princes of both religions have been likewise equally sensible of every injury that touched their temporals. Thuanus reports in his story, that when the realin of France was interdicted by the violent proceedings of pope Julius the second, the king, otherwise noted for a moderate prince, caused coins of gold to be stamped with his own image, and this superscription, perdam nomen Babylouis è terra.' Of which Thuanus saith, bimself had seen divers pieces thereof. So as this catholic king was so much incensed at that time in respect of the pope's usurpation, as he did apply Babylon to Rome. Charles the 5th, emperor, who was accounted one of the pope's best sons, yet proceeded in matter temporal towards pope Clement with strange rigour; never regarding the pontificality, but kept him. prisoner thirteen months in a pestilent prison; and was hardly dissuaded by his council from having sent him captive into Spain; and made sport with the threats of Frosberg the German, who wore a silk robe under his cassock, which he would shew in all companies; telling them that be carried it to strangle the pope with his own hands. As for Philip the fair, it is the ordinary example, how he brought pope Boniface the 8th to an ignominious end, dying mad and enraged; and how he stiled his rescript to the pope's bull, whereby he challenged his temporals, sciat satuitas vestra, not your beatitude, but your stultitude; a stile worthy to be continued in the like cases; for certainly that claim is mere folly and fury. As for native examples here, it is too long a field to enter into thein. Never kings of any nation kept the partition-wall between temporal and spiritual better in times of greatest superstition. I report me to king Edw. 1, that set up so many crosses, and yet crossed that part of the pope's jurisdiction, no man more strongly. But these things have passed better pens and speeches: here I end them. But now to come to the particular charge of this inan, I must inform your lordships the occasion and nature of this offence. There hath been published lately to the world a work of Suarez a Portuguese, a professor in the university of Coimbra, a confident and daring writer, such an one as Tully describes in derision; nihil tam verens, quam ne dubitare aliqua de ⚫re videretur: one that fears nothing but this, lest he should seem to doubt of any thing. A fellow that thinks with his magistrality and goose-quill to give laws and menages to crowns and sceptres. In this man's writing, this doctrine of deposing or murdering kings seems to come to a higher elevation than heretofore; and it is more arted and positived than in others. For in the passages which your lordships shall hear read anon, I find three assertions which run not in the vulgar track, but are such as wherewith mens ears, as I suppose, are not much acquainted. Whereof the first is, that the pope hath a superiority over kings, as subjects, to depose them; not only for spiritual crimes, as heresy and schism, but for faults of a temporal nature: forasmuch as a tyrannical government tendeth ever to the destruction of souls. So by this position, kings of either religion are alike comprehended, and none exempted. The second, that after a sentence given by the pope, this writer bath defined of a series, or succession, or substitution of hangmen, or bourreaux, to be sure, lest an executioner should fail. For he saith, that when a king is sentenced by the pope to deprivation or death, the executioner who is first in place is he to whom the pope shall commit the authority, which may be a foreign prince, it may be a particular subject, it may be general; to the first undertaker. But if there be no direction or assignation in the sentence special nor general, then, de jure, it appertains to the next successor, a natural and pious opinion; for commonly they are sons, or brothers, or near of kin, all is one, so as the successor be apparent; and also that he be a catholic. But if he be doubtful, or that he be no catholic, then it devolves to the commonalty of the kingdom; so as he will be sure to have it done by one minister or other. The third is, he distinguisheth of two kinds of tyrants, a tyrant in title, and a tyrant in regiment; the tyrant in regiment cannot be resisted or killed without a sentence precedent by the pope; but a tyrant in title may be killed by any private man whatsoever. By which doctrine he hath put the judgment of kings titles, which I will undertake are never so clean but that some vain quarrel or exception may be made unto them, upon the fancy o every private man; and also couples the judg ment and execution together, that he may judge him by a blow, without any other sentence.Your lordships see what inonstrous opinions these are, and how both these beasts, the beast with seven heads, and the beast with many heads, pope and people, are at once let in, and set upon the sacred persons of kings. There Now to go on with the narrative. was an extract made of certain sentences and> portions of this book, being of this nature that I have set forth, by a great prelate and counsellor, upon a just occasion; and there being some hollowness and hesitation in these matters, wherein it is a thing impious to doubt, discovered and perceived in Talbot, he was asked his opinion concerning these assertions, in the presence of the best: and afterwards they were delivered to him, that upon advice and sedato animo, he might declare himself. Whereupon, under his hand, he subscribes thus; May it please your honourable good lordships: concerning this doctrine of Suarez, I do perceive, by what I have read in this book, that the same doth concern matter of faith, the controversy growing upon exposition of scriptures and councils, wherein, being ignorant and not studied, I cannot take upon me to judge; but I do submit my opinion therein to the judgment of the catholic Roman church, 'as in all other points concerning faith I do. And for matter concerning my loyalty, I do acknowledge my sovereign liege lord king 'James, to be lawful and undoubted king of all My lords, upon these words I conceive Talbot hath committed a great offence, and such a one, as if he had entered into a voluntary and malicious publication of the like writing, it would have been too great an offence for the capacity of this court. But because it grew by a question asked by a council of estate, and so rather seemeth, in a favourable construction, to proceed from a kind of submission to answer, than from any malicious or insolent will; it was fit, according to the clemency of these times, to proceed in this manner before your lordships. And yet let the hearers take these things right; for certainly, if a man be required by the council to deliver his opinion whether king James be king or no; and he deliver his opinion that he is not, this is high treason. But I do not say that these words amount to that; and therefoie let me open them truly to your lordships, and therein open also the understanding of the offender himself, how far they reach. this: there may be some difference to the guilt of the party, but there is little to the danger of the king. For the same pope of Rome may, with the same breath, declare both. So as still, upon the matter, the king is made but tenant at will of his life and kingdoms, and the allegiance of his subjects is pinned upon the pope's acts. And certainly it is time to stop the current of this opinion of acknowledgment of the pope's power in temporalibus; or else it will sap and supplant the seat of kings. And let it not be mistaken, that Mr, Talbot's offence should be no more than the refusing the oath of allegiance. For it is one thing to be silent, and another thing to affirm. As for the point of matter of faith, or not of faith, to tell your lordships plain, it would astonish a man to see the gulph of this implied belief. Is nothing excepted from it? If a man should ask Mr. Talbot whether he do condemn murder, or adultery, or rape, or the doctrine of Mahomet, or of Arius, instead of Suarez; must the answer be with this exception, that if the question concern matter of faith, as no question it doth, for the moral law is matter of faith, that therein he will submit himself to what the church shall determine? And, no doubt, the murder of My lords, a man's allegiance must be inde- princes is more than simple murder. But to pendent and certain, and not dependent and conclude, Talbot, I will do you this right, and I conditional. Elizabeth Barton, that was called will not be reserved in this, but to declare that the holy maid of Kent, affirmed, that if king that is true; that you came afterwards to a betHenry 8, did not take Catharine of Spain again ter mind; wherein, if you had been constant, to his wife within a twelvemonth, he should be the king, out of his great goodness, was resolved no king: and this was treason. For though not to have proceeded with you in course of this act be contingent and future, yet the pre-justice: but then again you started aside like a paring of the treason is present.-And in like manner, if a man should voluntarily publish or maintain, that whensoever a bull of deprivation shall come forth against the king, that from thenceforth he is no longer king; this is of like Nay, I will go farther with you. Your last nature. But with this I do not charge you submission I conceive to be satisfactory and neither; but this is the true latitude of your complete. But then it was too late; the king's words, that if the doctrine touching the killing honour was upon it; it was published and a day of kings be matter of faith, then you submit appointed for hearing. Yet what preparation yourself to the judgment of the catholic Roman that may be to the second grace of pardon, that church: so as now, to do you right, your alle-I know not: but I know my lords, out of their giance doth not depend simply upon a sentence of the pope's deprivation against the king; but upon another point also, if these of doctrines be already, or shall be declared to be matter of faith. But, my lords, there is little won in broken bow. So that by your variety and vacillation you lost the acceptable time of the first grace, which was not to have convented you. accustomed favour, will admit you not only to your defence concerning that that hath been charged; but to extenuate your fault by any submission that now God shall put into your mind to make. 96. Proceedings between the Lady FRANCES HOWARD, Countess of ESSEX, and ROBERT Earl of ESSEX, her Husband, before the King's Delegates, in a Cause of Divorce: 11 JAMES I. a. D. 1613. [3 Kennet's Hist. of England, 686, 692. Works, 78.] * 1 Bacon's bert had fully attained the age of 18 years, as time and place did serve, after the fashion of other married folks, the said Frances Howard in hope of lawful issue, and desirous to be made a mother, lived together with the said Robert at bed and board, and lay both naked and alone in the same bed, as married folks use; and desirous to be made a mother, from time to time, again and again yielded herself to his power, and as much as lay in her offered herself and her body to be known; and earnestly desired conjunction and copulation. V. And also the said Earl, in the same time very often, with his lawful wife, which she refused not, again and again, did try to have copulation, as but used the best means she could : notwithstanding all this, the said Earl could never car UPON the Petition of Frances countess of Essex, complaining that the Earl her Husband was incapable of consummating their Marriage, and praying a Commission to examine, if her Complaint was well founded; the king granted her request, and appointed the following persons Commissioners: George archbishop of Canterbury, John bishop of London, Lancelot bishop of Ely, Richard bishop of Litchfield and Coventry, John bishop of Rochester, sir Julius | Cæsar, LL.D. sir Thomas Parry, LL.D. sir Daniel Donne, LL.D. sir John Bennet, LL.D. Dr. Fraucis James, and Dr. Thomas Edwards, The LIBEL contained the following Allegations: I. That she, at the time of the Marriage, was 13 years old, and is at this time 22 or 23. II. That she and Robert Earl of Essex were mar-nally know her, nor have that copulation in ried by publick rites and ceremonies of the church in January 1603. III. That the aforesaid Robert, at the time of the pretended Marriage, was about 14, and is about 22 or 23 at this time; and ever since, and at this present, is a man (as far forth as a man may judge), and hath been in good health, and perfect estate of body, nor any way hindered by any ague or sickness, but that he might have carnal copulation with a woman. IV. That since the pretended Marriage, at least by the space of whole and continuate three years after the said Ro any sort which the married bed alloweth. VI. Yet before the said pretended Marriage, and since, the said Earl hath had, and hath power and ability of body to deal with other women, and to know them carnally, and sometimes have felt the motion and pricks of the flesh carnally, and tending to carnal copulation, as he saith and believeth; and peradventure, by a perpetual and natural impediment hath been hindered all the former time, and is at this present, that he can have no copulation with the said lady Frances. VII. Furthermore, the * Sir Anthony Weldon's "Court and Cha- first marriage must this second take place; many racter of K. James," after narrating the murder meetings of the bishops, and the prime civiof Overbury, introduces, p. 76, Lady Essex's lians, in which there wanted no bribes from the Divorce thus: "Now was all, as they believed, lord, lady, and their friends, to have this nullity quiet and in the depth of security, and the earl brought to pass, wherein the discourse would of Somerset and countess of Essex began to have better befitted the mouths of bawds and carry their loves more openly and impudently, ruffians than the grave divines, among them so that the world did talk very loudly and bishop Neale, then bishop of Rochester, a broadly of this adulterous meeting; it must creature and favorite of the house of Suffolk, from that ground proceed to an adulterous took up a learned discourse in the science of marriage, as well to the wronging a young no- bawdry, how many degrees in that science bleman, as to the dishonour and shame of them- must produce a nullity, wherein were so many selves. But they must needs go the devil beastly expressions as, for modesty sake, I will 'drives,' yet know not how handsomely to not recite them, being offensive to my very effect this, but by making the king a party in thoughts and memory. Aristotle's problems this bawdy business, which was no hard matter was a modest discourse to his, and he appeared to effect, for the king's eye began to wander to be better studied in that than in divinity; after a new favorite, being satiated with the and to wind up his learned discourse, conold, therefore for the bringing this bawdry to a cluded all those met in this lord and lady. marriage, the bishops must be principal actors, The archbishop of Canterbury, Abbot, to his (as I know not in what bad action they would everlasting fame, mainly opposed all the pronot be lookers on); and the bishop of Win-ceedings, and protested against them, for which chester, an excellent civilian and a very great he ever after lived in disgrace, excluded from scholar, must be the principal, for which his the council table, and died in the disgrace of son was knighted, and will never lose that title the king on earth; though in favour with the of sir Nullity Bilson. For by a nullity of the King of kings." VOL. IN 3 E not. DOUBTS conceived out of the Fact and Process in the Suit between the lady Frances Howard, and the Earl of Essex. 1. Whether the Libel be defective, especially in the 4th Article, where it is said, that Dominus Comes Essex pluribus et iteratis vicibus' (which may be verified and satisfied in two or three times) dictam dominam Fran ciscam ejus uxorem prætensam cognoscere tentavit,' &c.-2. Whether the Answer of my lord of Essex to the said 4th Article in that behalf, being but thus, That he did divers times attempt, &c.' be full, certain and sufficient.-3. Whether in this case my lord of Essex his oath (cum 7 manu propinquorum)' be not by law requisite, as well as my lady's. said lady Frances hath been, and is fit and able | know her, but that he did not, nor could to have copulation with a man, and such a one as may be carnally known; neither hath in this regard any impediment. VIII. Moreover, the said lady Frances remaineth, and is at this present a Virgin. Also at the time of the pretended Marriage, the said lady Frances was unacquainted with the Earl's want of ability and impediment, formerly mentioned. IX. And furthermore the said Earl, long before this suit commenced, hath very often, and at sundry times, confessed in good earnest, before Witnesses of good credit, and his friends and kinsfolks, that although he did his best endeavour, yet he never could; nor at this time can, have copulation with the said lady Frances, no not once. X. And lastly in regard of womanish modesty, the lady Frances hath concealed all the former matters, and had a purpose ever to conceal them, if she had not been forced,-4. Whether my lord of Essex would be inthrough false rumours of disobedience to the said Earl, to reveal them.-She requireth, since this pretended Matrimony is but in fact, and not in right, it may be pronounced, declared, and adjudged as none, and of none effect; and she may be quiet and free from all knots and bonds of the same, by your sentence and authority. spected by physicians, to certify (so far as they can by art) the true cause and nature of the impediment.-5. Whether by triennial colabitation, there having been no carnal copulation between them (Impedimentum maleficii” being accidental), præsumatur præcessisse vel potius subsecutum fuisse matrimonium contractum et solemnizatum.-6. Whether they The Earl of ESSEX put in his ANSWER the 5thing their triennial cohabitation before the suit ought post præceptum judicis' (notwithstand of July, 1614. The 1st and 2nd he answereth affirmatively. To the 3rd, he thinketh that at the time of his Marriage, he was full 14 years, and is now 22 and upwards; neither since hath had, or hath any sickness or impediment to hinder him, but that he might have had copulation with a woman, saving in the time of his sickness of the small pox, for two or three years after his marriage, which continued for a month or six weeks, and at another time, when he had a few fits of an ague.-To the 4th, he affirmeth, that for one year he divers times attempted; that the two other years, when he was willing, she shewed herself sometimes willing, but other times refused, and he lay in bed most commonly with her, but felt no notions or provocations. -To the 5th, he answereth, that he never carnally knew her, but found not any defect in himself, yet was not able to penetrate into her womb, nor enjoy her.-To the 6th, he believeth, that before and after the Marriage, he hath found an ability of body to know any other woman, and bath oftentimes felt motions and provocations of the flesh, tending to carnal copulation, but for perpetual and natural impediments, he knoweth not what the words mean; but that he hath lain by the lady Frances two or three years last past, and had no motion to know her, and be believes never shall.--To the 7th, he believeth not that the said lady Frances is a woman able and fit for carnal copulation, because he hath not found it.-To the 8th and 9th, he believed them both to be true, and thinketh that once before some witnesses of credit, he did speak to this purpose, That be oftentimes had endeavoured carnally to begun) to cohabit together, saltem per ali- "That since the earl of Essex was 18 years of age, he and I have for the space of 3 years divers and sundry times lain together in naked bed all night. And at sundry of the said times the said earl hath purposely endeavoured and attempted to consummate marriage with me, and to have carnal copulation with me for procreation of children: and I have at such times, as the said earl bath attempted so to do, yielded myself willing to the same purpose. All which notwithstanding, I say and affirm upon my Oath, that the said earl never had carnal copulation with me, FRANCES HOWARD." INTERROGATORIES adminstered to all Witnesses (excepting the earl and countess of Suffolk) produced, and examined on behalf of the earl of Essex, and who had been produced against him on the part of the lady Frances Howard, in a Suit brought by the said lady against the earl of Essex, for the Nullity of a pretended marriage. 1. Let each witness be interrogated, as to his age, birth, condition, and place of abode; and where he has chiefly resided for ten years last past; and how long he has known the parties contesting. 2. Whether he is a relation or kinsman of the party on whose behalf he is produced; and if so, in what degree of consangninity. 3. Which of the partics, plaintiff or des nistered for the other side. abode.-2d Art. That she is cousin-german should come. An fendant, he most favours; with which of them Her DEPOSITIONS to the Interrogatories admihe is most conversant, and to which he would confer the better-of-the-day, if in his power. 4. Whether he has communicated to any body, or any body has conferred with him concerning the nature and substance of his deposition in this cause; And if he auswer in the affirmative, then let him declare with whom he so conferred, and what the discourse that passed between them. 5. Whether he came of his own accord, or by compulsion, to give his testimony in this cause. 6. Let him depose what he knows of the contents in, the 4th article of the libel put in, in this cause; or any part thereof: And in what month and year the earl of Essex attained to the full age of 18 years; and in what place and places the earl and the plaintiff, for the whole space of three years after such time, had society of bed and board, cohabited and lay together; and for how long together in each distinct place. 7. Let him likewise depose what he can say to the contents in the sixth article of the aforesaid libel; and whether he knows what perpetual and incurable impediment the earl did and does labour under; and let him express the nature and quality thereof, and when he knew it; and let him give the causes of such his knowledge in every circumstance. 8. Let him depose likewise what he can say to the contents in the 10th Article of the said libel: And of the time and place, and how often, and before whom the earl confessed and acknow ledged, as in the said Article is contained and specified. DEPOSITIONS upon the Articles of the Libel put in by the Lady Frauces Howard, taken June 2, 1613. Katharine Fines, daughter of Thomas lord Clinton, aged about 18 years, deposeth, that she hath known the lady Frances for about a year and a half, and the lord of Essex for above a year. To the 1st, 2d, and 3d Article, cannot depose.--To the 4th Art. says, That from Midsummer last to All-hollantide, the earl of Essex and lady Frances remained and kept company together as man and wife; first in the countess of Leicester's house at Drayton in Warwickshire; and after at the earl's own house at Chartley in Staffordshire: And that for two of the nights they lodged at Drayton, being on a Sunday at night, and on a Monday at night, they to her knowledge lay together in one chamber; she seeing the earl go into the said chamber undressed and ready for bed; and she verily believes they did lie together in the same bed those two nights, for that she knows there was but one bed in the said chamber. That before Christmas last the said lady Frances lying at Salisbury-house in the Strand, the earl came thither and went into the chamber where lady Frances was in bed, and went to bed to her, and there was no other bed in that chamber; and this deponent heard the earl and lady Frances talking together a good part of that night. The DEPOSITION of Elizabeth Raye, the daughter of William Raye, of Woodstock in Oxfordshire, gent. taken to the Libel: Aged above 20 years. That she has known the lady Frances for above two years; and the earl of Essex for the same time.-To the 4th Art. That she served the lady Frances for above twelve months, and that shortly after she came to serve her, my lady went to my lord Knowles's house at Cawsam in Oxfordshire, where she stayed about a fortnight, and the lord Essex came thither to her, and laid in naked bed with the said lady Frances divers nights, as this deponent hath heard them report that attended the lady in her chamber: That the deponent herself at Drayton attending the said lady in her chamber, did see them in naked bed together as man and wife for divers nights; as they did likewise afterwards at Chartly, for above a quarter of a year, and at Michaelmas after that, at Durhamhouse at London, Iler Examination to the Interrogatories on the other side. To the 1st Art. Speaks as to her abode at distinct times.-2d Art. Answers in the negative.-3d Art. That she favours both parties equally; converses with neither of them; and if in her power, would have right take place.4th Art. Auswers negatively.-5th Art. That she was requested to come to testify in this cause, but was not compelled by any process. 6th Art. Ilath heard it reported that the earl of Essex was 22 years old in January last.— 7th and 8th Art. No wise concern this depo That she is aged about 55 years, and hath known both the parties respectively from their infancy.-To the 4th Art. That the deponent having oftentimes occasion of business with the lady Frances, hath come to her since her marriage to the earl, and hath seen the earl and she dine and sup together as man and wife: That between Michaelmas and All-hollantide was three years, this deponent coming to lady Frances's lodging at Hampton-Court early in the morning, she was brought into the bed chamber, where she did see them in naked bed |