefly. We have always agreed, that the Chapter in the Law, which containeth our Case, is the Chapter Litera de frigidis & malefici∣atis; for if it be not there, it is no where to be found. When we have deliver'd ma∣ny things appertaining to this Cause out of the best Writers of the former Ages, or of our own time, as that my Lord should be inspected, or that Physicians should use their Art to discern and remove Impoten∣cy, if any were to be found, or that Fast∣ing, Prayer, and Alms should be exerci∣sed to over-come this Evil, and divers other Points of like Nature; it hath still been answered to us, to say the Interpreters, but it is not in the Law; or it is in the De∣crees which bind not, but it is not in the Decretals; or it is a Council and Exhorta∣tion; but it is no Mandate or Injunction. I now therefore mention some things, which is in the Law, and in the very Body of this Law, and it is the Pope's Mandate; and that is, that my Lord should have given his juramentum cum septima manu, as well as Page  120 my Lady; for Want whereof, the whole Proceeding is annullated. This is the Pope's Commandment, Quocirca manda∣mus, and it requireth the Oath of both, ip∣sis cum septima propinquorum manu firmanti∣bus juramento, se commisceri carnaliter ne∣quivisse, then proferatis divortii sententiam inter eos. This is a thing so clear, that when on Thursday last, by chance, there fell mention of it; the Coun∣cil for my Lady* were so far from giving Answer to it, that to speak plainly, they stood as Men blasted or blighted with a Lightning, and knew not which way to turn them; as was manifest not only unto us, but to all the Standers by; which I do not utter to do them any wrong, for they are worthy Men, both learned and faithful to the Cause which they undertake; but the Note is, that this Objection can receive no true An∣swer. I know, that since that time, there hath been Labour made, to give a Salve to this Sore, but no Man's Wit can do it. I said, and say still, that no Man's Loquence, neither any Man's Eloquence, can perswade me, that ipsis firmantibus juramento is of the singular Number. I know there hath been tumbling and turning of Books, to find some Shew to meet with this Objection, but nothing can be found, which will hold out this Water. The Proceeding there∣fore Page  121 doth appear to be unperfect and de∣fective in that, which is mainly required by the Law, which makes me to conclude in this fashion against some unperfect Speech touching my Lord of Essex; his affirming or denying of his own Inability towards my Lady; that either he doth confess it or de∣ny it: If he do acknowledge it, where is then his Oath cum septima Manu, which the Law imposeth? If he do deny it, where is then your Proof of his Inability, since you ground the whole Substance of the Nullity upon his Lordship's Answer, That he could not know her carnally.

I must yet crave Patience to go a little far∣ther. One other Exception which I take unto this Nullity, is the manner of the Sentence, which by us is to be given, which hath ever been resolved should be in general, not ex∣pressing any Reason particular wherefore we do give it. To say that my Lord is im∣potens in genere versus hanc, and not to tell wherein, is to propound a Riddle to the World, which no Man understandeth. It were a strange Thing in Learning, to say, that such a Creature is Animal, and not to tell whither it be a Man, or a Horse, or a Fish, or a Bird. And although it hath been said, and strongly main∣tain'd,*That it is enough in a Sentence to pronounce a Thing in general, and thatPage  122the Judge is bound to give no Reason of it; yet I would be glad to know whether, how∣soever I will conceal the particular Reason from the Hearers or Standers by, yet were it not fit, that I who am the Judge, and must give the Sentence, or at least consent unto it, should know the Ground whereupon I do give it. Give me leave to speak my Conscience, I think such a Sentence, that propter latens aliquod impedimentum, which is perpetuum & incurabile versus hanc, is nothing but a device to serve a present Turn, which we must deliver in such obscure Words, to blind Posterity that comes after, and to a∣muse those which will inquire into it, as if we had known something which we held not fit to utter, when in Truth we know nothing. I find the Texts of the Law do still set down the Reason, and give a Case particular, as Frigidity, or Section, or un∣fitness of the generative Part, or some such other Matter; but for an Inability, propter latens impedimentum, my dulness is such, that in the whole Book I cannot discover it: And it is a Mystery that cannot enter into me, how a Man should be potent unto other Women, and impotent to his Wife, if it be not in Case of Phrensy, which is not latens impedimentum, and which also find∣eth lucida intervalla.* It was the Assertion of him in the Law, That he did notPage  123know his Wife, but that he had a Power to know other Women. But what wise Man doth be∣lieve him? Or what is there in the Text which doth declare it to be true? I will end this Point with that of our Saviour in the 29th of St. Matthew, That there are three Sorts of Eunuchs, or Men unfit to mar∣ry; the one is of God's making, the se∣cond is of Mens making, and the third is of their own making. The first are they that are past from their Mother's Belly, who either are frigidi, or such as have not Mem∣bers fit for Generation, or some apparent Debility. The second are those who are castrated by Men, or by some violence have that hindred in them, whereunto by Nature they are fit in respect of Procreation. I will not here dispute that idle Maleficium, be∣cause your selves are flown from it. The third hath no coherence with this Noble∣man. Let me know then, in which of the former two you do place it. Is he past from his Mother's Womb? why then do you give him leave to marry again? that he who hath deluded and frustrated one, may also delude another. If he be in the second Rank, why do you not tell us what the Violence is which he hath sustained from Men, or from any other Creature. Let us have, I pray you, some kind of Sa∣tisfaction, and let not this Aenigma in gene∣ral blind us, least the World should say, Page  124 that wilfully we shut our Eyes against the Truth.

6. One Reason I have more, why I yield not to this Nullity, and then I have done. It is drawn from the Inconveniencies which will follow thereupon, if we dissolve the Matri∣mony in such Case as is now desired. I look first on the detriment and harm which will follow, if the Marriage do continue in force, and in vigour, and I do find, that all the inconvenience doth redound but to one Person. Between a Lady and her Husband there is some discontentment, which Time and God's Grace may easily remove: There is then an end of that Controversie. Or if the disagreement shall never be appeased, it is no more but one Lady doth want that Solace which marital Conjunction would afford unto her; which many a good Wo∣man is enforced to endure, and yet com∣mits no Sin, neither labours to violate the Laws of the Church: For suppose the Husband be sick of some long Disease, or languishing Weakness, must not the Wife sustain it with patience and quietness? Sup∣pose the Husband be Captive in some For∣reign Nation, or Prisoner in his own Coun∣try, whereby occasion of marital Comple∣xion is taken from the Wife, no Divine will pronounce, that a Separation is in this Case to be sought. Let a Woman do that in Modesty which others are inforced to do Page  125 out of Necessity; and let her expect God's leisure, in Fasting and in Prayer, and in o∣ther Humiliation. This is all the Inconve∣nience which ariseth to one Person, if she have not the Performance of conjugal Duty.

But look on the other side, what are the Incongruities, or rather Absurdities which will easily follow, if such Dissolutions of Marriages be permitted. I will name only two. The first is the hazard of violating and annulling of Marriage by an ordinary Practice; for if the Gap be open, who will not run in: And the Judge must dispense the Law indifferently to all, if the Proofs be accordingly; for we may not say, that it is for noble Personages, and great Peers in the State, and not for others of inferiour Rank. Whatsoever Couple therefore have no Children, and live discontented, come pre∣sently to take part of this general Jubilee: And, albeit they know in their Consciences, that it which they attempt is unlawful; yet to satisfy their Fancy, they will collude the one with the other, and enter a Prosecuti∣on secretly agreed upon, howsoever in o∣pen shew they seem to differ the one from the other: And who can doubt, but for Money or Favour, they may procure Wit∣nesses, and others who are to be used by the formality of the Law, to testify and depose so much as serves the Turn. By which means we are at a fair pass, when Page  126 not only the Marriage Bed shall be defiled, and Adulteries made frequent, which is a∣gainst the second Table of the Law, but Perjury shall be committed, and God's Name taken in vain, which is repugnant unto the first Table.

A second Inconvenience is the Danger, least both Parties which are freed from their Matrimony, should divers Years after be returned to it again, when perhaps the Husband by a second Wife hath Children, and the Wife by a second Husband hath store of Issue also; for there is no doubt in the Law, but if a Man supposed to be frigi∣dus, and therefore divorced, shall after∣wards Marry, and by begetting of Children shew himself not to be impotent, but apt for Generation, this Man is to be taken from his second Woman, and returned to his first Wife, and the Woman for whose Marriage a Nullity was pronounced in re∣spect of the Insufficiency of her Mate, must be now taken from her second Companion, and returned to the first. Of this the Rea∣son is apparent, quia decepta est Ecclesia, they adjudged him to be impotent upon wrong Information, whom Experience and Truth hath declared to be potent. And what Man can foretel, how variety of Times may produce other Judgments. There may be Question of Land or Inheritance, of Le∣gitimation or Illegitimation; and a wise Page  127 Man would be unwilling to bring it on the Stage when he is dead and gone, and to make it the Fable of the World, whether his Children be born lawfully, or to be re∣puted in the Rank of Bastards. The World is subject to much mutability, and Judges of future Times may peradventure be led with the Power of some great Persons, and perhaps may think upon other Considerati∣ons; that it is but a Conceit, that a Man should be potent unto another Woman, and impotent to his Wife; or that the Common Law doth not know any Maleficium, or that they do not believe, that there may be la∣tens impedimentum perpetuum, and incurabile versus hanc, when they see that the Hus∣band is in shew of the World, a lusty, able Man, and hath well proved his Potency, by begetting Three or Five, or Seven, or Ten Children upon another Woman. These are pretty Things, if a Man do well consi∣der them, and will serve to make distracti∣on between Kinsman and Kinsman, and make work for the Lawyers, and keep the Courts at Westminster that they shall not be idle; which if we could not learn other∣wise, yet Bury's Case before remember'd doth teach us, who was divorced from his Wife in the 3d or 4th Year of Queen Eli∣zabeth, and when his Brother had enjoyed his Land until the 40th Year of the said Queen, then was he thrust out of it, and Page  128 the question'd Son, or his Heir, was put into Possession of it by Trial of Law; a great deal of Money being spent in that Contention, and both Civilians and com∣mon Lawyers in great Numbers were en∣tertain'd of both Sides; and yet the Con∣troversy was not so appeased, but that of my certain Knowledge, within these three Years it had been raised again, and a strong device was laid how to bring this about a∣gain; only my self withstood it, and would not give way unto it, when I was divers Times consulted thereabout; conceiving very well, that it would not be long before some Prohibition would come out of some of the King's Courts, because the common Law disliked, that Mens Inheritance, espe∣cially after Judgments, should be disturb∣ed, when the Parties whom most of all it concerned, are dead long before, and can∣not answer for themselves; whereas, per∣adventure, if themselves had been living, they could have answered that for them∣selves which other Men know not. And there ought to be a settled Course in all Things appertaining to Inheritance.

By this Time, I hope you see, that it is not out of willfulness, or prejudicate Con∣ceit, that I have impugned this Nullity, but out of ground of Reason, and out of scruple of Conscience, which is it that must accuse me, or excuse me, before the ever∣living Page  129 God. I know you have heard what other Men have said, and they have an∣swered for themselves. Upon all which Grounds I make this Conclusion, That howsoever this Matter of Separation with great earnestness hath been persued, yet it is the surer and the safer way to leave it as we find it, and in no Case to dissolve it. I oft remember that Saying, which is fre∣quent among the Canonists; Tolerabilius est aliquos contra statuta hominum dimittere copu∣latos, quam conjunctos legitimè contra statuta Domini separare. That concerneth us who be the Judges, and for the Parties them∣selves, who perhaps can be content to be severed, and to Marry elsewhere, let them know this from me, that they may best expect a Blessing from God when they live in that State where fewest scruples shall a∣rise in their Mind: From which, whether they shall be free in leaving their old Con∣junction, and betaking themselves unto a new, I refer to their wiser Thoughts, when in all probability, if any cross or thwart shall arise in their new intended Matrimo∣ny, this perplexity and anguish will still follow their Souls, that they have done that, whereof in their truest Meditations they have no ground of Conscience, and therefore that it is the Hand of God upon them, who giveth not a Blessing unto that which was unduly sought.

Page  130 You have thus at large heard my Opini∣on against the annullation of this Marriage. Now, if you ask me, what would you then have done concerning this Couple of noble Personages: my Answer is, that I would have a Reconciliation by all means to be labour∣ed; and although that be difficult to bring about, yet it is the more Honour when it is effected. Charity will forgive, and forget the highest Offences. It is St. Augustine's Judgment, That in the greatest Breaches be∣tween Man and Wife, Reconciliation is the best; and the worthiest Pains that can be be∣stow'd, is to bring that about. There want∣eth only one or more good Mediators, and then great Things will be compassed. The disagreement was inconceivable between God and Man, yet Christ, that great Me∣diator, did take it away. The Breach was very bitter between England and Spain, yet our most blessed Soveraign, as a gracious Intercessor, did give an end unto it. Let Divines be used now, as much as Lawyers have been used heretofore. Take the god∣ly Counsel of the one, which will be given freely, as you have taken the Advice of the other with much expence of Money. This I wish for, this I pray for, and if my Coun∣sel had been used, before Things grew to this height, I would have used my best means to have wrought an Atonement. But because there is no hope thereof, and Page  131 this doth expect a legal Decision, proceed you that please unto this Separation. Give your Sentence in scriptis, as you have de∣clared your Opinion in verbis. Five might have served the turn by the Words of the Commission, if seven had dissented, but you have seven Suffrages, and therefore proceed; only this I crave of the Register, that he do make his Act, that this Sentence is given, Joanne Episcopo London, D. Joanne Bennet milite, D. Francisco James, D. Thoma Edwards dissentientibus, potissimum verò Georgio Archiepiscopo Cantuariensi re∣nitente.

This is the Substance of that Matter, which the Archbishop of Canterbury, out of certain Notes which he had drawn up, was ready to have uttered, and no one material Point is added thereunto, as appeareth unto me, the Writer hereof, comparing it with the Notes at such Time as I ended the writing of this, which was on the 28th of September 1613. three Days after the Time when it should have been spoken.