was not, Paul was not: Christ said to all his disciples, Cribraverit vos Sathanas;' and if the Devil hath any power, it is over the flesh, rather over the filthiest and most sinful part thereof, whereunto original sin is soldered; as God, before and under the law, to shew officialem of purging man's original sin, ordained the præputium of the foreskin and to exempt this of our profession from the power of witchcraft, is a paradox never yet maintained by any learned or wise man.-That the Devil's power is not so universal against us, that I freely confess; but that it is utterly restrained quoad nos, how was then a minister of Geneva bewitched to death, and were the witches daily punished by our law? If they can harm one but the papists, we are too charitable for avenging of them only.-Satan is permitted to punish man, as well for his breach of the second as of the first table, and thereof are we no less guilty than the papists are; and if the power of witchcraft may reach to our life, much more to a member, not so governed by the fancy, wherein the Devil hath his principal operation; and he may so estrange the husband's affection towards the wife, as he cannot be able to perform that duty to her; for that is a common thing in many men's natures, that they cannot do that thing but where they love, nor fight but where they are angry. God keep us therefore from putting the trial of our profession upon miracles; let the miracle-mongers live by their own trade. To the seventh Argument touching Remedies, what do you know, whether both parties, or either of them hath used these means of remedy or not? And that special remedy should be used publickly, for there I can see no necessity; for Non interest reipub. nec eccles.' and private persons are commanded to do their fastings and alms, secretly and in private: no such cure also is likely to succeed well, except the parties own hearts and desires be set thereupon.-And as for your Conclusion upon your incommodum, whether upon his person or the example, I can see none in either, so as to the couple, between them marriage was never accomplished truly; they will peradventure both of them by the declaration of the nullity be capable to accomplish marriage with others, which they could never do between themselves; wherein they may have the satisfaction of their hearts, and enjoy the blessing of procreation of children.-And as for the Example, the law shall be fulfilled with due administration of justice, which cannot prove for an example or precedent of a counterfeit nullity hereafter, Authoritas facti,' or rather non facti, sed luce clarior' in this case, besides the many probatious and confessions of the parties which have been taken in this process: whereas by the contrary, they shall be forcibly kept together, but never their persons or affections, and they still be forced to live in perpetual scandal, or misery, or both; and what such a kind of forced continency may avail, the monks continency may teach us: and for a precedent in time to come, that reacheth no VOL. II. further, than to open a way of lawful relief, to any person who shall chance to be distressed in that sort. And for legal Doubts, they concern none of your calling; if your conscience be resolved in points of divinity, that is your part to give your consent to the nullity, and let the lawyers take the burden of making that firm; and as for the triennial probation, I hope nó man can be so blind as to make a doubt, whether that be taken before or after the suit begun, and in conclusion of divine solution of this question proved clearly, that this resolution of this doubt, howsoever it was in blindness as you think, that is now proved in the greatest time of light and purity of the profession of the gospel.-And for your Extract upon the late Divines Opinions upon this Question, I cannot guess what your intent was in sending them to me, for they all agree in terms with my opinion: but there is such a thing as maleficium, et maleficiale versus hanc;' and your very interlude passages prove that clearest and for that advice concerning the remedies, that is but consilium non de'cretum,' not imposing a necessity: but is to be used by discretion, as occasion shall prove and require it.-To conclude then, if this may satisfy your doubts, I will end with our Saviour's words to St. Peter, Cum conversus fueris, confirma fratres tuos;' for on my conscience, all the doubts I have yet seen, are nothing but nodos in scirpo quærere."" : Notwithstanding the Confessions in the Earl's Answer, the Court thought it necessary to satisfy themselves of the truth by the inspection of midwives and matrons. Whereupon it was decreed by the Court, that six midwives of the best note, and ten other noble matrons, out of which they themselves would chuse two midwives, and four matrons, should inspect the Countess, the Entry whereof is as follows: reve "Tunc Domini, viz. Arch. Cant. Lond. Eliens. Covent, et Licht. Cæsar, Parry, Donne, Bennet, Edwards, habita inter eos privata deliberatione, ex numero matronarum prædict. elegerunt; the lady Mary Tirwhit, wife of sir Philip Tirwhit, bart.; lady Alice Carew, wife of sir Matthew Carew; lady Dalison, wife of sir Roger Dalison; lady Anne Waller, widow. Ex ex obstetricum numero, &c. Margaritam Mercer et Christianam Chest. Et assignârunt procuratorem dictæ dominæ Franciscæ ad sisten um hujusmodi inspectrices coram rendo Patre Episc. London. Cæsar, Donne, &c. inter cæteros nominat, isto die inter horas quintam & sextam post meridiem, juramentum in hac parte subituras, atque inspectione facta fideliter relaturas earum judicium juxta earum scientiam et experientiam, &c. coram dictis Dominis delegatis, sicut præfertur, assignatis quam cito fieri possit ante horam quartam et sextam post meridiem diei Jovis proximæ, alioquin ad comparend. hoc in loco, coram Commissariis dicto die Jovis inter horas quartam et sextam post meridiem ejusdem diei, carum judicium hanc in parte tunc relaturas, et ad 3 F interessendum hora et loco respective prædictis, ad videndum inspectrices prædictas juramento in hac parte onerari; nec non quibuscunque aliis diebus hora et loco prædictos dominos Commissarios nominat, dictis inspectricibus, ad referendum earum judicium assignat." never had, nor could, nor should ever know her carnally. THE SENTENCE. Whereupon the Delegates declared the law to be, That impotentia coëundi in viro whatsoever, whether by natural defect, or accidental means, whether absolute towards all, or re mouy, and be perpetual (as by law is presumed, when after three years trial, after the man is of the age of 18 years, there has been nil ad copulam, and the marriage not consummated) is a just cause of Divorce à vinculo matrimonii; and that the Proofs produced in this Case were abundantly sufficient to convince them, of the Earl's Impotency; and therefore pronounced Sentence that they should be divorced from each other, and be at liberty to marry again; which Sentence was as follows: Accordingly between the hours of that day aforesaid, were presented before the delegates the said ladies, and sworn ad inquirend. et in-spective to his wife only, if it precede matrispiciend. 1. Whether the lady Frances were a woman fit and apt for carnal copulation without any defect, which might disable her for that purpose. 2. Whether she were a virgin carnally unknown by any man. Whereupon they went from the presence of the Commissioners into the next room where the countess was, who was left alone with the said ladies.* After some convenient time they returned, and delivered in their Report under their hands; all persons being removed except the Register, that so the ladies and midwives might more freely deliver their secret Reasons, &c. which were not fit to be inserted into the Record; and this is in sum their Report: 1. That they believe the lady Frances fitted with abilities to have carnal copulation, and apt to have children. 2. That she is a virgin uncorrupted. 6 6 That Robert earl of Essex, and the lady 'Frances Howard, contracted by shew of Mar'riage, did cohabit in one house, and lie toge'ther in one bed; nudus cum nuda, et solas 'cum sola; and that the said lady Frances did 'shew herself prompt and ready to be known of him, and that the said Earl neither did nor 'could have knowledge of her, although he did And to corroborate all this, the countess in think himself able to have knowledge of other open court produced seven women of her con-women; and that the said lady Frances by sanguinity, That inasmuch as the truth was inspection of her body by midwives, expert in best known to herself, she might by virtue of matter of Marriage, was proved to be apt for her Oath discover the same, and her oath carnal copulation with man, and yet a virgin: should be no farther regarded than as it was confirmed by the oath of her kinswomen. In order hereto the Countess took an oath, That since the earl was 18 years old, for three years be and she had lain in bed, &c. as in the Libel. And then the seven noble women, viz. Katharine countess of Suffolk, Frances countess of Kildare, Elizabeth lady Walden, Eliz. lady Knevet, lady Katharine Thynne, Mrs. Katha-have decreed, and do declare, the pretended rine Fiennes, Mrs. Dorothy Neale, being sworn, deposed that they believed the same was true; and in particular because, 1. That after they were both grown to years of puberty, they both endeavoured copulation. 2. That notwithstanding, on her part, as appeared by the inspectors, she remained a Virgin uncorrupted. 3. That the Earl had judicially sworn, That he 6 6 6 Therefore we the said Judges deputed in the Cause, first invocating the name of Christ, and setting God before our eyes, do pronounce, decree, and declare, That the earl of Essex, for sume secret, incurable, binding impediment, did never carnally know, or was 'or is able carnally to know the lady Frances Howard: And therefore we do pronounce, 'Marriage so contracted and solemnized de 'facto between them, to have been, and to be utterly void and to no effect, and that it did want, and ought to want the strength of the law: And that the lady Frances was, and is, and so ought to be free, and at liberty from any bond of such pretended marriage, de facto, 'contracted and solemnized. And we do pronounce, that she ought to be divorced, and so we do free and divorce her, leaving them as touching other marriages to their consciences in the Lord. Which our definitive Sentence and Decree we ratify and publish. Thomas Wint.; Lancel. Ely; Rich. Coven. and Lichf.; John Roffen. bishops.-Julius Cæsar, Thomas Parry, Daniel Donne, Doctors.' Some Authors say, that the countess, under a pretence of modesty, having obtained leave to put on a veil, when she was inspected, caused a young woman of her age and stature, dressed in her clothes, to stand the search in her place. Sir Anthony Weldon, p. 81 of his "Court and Character of King James," positively affirms this, vouching his authority in these words: "If any make doubt of the truth The following Commissioners could not agree of this story the author delivers, upon the repu- to this Sentence, and therefore absented themtation of a gentleman, he had it verbatim, from selves. George Cant.; John London.; bishops. a knight, sir W. B. (otherwise of much honour,--John Bennet, Francis James, Thomas Edthough the very dependancy on that family wards, doctors. may question it) which did usher the lady into the place of inspection, and hath told it often to his friends in mirth." Dec. 5. Soon after this Sentence, the countess was married to the viscount Rochester, lately made earl of Somerset. The foregoing Account of the Proceedings between the Earl of Essex and Lady FRANCES HOWARD, being but short and very imperfect, wanting the Arguments of the Civilians, &c. the following Account, written by Dr. George Abbot, Archbishop of Canterbury, with the Speech he intended to have made, and King James's Letter to him, will throw much light upon that affair, and help greatly to explain it. THE CASE OF ROBERT EARL OF ESSEX, AND THE LADY FRANCES HOWARD. · : Some MEMORIALS touching the Nullity be- great difficulty, and therefore wished his lordtween the Earl of Essex and his Lady, brought into publick." I told him, That he ship to be well advised, before any thing was pronounced September 25, 1613, at Lam- must proceed either upon confession or proof: beth (and the Difficulties endured in the that it was probable, the earl would not consame), by George, Archbishop of Canter-fess his own impotency, for then he blemished bury. himself: that my lady's oath in that case was BEING at the Court at White-Hall, on the not sufficient; and how other proofs might be 12th of May, 1613, or thereabouts, his majesty had, I could not conceive that the earl moved me, that I would be a commissioner in in open estimation was to be thought an a controversy to be begun between the earl of able man; that bis father was not thought Essex and his lady for the separating of them; in that kind unsufficient.' The lord chamand when his majesty had ended those few herlain replied, That, perhaps, the father's words with me, my lord chamberlain, who was sin was punished upon the son: that it was then in the gallery, spake also unto me to that truth, that the earl had no ink in his pen : purpose. It was unto me a matter very strange, that himself had confessed, that he could not having heard before of some discontentments know a woman, and that before divers noblebetween that noble couple; but never imagin- men, and some of them his own friends, naming that matters were come to that head. My ing, as I remember, the earls of Northampton answer was alike to both, "That I did not and Worcester, and the lord Knowles.' All know the ground whereupon they intended to this while I never dreamed of impotentia vernove; but that, if I were to be a judge in any sus hanc', but conceived, that they would such question, I would pray, that other bishops, charge the earl simply with disability. The being near the town and court, might be joined lord chamberlain then seemed unto me fully with me." The persons that were named then, resolved to proceed, and told me whom he were, my lord of London, my lord of Ely, and would have in the commission, the bishops of my lord of Litchfield (for at that time was my London, Ely, and Litchfield, the two Chancellord of Bath with the queen's majesty at Bath). lors of the Exchequer and Dutchy, my Judges; Besides, I prayed both the king's majesty, and (for so he called them) sir Daniel Dun, sir my lord Chamberlain, That before any such John Bennet, Dr. James, and Dr. Edwards. I thing were entered into, I might speak private- told his lordship, That I liked the persons ly with my lord of Essex, for the satisfying of very well.' The next news I heard was about mine own mind;' which by both was permitted a day or two after, That the commission was unto me. The day after I sent for the earl; out under the great seal;' which I wondered at, and having private speech with him, only about by reason that I thought, that my words to the the ability of his body, and nothing else, I found lord chamberlain being well weighed, would him generally much reserved in talk, but only have moved some longer consideration. Well: avowing the ability of himself for generation; the commission is brought; it is accepted, and and that he was resolved never to lay any ble-proceeding decreed; the earl of Essex is callmish upon himself that way. I knew not well ed; the libel is put in. When we saw it, and what to make of this ; for I did not then under- that it contained impotentia versus hanc', most stand, that some lords had met before at White- of us, who were not acquainted with the proHall on both parts, (the lord privy-seal, the ject before, were much amazed at it. I told lord chamberlain, the east of Southampton, the counsel for my lady, That they had laid a and the lord Knowles, as afterwards I heard) very narrow bridge for themselves to go over :' to settle an order by consent, how this prose- So said my lord of London, and divers of the cution should be; that is to say, That a separa-rest; only my lord of Ely was still silent. My tion should be inade, and my lord's honour lord of Litchfield, two several times, uttered every way preserved. Within a day or two, coming to White-Hall, I had speech with the lord chamberlain, in the gallery going towards St. James's Park. I might not reveal all particulars of that which passed in private; but yet I told his lordship, That I had spoken with the earl of Essex, and I perceived it was like to be a matter of speeches, as much grieving and repining at this controversy: That he was ordinary to the earl of Essex, and had been in his house at Chartley, which he saw to be well governed; and the earl did bear himself most religiously therein, to his great comfort: that his wife had the honour to be cousin-german to the countess of Suffolk; and therefore he had no reason but to wish well to the earl of Essex and his lady both. Yet, if he had been worthy to be consulted withal, he should have thought that seven years had been little enough to have delibeYated, whether it were fit to bring such a business into question before the world.' Another time he told us, That it was very good, that we should proceed with great warmness in this cause: for,' saith he, the world looketh on us what we do; and there were not more eyes upon the earl's father losing his bend, than there be upon the earl now losing his wife.' He told me afterwards, That he had illwill for those speeches, and complained that some among us did teil tales of all that was said | and done.' (Aud so it appeared afterwards, that sir J. Cæsar and sir Daniel Dun did.) Sir Thomas Parry, in all bis speeches, privately murmured against this nullity, till he came to Windsor: where, the day that the king heard us, the lord chamberlain, in my presence, spake privately with him and sir Julius Cæsar about this matter; and from that time forward, Mr. Chancellor of the Dutchy was altered. My lord of Ely, also, for a great while, was in dislike of the separation, (as I have credibly heard he opened himself to sir Henry Savile) until such time as the king spake with him, and then his judgment was reformed. But truth it is, that among us he said nothing. the seven Compurgators. I noted therein some things. A paper was brought, containing, verbis præcisis, what her ladyship would swear. We saw it, and considered it, and found it too bare and slight to enforce any thing. The commissioners advised, that it should be more full. Dr. Steward accordingly drew it; but he must go forth to the lady, to know whether she would swear it. At last it was agreed unto. When she came to subscribe it, after the oath taken, one or two of her brothers standing at her back, put her in mind that she must not write her name Frances Essex, which she most willingly remembered, and subscribed Frances Howard. We saw my lord of Litchfield's wife to be one of the seven. We were afterwards informed very credibly, That the lady Knevet had declared her sorrow, that she was used in such an action, and said, 'That she wept all the day about it.' These things pleased me little, that nobody took comfort in the business. The Things go on in a course till Midsummer day. Then did the king deal with me privately, as if he had received divers complaints against me. The first was, That we delayed the proceeding, inasmuch as the meeting was put off, from the 18th of June, till the 2d or 3d of July.' My answer was, We had rather gone too fast: we had sat forenoon and afternoon. Now the earl's answer is taken, which ap- term now grew to an end, and we had many peareth. In it there were divers things very-ob- businesses to dispatch of the king's: That the servable. He used no ill speech of his lady, for commission day for causes ecclesiastical was which we all much commended him. I gave him put off for a week, by reason of Midsummer so strict a charge to speak the truth, requiring day falling on a Thursday; and consequently, him, as he would answer me before God, at that our proceeding in this cause, which comthe last day, to deliver nothing for favour or monly attended the other commission, was of affection, but to inform us in the verity, that necessity to be deferred.' But my principal it wrung from him something which I supposed answer was, That we could not shorten it; he intended not to speak so plainly. He gave for the counsel on both parts had agreed upon the reason of his having no motions to know that day in July, and so it was upon the acts: his lady carnally, and of his thinking that he howsoever, therefore, the counsel for my lady never should, When I came out of France, I moved openly in court to abbreviate the time, loved her; I do not so know, neither ever shall yet the counsel for my lord would not renounce I.' When he was to answer to the article, that nor alter their term probatory, but kept them she was Virgo incorrupta; he smiled, and close unto it.' Another objection was, That said,She saith so, and she is so for me. Sir I acquainted not the king, from time to time, Daniel Dun catched these words, and bid the how matters did go." I answered, That I register set down then, credit articulum esse knew not myself: for as yet there was no pubverum.' These things gave me no great en-lication of witnesses; when any thing came to couragement to the business; but yet being at my knowledge, his majesty should understand it.' very little leisure, I let matters' go on, and in It was added, That divers persons repaired mine own part resolved nothing. Then the unto me, who wished not well to the business.' witnesses were deposed, but not published. Belike, said I, they mean the earl of SouthThe inspectresses were chosen, who came most ampton, who came in the other day, when we unwillingly unto it; and howsoever sir Julius were all sitting together: but his coming was Cæsar and sir Daniel Dun, whom we never about John Cotton's cause; and I never had a suspected to be as parties in the cause, as af-word with him in all my life, touching this bu terwards they appeared to be, made all clear siness.' 'No,' said the king, and smiled, it is and fair weather; yet my lord of London told sir Henry Nevile.' Indeed,' quoth I,' he was us openly, That he being with them, found with me the other day, and this very morning : that the ladies knew not well what to make of but your majesty well knows what was the reait; that they had no skill, nor knew not what son. It was touching that cause, which your was the truth; but what they said, was upon majesty commanded me to send for him about. the credit of the midwives, which were but two, I delivered hun your mind the one day, and he and i knew not how tampered with.' Then gave me an answer the other.' At this time, came the lady Frances to take her oath, with his majesty cast out some words, as if he wished 6 6 of the king's to his lordship, wherein he was to expostulate with me for delaying the business. I gave his lordship answer what was done, and his lordship professed that he was satisfied, and that no man could do more than I did. On the Monday, the counsel for my lord put in their answer, which was round and picquant. The lord chamberlain had notice of it, and complained thereof to the king. I sent his majesty the copy thereof, and received from the king a letter written all with his majesty's own hand, shewing dislike thereof. At that time, sir Wm. Button threatened sir Daniel's servant hard for that answer, as the said sir Daniel divers weeks after told me. The commissioners considered of the answer, and disallowed it, giving order, that no record should remain of it, but that it should be utterly defaced. This was very well accepted, and now my lord of Canterbury was a very honest man. But till this was done, their followers gave out, that the king had in two letters so schooled the archbishop, as he was never schooled in all his life. well to the nullity; but it was so obscurely, that I did not conceive that earnestly he desired it. After this day, the complaints were many which were made to the king against me, and many threats were used, and divers tricks were played to urge me to yield to the nullity. One was, That I should suffer the earl of Essex to go out of town.' I answered, He had made his answer, and had his proctor, and it was our cus tom then not to stay men.' His majesty commanded me to inquire, if his presence were not necessary; and if it were, then I should stay him. I sent to sir Daniel Dun, to sir John Bennet, and to Dr. Steward; and they all agreed, that there was no need of his lordship's being in town. And of this I sent word to the lord chamberlain; and my lord of Essex wàs permitted to depart. One while it was given out, that I was moved by the queen to cross them; when, in truth, I had not spoke with her thereabout: another while, that I had spoke with the earl of Essex at first, and hence his lordship grew less pliable; when they knew about what it was, and were told of it before. And it was Things now being quiet, I called sir William not forgotten, that when I gave charge to the Button one commission-day unto me, and earl of Essex, to answer truly to the positions in spake thus to him: Sir William Button, you the libel, I named the case of my lord of De- have followed this business from the first, and vonshire and the lady Rich, as if I had com- have been present at the acting of all things. pared this cause unto theirs. When afterwards Have you ever seen me, in word or deed, do the earl's counsel took exception to the libel, it any matter that doth not become me?" (för inwas given out, that they were animated by me deed hitherto I had no way declared myself, to oppose; whereas I never spake with them, because we were not come to consider of the nor knew any thing of their purpose. And ever proofs.) What is then the cause that I am that was one, that there were delays used. Yea, thus complained upon, that I cannot one day it was to my face delivered as a threat, that be quiet? His answer unto me was, 'That archbishop Grindal had been overthrown for the lord chamberlain was every way a kind fanot giving consent to the divorce of Dr. Julio,ther to his children; but in this of his daughaş implying, that the same would be my case. ter, he was so passionate till it had an end, About this time, the lords, and the rest of the that he lay as on a grid-iron, broiling till the feoflees, were to meet at Mr. Sutton's hospital, matter were accomplished.' Quoth I, It about the settling of it. The day that we were shall not be delayed by me.' Now, the counto come thither, my lord chamberlain, in the sel on both sides drew on to inform us, whereprivy gallery at Whitehall, shewed his anger to- in I noted, that whereas the libel was laid in wards me, that we had not sent for the keys to nature of maleficium versus hanc, my lady's his lordship, and that he might deliver over the counsel, upon the shutting up of the cause, cause. But when I came to the Charter-house, would not apply themselves thereunto, neither there was delivered me a letter, written all with would they willingly hear of it; which seemed my lord's own hand, and directed to the lord strange, since all the books which they brought, archbishop, the lord chancellor, and the lord particularly to the cause, did mention that, privy seal; wherein he did twice take excep- and Doctor Steward had publicly and exprestion to me by name, and, in a sort, braved me, sively said,That it was that which they did that so he might pick a quarrel to me; where- mean.' This troubled me somewhat, because unto I replied not, but bore it with patience. I perceived that they the elves could not tell what to make of it. But afterwards fell out another matter, which very much alienated my judgment from the cause: It appeared, that sentence could not be given, till the time that the king entering his progress, was gone as far as Windsor, and then his majesty was soon to depart to Farnham. Sir Daniel Dun told us, That he was to attend the king in progress; that he must be at Farnham; that he was old and lame; that it would be too great a trouble for him to come back again at the day of sentence.' He therefore prayed, A little before Whitsuntide, his lordship was very kind to me, and of his own accord proffered me a chamber at Greenwich, which my lord, my predecessor, had; but after twice proffering of it, and my accepting of the same, his lordship fell off strangely, and I never spake of it more. These complaints and threats made me to suspect all was not well; for what needed these things to me, in a matter of justice? The time now grew on, that his majesty was to go abroad in progress on a Sunday, which was the day before the counsel for my lord were to put in their answers and exceptions to the libel. The lord privy seal shewed me a letter That we would hear him deliver his judgment of the whole matter.' This proffer seemed |