DUKE OF NORFOLK'S CASE.-SESSIONS 1692, 1699, 1700.

Neither Judgment at law nor Ecclesiastical sentence.-Counsel heard.-Bill ordered to be received.-Protest.-Reasons for passing Bill.-Duchess' Petition.-Charge against her. Her answer demanding a more specific charge. Amended charge.-Duchess called in and delivers her Answer.Recrimination.-Witnesses examined.-Result of Evidence.-Resolution against Proxies.-Bill rejected.-Action at law against Adulterer.-Statute of Limitations pled.-Verdict.-Bill (next Session) again presented.Record of Judgment at law produced.-Bill rejected.-Seven years afterwards Bill presented a third time.-Fresh evidence adduced.-Resolution against Proxies repeated.-Bill read second time.-Clause inserted securing provision for Duchess.-Bill passed.

THE bill was presented on the 7th January, 1692. On the following day a petition was tendered by the Duchess, "To the Right Honourable the Lords Spiritual and Temporal in Parliament assembled," praying that she might be heard before the said bill should be received. It was ordered that her Grace should have notice of the bill, and might be heard by her counsel what she had to object against the receiving it, at which time also the Duke might be heard by his counsel for the said bill if he should think fit.

January 12.-After hearing counsel what they could object for the Duchess against receiving the bill, as also on the Duke's behalf, what they could state for receiving the same; and after consideration of what was offered on either side, and a long debate thereupon; this question was put: "whether the bill should be received?” It was resolved in the affirmative: a decision protested against by four Bishops and fifteen Peers, who, however, have not recorded the grounds of their dissent in the Journals. The bill was then read a first time.

As this bill has formed substantially the pattern of all subsequent enactments of the same description, it seems not improper to insert it here at length. It is entituled "An Act to Dissolve the Marriage of Henry Duke of Norfolk, Earl Marshal of England, with the Lady Mary Mordaunt, and to enable the said Duke to marry again," and proceeds as follows: "Forasmuch as Henry Duke of Norfolk and Earl Marshal of England having been married to the Lady Mary Mordaunt, hath made full proof that his said wife is guilty of and hath committed adultery on her part; and forasmuch as the said Henry, Duke of Norfolk, hath no issue, nor can have any probable expectation of posterity to succeed him in his honours, dignities, and estate, unless the said marriage be declared void by

authority of Parliament, and the said Duke be enabled to marry any other woman; the King and Queen's most excellent Majesties, upon the humble petition of the said Henry Duke of Norfolk, having taken the premises into their royal consideration, for divers weighty reasons are pleased that it be enacted, and be it enacted, by the King and Queen's most excellent Majesties, and by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, that the said marriage between the said Henry Duke of Norfolk and the said Lady Mary, his wife, shall from henceforth be null and void; and is by authority of this present parliament declared, adjudged, and enacted to be null and void to all intents, constructions, and purposes whatsoever; and that it shall and may be lawful to and for the said Henry Duke of Norfolk, at any time or times hereafter, to contract matrimony, and to marry as well in the lifetime of the said Lady Mary as if she were naturally dead, with any other woman or women with whom he might lawfully marry in case the said Lady Mary was not living; and that such matrimony, when had and celebrated, shall be a good, just, and lawful marriage, and so shall be adjudged, deemed, and taken to all intents, constructions, and purposes; and that all and every children and child born in such matrimony shall be deemed, adjudged, and taken to be born in lawful wedlock and to be legitimate and inheritable, and shall inherit the said dukedom of Norfolk, office of Earl Marshal of England, and all other earldoms, dignities, baronies, honours and titles of honour, lands, tenements and other hereditaments, from and by their fathers, mothers, and other ancestors, in like manner and form as any other child or children born in lawful matrimony shall or may inherit, or be inheritable, according to the course of inheritances used in this realm; and to have and enjoy all privileges, and pre-eminences, benefits, advantages, claims, and demands, as any other child or children born in lawful wedlock may have or claim by the laws or customs of this kingdom. And be it further enacted, that the said Henry Duke of Norfolk shall be entitled to be tenant by courtesy of the lands and inheritance of such wife whom he shall hereafter marry; and such wife as he shall so marry shall be entitled to a dower of the lands and tenements of the said Henry Duke of Norfolk, and of such estate whereof she shall be dowable, as any other husband or wife may or might claim, have, or enjoy; and the child or children born in such marriage shall and may derive, and make title

by descent or otherwise, to and from any their ancestors, as any other child or children may do, any law, statute, restraint, prohibition, ordinance, canon, constitution, prescription, or custom had, made, exercised, or used to the contrary of the premises or any of them in anywise notwithstanding. And be it further enacted, by the authority aforesaid, that the said Lady Mary shall be, and is hereby barred and excluded of and from all dowers and thirds, and of and from all right and title of dower and thirds, unto or out of any the honours, manors, lands, or hereditaments of the said Duke; and that all conveyances, jointures, settlements, limitations, and creations of uses and trusts of, into, or out of any honours, manors, lands, or hereditaments at any time heretofore made by the said Duke, or any of his ancestors or trustees, unto or upon or for the use or benefit of the said Lady Mary, or any the issue of her body, or for raising, discharging, or countersecuring any the manors, lands, or hereditaments of the said Lady Mary, or any of her ancestors, shall be from henceforth utterly void and of none effect; and all and every the said honours, lands, manors, or hereditaments of the said Duke, or any of his ancestors or trustees, shall from henceforth remain, and be to and for the use and benefit of the said Duke, and such other person or persons, and for such estates and interests, and in such manner and form, as if the said Lady Mary was now naturally dead, without any issue of her body. And also that all limitations and creations of any use, estate, power, or trust made by any of the ancestors of the said Lady Mary unto, or for the use or benefit of the said Duke, his heirs, or assigns, out of any the manors, lands, or hereditaments of any of the ancestors of the said Lady Mary, shall be from henceforth void and of none effect."

A paper containing the following "REASONS" for passing the bill was delivered in on the Duke's behalf:-"The not having a sentence for separation from the Ecclesiastical Court is thought to be no objection against the receiving or passing the bill, for these reasons, viz.:-1. The House acting in this case in their legislative capacity, all things must proceed originally by bill. 2. A sentence in the Ecclesiastical Court can give the Duke no relief as to what he seeks by his bill, viz., to dissolve his marriage, and enable him to marry again; but that relief must spring originally from the Parliament without relation to the Ecclesiastical Court. 3. In case there was such a sentence, yet it would afford no assistance in this case; for the Parliament, in cases of this nature, do

not rely upon any such sentence for a satisfactory proof of the fact, but hear witnesses viva voce, and thereupon proceed. 4. There are witnesses now living to prove the fact, who may be examined viva voce; whereas, if they die during the tedious proceeding in any inferior court, then there can be no other proof but depositions taken in writing. 5. That Mrs. Wharton's case (e) was received originally in Parliament.

January 13.—The Duchess presented a petition setting forth that this proceeding had come as a surprise upon her; and therefore humbly praying that she might have a copy of the particular charge against her, with the names of the witnesses, and reasonable time to answer the same before any farther proceedings should be had upon the bill.

January 14.—It was ordered that the Duke should bring in the charge against his Duchess, and particularly to the person, time, and place. The Duke, accordingly, exhibited the following charge: "The charge is for the crime of adultery. The person charged to commit the same with the said Duchess is John Germaine, of the parish of St. Margaret's, in the liberty of Westminster. The times when the said crime was committed were between the months of June and December 1685, and several times since. The places where the said crime was committed are at Whitehall, Windsor, and within the parishes of St. Margaret's Westminster, St. Martin'sin-the-Fields, St. James's, St. Ann's, within the liberty of Westminster, and in the parish of Lambeth, in the county of Surrey."

January 19.-The Duchess put in the following answer: "The respondent is advised that the charge against her, as to time and place, is too general, and is not pursuant, nor doth answer, the end of your Lordships' order of the 14th instant. Wherefore, she doth humbly pray your Lordships will not oblige her to make any further answer till the Duke shall bring in a particular and certain charge, as to time and place, against her. And this respondent doth the rather humbly insist that your Lordships would please to require the Duke to be particular and certain in these material circumstances of his charge against her, for that it appears by his own showing therein, that the supposed crimes alleged to be committed were above six years

(*) Mrs. Wharton's was not a case of divorce for adultery. The act (passed in 1690) was entitled, An Act to make void a Marriage between Mary

Wharton an Infant and James Campbell, Esq. It commenced in the House of Commons.

before the bill was offered to the House, during most of which time, at the advice and by the approbation of the Duke, she was and continued beyond the seas, to ease him in his charge; he frequently declaring that "when he should be more easy in his fortune, they should live together."

The Duke having delivered in a second charge, it was ordered, that the Duchess should have a copy of it, and that she or her counsel should attend to answer the same.

The amended charge put in by his Grace repeated, in terms, the former accusation, with the following additional particulars, bringing the allegation down to within a year of the commencement of proceedings:-"The times and places when the said crime was committed were, at Whitehall, in the months of June, July, August, some or one of them, in the year 1685; at Windsor, in the months of July, August, or September, some or one of them, in the said year 1685; in the parish of St. Margaret's Westminster, March, April, May, June, some or one of them, in the year of our Lord 1690; and in the said parish of St. Margaret's Westminster, in the months of July or August 1690; in the parish of Lambeth, in the county of Surrey, in the months of May, June, July, August, some or one of them, in the year 1691."

January 20.-The Duchess presented a petition setting forth, "That your petitioner was served with an order late last night to attend your Lordships this day, by 11 of the clock, either in person or by her counsel, to answer a new charge brought in against her by her husband, the Duke of Norfolk. Your petitioner is advised that, for her just defence, it is necessary to allege in her answer several special matters relating both to the Duke and herself; that, in this short time, she finds it impossible to instruct counsel to prepare such answer as she is advised it is necessary to put in; wherefore your petitioner humbly prays your Lordships that she have convenient time to put in her answer to the said charge." It was ordered that her Grace should peremptorily answer to the said charge to-morrow, at 11 o'clock in the forenoon.

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January 21.-The Duchess was called in, came to the table, and had a chair set for her; and delivered her answer, saying, "that was all she could prepare in so short a time; and which answer was as follows: "I, Mary Duchess of Norfolk, under protestation that the charge of adultery given in against me is general, insufficient, and such as I humbly conceive I am not bound by law to give answer unto; yet knowing my own innocency, this